An intruder in your garage, what would YOU do?

[OldMarksman]

Technically, we have a castle doctrine.

Legally you have a castle doctrine.

 

[TimSr]

They don't give you the right to shoot. Period. They MAY defend you if you are in the right and shoot. If you are in the wrong, they do NOT apply at all.

In Ohio it shifted the burden to the state to prove the shooting was NOT justified. That was its greatest impact here.

 

[OldMarksman]

Posted by TimSr:

In Ohio it shifted the burden to the state to prove the shooting was NOT justified. That was its greatest impact here.

Have you read this?

The Buckeye state remains the last in the country to retain the old model of self-defense as a true affirmative defense, keeping the burden of persuasion for self-defense on the defendant, by a preponderance of the evidence. Simply because it failed to flow, as did every state, with the historical and morally appropriate shift of the burden of persuasion n self-defense to the state. This sad state of affairs makes Ohio a true laggard in properly protecting the due process rights of its residents.

 

[Frank Ettin]

In Ohio it shifted the burden to the state to prove the shooting was NOT justified. That was its greatest impact here.

No, that is incorrect, as previously pointed out to you in this post:

Have you got some legal authority for that? According to this article that was not the case as of July of 2013:

Of the 50 states in the US, 49 of them require the State to disprove a defendant’s claim of self-defense, beyond a reasonable doubt. Ohio, on the other hand, requires that the defendant prove self-defense by a preponderance of the evidence....

Here's the relevant Ohio law (2901.05 Burden of proof - reasonable doubt - self-defense):

2901.05 Burden of proof - reasonable doubt - self-defense.

(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.

(B)

(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

(2)

(a) The presumption set forth in division (B)(1) of this section does not apply if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.

(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.​

(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence.​

(C) As part of its charge to the jury in a criminal case, the court shall read the definitions of "reasonable doubt" and "proof beyond a reasonable doubt," contained in division (D) of this section.

(D) As used in this section:

(1) An "affirmative defense" is either of the following:

(a) A defense expressly designated as affirmative;

(b) A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.​

(2) "Dwelling" means a building or conveyance of any kind that has a roof over it and that is designed to be occupied by people lodging in the building or conveyance at night, regardless of whether the building or conveyance is temporary or permanent or is mobile or immobile. As used in this division, a building or conveyance includes, but is not limited to, an attached porch, and a building or conveyance with a roof over it includes, but is not limited to, a tent.

(3) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as a guest.

(4) "Vehicle" means a conveyance of any kind, whether or not motorized, that is designed to transport people or property.​

(E) "Reasonable doubt" is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. "Proof beyond a reasonable doubt" is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person's own affairs.

Let's break that down to try to understand it:

1. Self defense would be an affirmative defense (as defined at 2901.5(D)(1)) to a criminal charge relating to an alleged unlawful use of force.
   
   
2. Therefore, if the accused claims self defense, as provided in 2901.5(A):

   ...The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.....

   
   
3. However, 2901.5(B)(1) provides, in pertinent part (emphasis added):

   ...a person is presumed to have acted in self defense or defense of another ... if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force....

   
   
   • To understand what that means we need to understand what a "presumption" is.
     
     
     • A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.
       
       
     • So 2901.5(B) provides that under certain circumstances one does not have to prove the elements of self defense directly; he will be presumed to have used force in self defense. However, to have the benefit of that presumption, certain facts must be true; so the accused will have the burden of producing evidence and proving those facts, i. e., that:

       ...the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force. ...

       
       
     • Note also the the presumption provided under (B)(1) will not apply under the circumstances described (B)(2).
   
   
4. The presumption provided under (B)(1) is rebuttable by a preponderance of the evidence (2901.5(B)(3)).
   
   
5. So if the accused claims self defense, under Ohio law he will either have to prove the elements of self defense by a preponderance of the evidence or prove that the predicate facts entitling him to a self defense presumption under 2901.5(B)(1) were true.

 

[TimSr]

That was changed a year or so ago.

 

[Frank Ettin]

That was changed a year or so ago.

Then let's see evidence.

