Where in the Constitution, or in SCOTUS rulings, does it extend the "civil right" to have the reasonable expectation to the "right to expect absolute saftey" in public areas? Common law for centuries has recognized it for the privacy of one's home. Remember we are talking a license to a "right", just as the Second Amendment gives us the license to the "right" to bear arms. If you cannot find one, then more than likely it will be challenged, especially in light of the numerous cases already in Oklahoma Courts and and before the Oklahoma Supreme Court over this very section of law.
The Constitution is not a "grant" or "license" of rights to people, it is a restriction on the
federal government. Through the 14th Amendment, some of these restrictions have also been applied to the states. You appear to believe that unless the Consitution grants a "right to absolute safety" the entire Oklahoma statute you have quoted can be overturned because there is no right in the Constitution. I believe that is incorrect for a myriad of reasons.
1. As mentioned, the states have powers that the Federal government do not and they may grant rights that the Federal government may not. For example, some states have a looser standard of evidence allowed in a courtroom than what the federal government would allow.
2. The Consitution is a restriction on federal and
sometimes state governments. Its restrictions apply only to them.
3. The common law Castle Doctrine predates the United States and goes back hundreds of years. It has been made a part of statutory law in most states and there are small but important variations in how it works from state to state; but I've yet to hear of any example in any field of law where a court decided to invalidate entire ancient principles of law because a state legislator drafted his interpretation of that law too broadly.
I don't think it's irrational to discuss this issue, but you are free to your opinon.
I think discussing the law is perfectly rational. I don't think your conclusion is rational because I don't see any legal basis for your fears.
Again, it's been a couple years since being here on this board, and I knew it has a Law and Civil Rights section, but I can already see it's not really the place to discuss this issue.
It is a perfect place to discuss the issue. There is an impressive amount of legal knowledge in this forum.
Al, the organ grinder in the park....the business guy on the sidewalk selling his art...the public arena vendor selling cola...the carpenter who's office is his truck....business owners are not restricted to a specific location. Extending the "right to expect absolute safety" to businesses does not restrict it to brick and mortar in any of the verbage. It's dangerous territory. It states ANY business.
Al, has already made an argument for why your interpretation of "place of business" may be too broad. Let me just point out another problem with your interpretation
First, you are too hung up on the "right of absolute safety" language. I'll admit, it isn't the best language choice; but all it says is that the Oklahoma legislature "hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes or places of business." It isn't promising that right to them. It is simply giving an overall direction, much like "life, liberty, and the pursuit of happiness."
Second, in order for the Castle Doctrine to apply, you must "forcibly and unlawfully enter" said place of business or forcibly remove someone against their will from said place of business. Even if we accept your definition of "place of business", I am having a difficult time imagining a scenario where someone can "forcibly and unlawfully enter" an organ grinder's place of business in a way that would invoke this statute without also raising half a dozen other clear justifications for self-defense. Perhaps you can better explain what type of scenario you see as problematic?
Tennessee v Garner proves States giving "rights" to fire upon fleeing felons unconsitutional and made sweeping changes to use of deadly force. (which Oklahoma has the same laws on it's books)
Again, you've taken a case and read it much, much to broadly. In Tennessee vs. Garner, the officer used deadly force against a fleeing suspect after the suspect ignored the order to halt. The officer used deadly force even though he stated he was reasonably sure that the suspect was unarmed and that it appeared to be a teenager. The court held that the seizure of a person by deadly force was highly instrusive and that the
governmental interest in doing so was not sufficient to outweigh the right
in this particular set of facts
Tennessee vs. Garner applies to the government as a restriction. Not citizens. Note that several states have laws authorizing the use of deadly force in circumstances similar to Tennessee vs. Garner and none of those statutes have ever been held unconstitutional.
I wish you the best, but like I said, need to move this to a legal board.
The problem isn't the board. It is that you have not shown any legal foundation for your argument and you misinterpret existing statute and case law in a way that suggests you aren't very familiar with the law yourself.
And a poorly written law, just as we found in the case of Garner, can forever change decades of case law in a sweeping motion. Having this "presumption" which has for centuries been exclusive to homeowners, could see itself under attack by attaching that same "presumption" to busineses as well.
This is the closest you've come yet to making a coherent legal argument for how the new Oklahoma statute could conceivably produce a problem - and even it is so vague that I have to fill in the blanks and guess at what you mean.
You appear to be concerned that the Oklahoma law is written so broadly that someone will shoot someone in a circumstance that results in a bad set of facts for self-defense advocates. The problem is, as pointed out in the previous posts, it is very difficult to imagine such a scenario from the law as written. Even with your broad interpretation of business, one must also forcibly and unlawfully enter said business. Under what scenario is someone who shouldn't be shot, going to be shot in a way that a case can even develop?
Assuming that the above happens and the case is brought, it would first have to get past Oklahoma laws restraining civil suits against justified self-defense shoots. Assuming it can successfully do that, it would then have to make its way to a higher court. Once in that higher court, it would somehow have to convince said court to overturn principles established in English common law hundreds of years ago prior to the existence of our nation.
Do you see why some of us are having a hard time seeing this threat, let alone assessing the probability of the threat?
When you remove AOJP, and move under the presumption that the suspect is armed, whether actually armed or not, and a threat, whether actually an actual threat or not, which is EXACTLY what this does, you tantamount create statutes that legalize "vigilantism."
First, this statute doesn't remove AOJP. It simply satisfies the elements. If someone has unlawfully and forcibly entered your home or business, the law will
presume that a fear of imminent peril of death or great bodily harm to himself or herself or another in such a circumstance is reasonable. For the shooter, this means you will not have to guess at the intruder's intent in forcibly and unlawfully entering your home or business. Is it merely a particularly aggressive approach to selling girl scout cookies or am I in serious trouble?
However, this presumption that the fear is reasonable is rebuttable. If it does turn out to be an unusually aggressive approach in selling Girl Scout cookies, the prosecutor can introduce evidence to show why the presumption is unreasonable in this case, for example:
You did recognize that the intruder was an 8yr old girl who was unarmed and wearing a Girl Scout uniform, correct? Didn't you tell the responding officer that she was screaming "You MUST BUY my cookies!"?
The express intent stated by Lawmakers, was they didn't ever want to see an issue like the Ersland case ever rise again. Not becasue they found disdain in it, but wanted to clear the path to allow it.
That may have been their stated intent; but if Ersland shot the attacker after he was down and no longer a threat, then the
presumption that he had a reasonable fear is rebuttable. Take that whole Ersland shooting scenario and transplant it to his home and you still have the same legal result. Ersland's problem isn't that he didn't have Castle Doctrine, it is that he appeared to be shooting someone who was no longer a threat.