There has been much discussion lately, in light of the trial of George Zimmerman in Florida, about self-defense laws. The law of self-defense comes from the common law (historical judicial announcements of the law, sometimes over centuries. As a result though, it is subject to modification by the legislatures, or by the courts over time.
Traditionally, from the common law any person is generally entitled to use “reasonable force” to defend themselves, or someone else, from the loss of property, or from bodily harm or death. What force is “reasonable” depends of the circumstances, and particularly the force being defended. One can’t for example use deadly force in response to less than deadly force. One can’t use a gun (generally, with exceptions) to respond to a fist fight. The responsive force can’t be “excessive,” that is, can’t be more than is necessary to prevent the harm being defended against.
One is generally also not entitled to use “deadly force,” the greatest degree of force possible (that can result in serious bodily harm of death), just to defend one’s property (someone running away from a shoplifting, or someone picking up your purse or wallet and running away). This leads many to repeat usually false stories about people breaking into one’s home, and then suing the resident when the resident uses force to defend the home. These stories are generally false, because the common law, sometimes knows as the “Castle Doctrine,” is that one is allowed to assume that if someone is in their home, at night, without permission, that serious bodily harm may result, and therefore serious bodily harm in response is usually justified (“One’s home is their castle.”).
In addition, the common law generally requires, before one can use deadly force to defend even themselves, they must not be the aggressor in the confrontation, and they must first attempt to retreat if they can, unless they are in their own home where they have no duty to retreat – another part of the “Castle Doctrine.” The philosophy behind these common law principles is that physical harm and violence is never preferred, and that bodily harm is not justified by loss of mere property. It is deemed better to run away, or lose your property, and let the police and courts sort it out later, than to have anyone hurt or even killed if it is avoidable.
And in most states that follow this traditional common law, the person charged with the crime and who claims they were defending themselves has to prove their claim. The State doesn’t have to prove it wasn’t justified defense.
The so-called “stand your ground” laws are legislative modifications of these common law doctrines. They remove, in some cases, the “duty to retreat,” even in public, and extend the “Castle Doctrine” outside of one’s home. Such laws are generally based on the principle that one should not be required to run away, and can fight, even kill if necessary, even in public, if sufficiently threatened. And many of those laws also shift the burden of proof, requiring the State to prove the person wasn’t justified in defending themselves.
Such laws as have been recently discussed are not the law in Ohio, and a greatly different result may have occurred if the Zimmerman case were in Ohio. Two recent cases illustrate this point.
In one case from Butler County, Ohio, an altercation occurred in a night club over someone’s girlfriend and an allegation of cheating. During the fight, one of the persons, I’ll call them L., picked up a barstool and started swinging it as a weapon. The other person, I’ll call them G., found a machete on the floor (allegedly – don’t ask me what kind of night club this is), and picked it up to defend himself from the barstool attack – instead of leaving the scene. Using the machete, G. severed a finger from L. G. was charged with Felonious Assault, a second degree felony, which is assault either with a deadly weapon or that causes serious bodily harm.
At the trial, G. tried to get the Court to instruct the jury that he was entitled to defend himself from the bar stool attack, and use the machete – “deadly force” – to do so. The trial court refused, and G. was found guilty. He appealed, arguing that he was entitled to self-defense and an instruction to the jury.
The Twelfth District disagreed, and affirmed the conviction. Noting the Ohio precedent discussed above, G. wasn’t entitled to a self-defense argument. Although part of the reason for denying that argument was that G. argued that he didn’t even use the machete but just “showed” it as a deterrent (denying he swung it), in which case it is inconsistent at the same time to argue what he did was in self-defense, in addition the evidence was clear that G. also didn’t resort to the deadly force as his only means of escape and avoiding injury, which is the law in Ohio. Specifically by G.’s own testimony he did not go out the unlocked front door that was behind him, instead of fighting, he violated the “duty of retreat” because the use of force was not the only means available to avoid being injured himself. Because G. could have just left, and had other means to diffuse the situation, he had no right to claim, argue, or have the jury instructed, on self-defense. His conviction was affirmed.
The case is State v. Gomez, was decided July 1, 2013. The links may change but the case can currently be found at:
http://www.sconet.state.oh.us/rod/docs/pdf/12/2013/2013-ohio-2856.pdf
In another recent case, two men got into an altercation on a public street in Cincinnati, over a debt. S., who was owed the money, was sitting in his car and saw C., who allegedly owed the money, across the street. S. got out of his car to confront C. When C. refused to pay, S. started cussing him and threated to “kick his ass.” C. then pulled a gun, told S. he “was going to die,” and shot S. at close range, and shot a couple more times when S. fell to the ground. S. though did survive, although sustaining numerous serious injuries.
C. turned himself into police. He claimed that he knew S. was known to carry a gun, and that he had his hands in his pockets during the confrontation. C. also said that S. was known to have a violent history, a criminal record, and including gun charges. He said he shot S. because he was afraid S. would shoot him first. C. was charged with attempted murder and felonious assault, and was convicted at trial, but waived a jury so it was a judge or “bench” trial.
On appeal he argued he should not have been convicted, among other reasons because he only shot S. in self-defense. The First District Court of Appeals agreed with the trial court, it was not self-defense. First, C. only threatened to “kick his ass,” and according to witnesses never actually raised his hand to S., and in response S. pulled a gun and shot him several times. And C. could also have just run away. Self-defense, in Ohio, does not apply in those circumstances.
The case is State v. Carmen, was decided July 31, 2013. The links may change but the case can currently be found at:
http://www.sconet.state.oh.us/rod/docs/pdf/1/2013/2013-ohio-3325.pdf
These cases show that the law that was applied in the Zimmerman case would not have applied in Ohio and that in Ohio a much different result may have occurred. To some extent, these cases also give grounds to argue against the laws that applied in Florida, resulting in street violence and maybe unnecessary harm.
More information about my practice and background can be found at:
I hope readers find this information helpful and interesting.
Thomas G. Eagle, Attorney
Eagle Law Office 