 

[Frank Ettin]

That was changed a year or so ago.

To expand on my earlier request for evidence:

The version of 2901.5 I linked to and quoted in full in post 124 came from this site: LAW Writer^® Ohio Laws and Rules. The URL is: http://codes.ohio.gov/. It appears to be the State site for on-line access to Ohio statutes and regulations. If searching for Ohio statutes on either FindLaw or Cornell University Law School Legal Information Institute you will be linked to that site.

According to LAW Writer^® Ohio Laws and Rules, the statutes published are:

Current with legislation signed by the Governor as of 7/16/2015

So if you continue to claim that the version of 2901.5 I quoted and linked to is not current, you'll need to come up with some pretty good evidence.

As I explained in post 124, Ohio law is not what you seem to think it is.

 

[TimSr]

You have the most recent version. I was talking about the old article you and Oldmarksman drummed up. They look like the arguments that were used for changing the law to its current form.

As I explained in post 124, Ohio law is not what you seem to think it is.

As you explained it, the law does not say what you think it says.

 

[Frank Ettin]

You have the most recent version. I was talking about the old article you and Oldmarksman drummed up. They look like the arguments that were used for changing the law to its current form....

Nonsense.

The statute, 2901.5, was last amended in 2008. The article that OldMarksman and I linked to was published on 31 July 2013.

As I explained in post 124, Ohio law is not what you seem to think it is.

As you explained it, the law does not say what you think it says.

Phooey! You have the language of the statute and my analysis of what it means and how it would apply. So prove me wrong.

 

[SocialAnarchist]

Frankly, even if the laws says you can, what kind of person shoots and kills somebody over property? Seriously what is so valuable that you own that someone needs to die over it?

I am not talking about someone threatening you or making menacing moves towards you. I am talking about Smedley the burglar attempting to steal your weed eater or your TV. You are going to shoot him, and potentially kill him, over that? Even if the law says you can my bet would be the lawyer fees will be more than the value of whatever was being stolen. Better to up your insurance on your personal property than waste your retirement account defending yourself over killing someone stealing from you.

 

[Stevie-Ray]

I am not talking about someone threatening you or making menacing moves towards you. I am talking about Smedley the burglar attempting to steal your weed eater or your TV. You are going to shoot him, and potentially kill him, over that? Even if the law says you can my bet would be the lawyer fees will be more than the value of whatever was being stolen. Better to up your insurance on your personal property than waste your retirement account defending yourself over killing someone stealing from you.

Maybe not. But, what if you confront the guy with a gun and he calls your bluff? "Sorry, but you can't shoot me over stuff!" As I said in another thread, criminals are getting bolder. So instead, as he tries to shuffle past you, you kick him in the crotch, and while he's writhing in pain, you hold the gun on him until the police come, whom hopefully, you've already called. You didn't kill him, he didn't get away. And no, I'm not "letting him go with my stuff if that's all he wants." I worked too damn hard for what I have, have been the victim of several thefts, and the victim of higher insurance premiums, simply because too many people in the area have the same attitude, "Meh, my insurance will cover it." When he tries to sue me for "assault and battery" or "barring his exit" even though he was attempting to make off with my property, I'll deal with the idiots in court. Personally, I'm sick to death of simply "letting criminals go." And anybody that doesn't like how Texas deals with intruders, hasn't spent any time in the burbs of Detroit.

 

[OldMarksman]

Posted by Stevie-Ray:

But, what if you confront the guy with a gun and he calls your bluff?

Bad situation for you to be in. Avoid it.

When he tries to sue me for "assault and battery" or "barring his exit" even though he was attempting to make off with my property, I'll deal with the idiots in court.

At which point you will most certainly have very little influence, if any at all. How would one "deal with the idiots in court"?.

Personally, I'm sick to death of simply "letting criminals go."

For those of us who have done that, some of us understand that that is a good outcome indeed.

And anybody that doesn't like how Texas deals with intruders, hasn't spent any time in the burbs of Detroit.

What do you know about "how Texas deals with intruders"?

 

[Frank Ettin]

...When he tries to sue me for "assault and battery" or "barring his exit" even though he was attempting to make off with my property, I'll deal with the idiots in court. Personally, I'm sick to death of simply "letting criminals go."....

By all means, do whatever you want. And fortunately enough people have been posting in this thread who have demonstrated a much firmer grounding in reality and will not be following your example.

Clearly you're frustrated and don't like the way things are. But know what? The world doesn't care. If you use force beyond what can be legally justified, you will not be happy with the way things turn out.

You apparently don't care, but the point of these discussions is to help people understand what is likely to be legally justifiable and what is not likely to be legally justifiable. Such understanding can help people make better decisions.

So we really don't care that you don't care, and your insouciance doesn't contribute to the discussion.

 

[45_auto]

But, what if you confront the guy with a gun and he calls your bluff?

Depending on whether you pull the trigger or not, you're about to get either an ass-whipping or an extremely expensive legal lesson on why you were stupid to bluff with a gun.

 

[Stevie-Ray]

How would one "deal with the idiots in court"?.

With a jury of my peers, of course.

2. If you come home and someone has broken into your house/attached garage in your absence, that particular law doesn't offer any protection if you decide to go in after them because the house wasn't occupied when the break-in occurred.

That would change when you come home, notice the lights are on in the garage, and figuring you left them on after finishing with the tractor, walk in and find yourself face-to-face with somebody making off with your valuables. I suppose most of you here would say, "Oh my God, the lights are on! I need to call the police so they can clear my garage!" Or better yet, "Here, let me get the door for you!"

What do you know about "how Texas deals with intruders"?

Seriously? Texas has taken it to the criminals and the authorities are agreeing. This isn't the law everywhere, but should be. We would find a lot less criminal activity. Just a bit: http://godfatherpolitics.com/9613/criminals-beware-texas-homeowners-shooting-intruders/

So we really don't care that you don't care, and your insouciance doesn't contribute to the discussion.

Where does it say I don't care? I don't care that YOU don't care, to be sure, but your passivity, that you cherish so much, IS contributing to higher criminal activity and higher insurance rates.

Depending on whether you pull the trigger or not, you're about to get either an ass-whipping or an extremely expensive legal lesson on why you were stupid to bluff with a gun.

This is so idiotic, it doesn't even deserve a response, but since you're among the holier-than-thous, I'll bite. So there is only two outcomes possible. I end the guy and spend my life savings on my defense, or he kicks my ass, because virtually everybody can kick my ass. Brilliant. Nobody has ever foiled a crime without taking a life or getting their ass kicked. I learn something new everyday.

 

[OldMarksman]

Posted by Stevie-Ray:

With a jury of my peers, of course.

Just for accuracy, you will not have a "jury of your peers". That was an old English concept, and it does not apply here. You are entitled to a fair and impartial jury.

That [the house wasn't occupied when the break-in occurred] would change when you come home,... walk in and find yourself face-to-face with somebody ....

Do you have a legal basis for that opinion?

Note: "occupied" means different things in different states.

I suppose most of you here would say, "Oh my God, the lights are on! I need to call the police so they can clear my garage!" Or better yet, "Here, let me get the door for you!"

Yes, most of us would call the police. Most of us realize that it would be extremely foolish to enter a building if one suspected that there could be a violent criminal inside.

Seriously? Texas has taken it to the criminals and the authorities are agreeing. This isn't the law everywhere, but should be. We would find a lot less criminal activity. Just a bit: http://godfatherpolitics.com/9613/cr...ing-intruders/

Simple anecdotes are meaningless in discussing any serious subject, but when one reads an editorial such as the one cited that starts with a mention of the Second Amendment, meanders from that into some examples involving use of force laws, mis-states the substance of the Castle doctrine in Texas, and would try to make one believe that a police comment about whether one will be charged has any legal meaning, one should know to put it down and ignore it without wasting time on it.

 

[SocialAnarchist]

I'll add to what I said above. Nothing I own is worth ending up dead or in prison for a good portion of the rest of my life.

It has nothing to do with being passive or a coward. It has to do with risk versus reward. Nothing in my life, other than my life or the lives of those I love, or under the right circumstances perhaps other victims of a violent crime, is worth my risking my life over. I am certainly not going to get involved in a confrontation, that I may die in, over my possessions.

 

[Stevie-Ray]

Just for accuracy, you will not have a "jury of your peers". That was an old English concept, and it does not apply here. You are entitled to a fair and impartial jury.

It does apply here-it's called semantics. Have you ever been part of a jury selection?

Do you have a legal basis for that opinion?

Note: "occupied" means different things in different states.

Yes, in my state, it's called Stand Your Ground. You have a right to be in your garage, the criminal you happened upon (again, reflecting my hypothetical above), does not. You need only to read the latest edition of NRA's The Armed Citizen for a prime example in Florida, where a man came home to find 2 criminals inside. He killed 1 and injured one. In my case above, I didn't even mention taking a life.

Yes, most of us would call the police. Most of us realize that it would be extremely foolish to enter a building if one suspected that there could be a violent criminal inside.

Read it again. Where did I say I suspected there could be a violent criminal inside? In fact I said quite the opposite. Do you clear your house when you come home, check for damage, see that everything is the same as when you left? I do, as long as I'm going to be gone for even a few hours. If I suspected someone was in there, I would simply call the police. Simple as that. Don't try to make it something it's not. Yet, just because you don't suspect it, doesn't mean they are not there, or haven't been there. And don't make me bring up those instances-everyone should know about them, by now. But, I'm certainly not calling the police each and every time I come home.

 

[Frank Ettin]

Just for accuracy, you will not have a "jury of your peers". That was an old English concept, and it does not apply here. You are entitled to a fair and impartial jury.

It does apply here-it's called semantics. Have you ever been part of a jury selection?

Ignorant twaddle.

There is nothing in our laws that entitles anyone to a jury of his peers. One is entitled to an impartial jury (Constitution, Sixth Amendment); but you have no grounds upon which to insist that members of your jury be "your peers", i. e., from the of the same societal group, age, status, background or education, etc., as you.

(The notion of a "jury of one's peers" comes from Magna Carta and was indeed intended to refer to being judged by one's equals. Magna Carta was forced on King John by the feudal barons to protect their interests. Their first concern was that they be judged only by nobles of similar rank. And indeed until relatively recently, a British noble charged with a crime was entitled to be tried in the House of Lords. The last trial in the House of Lords was in 1935, and the trial jurisdiction of the House of Lords was abolished in 1948.)

This is how jury selection works:

• Each side gets a set number of peremptory challenges and can thereby excuse a limited number of prospective jurors without stating a cause.
  
  
  • A lawyer owes an absolute duty of loyalty to his client. He is required to exercise his professional judgment in the best interests of his client.
    
    
  • So he will use his peremptory challenges to exclude those people from the jury who he, in the exercise of his professional judgment, believes will be least receptive to his client, his client's position, the witnesses his client might be offering and/or his client's legal arguments.
    
    
  • At the same time he will need to use his peremptory challenges to exclude those people from the jury who he, in the exercise of his professional judgment, believes will be most receptive to his client's opponent's position, etc.
  
  
• But he has only a limited number of peremptory challenges. And the other side will be doing exactly the same thing.
  
  
• So the result is that if each side has, say, ten peremptory challenges, the lawyer on each side will excuse without cause the ten possible jurors he has decided will be least desirable from his particular perspective. If there are 50 jurors in the jury pool, the jury will then consist of persons from the remaining group of 30, unless one side or the other can convince the judge of actual bias.
  
  
• The result of the process is probably going to be the most impartial jury available out of that jury pool of 50 people.

...in my state, it's called Stand Your Ground.....

Except that you have no clue as to how Stand Your Ground or Castle Doctrine laws are applied. To begin your much needed education, study this thread carefully.

 

[2ndsojourn]

From Stevie-Ray:
"It does apply here-it's called semantics. Have you ever been part of a jury selection?"

Dude, you're arguing the law with lawyers.