Eghad, normally yes, but under Oklahoma law, the law presumes someone who enters forcibly into your home is already a threat which you need no more justification to use deadly force. Now it has been extended to public areas as well, and that's not so good, for numerous reasons.
Examining Oklahoma's Revised SDA
- Thread starter DeltaB
- Start date
Eghad, normally yes, but under Oklahoma law, the law presumes someone who enters forcibly into your home is already a threat which you need no more justification to use deadly force. Now it has been extended to public areas as well, and that's not so good, for numerous reasons.
Actually, I happen to agree with Bart.
The extension is not to all public places. It merely includes a place of business (if you are the owner, manager or an employee) to the already lawful place, called a home.
The fact that the legislature recognizes this as "a right to expect absolute safety" is neither here nor there. States can and do recognize "rights" that are not found (or even based) in Federal Law. What actually matters is what the Statute does.
While I can see some challenges, based on the ambiguous text regarding employees (can an employee be armed against the wishes of the owner; etc.), it does not do what you claim it does.
The extension is not to all public places. It merely includes a place of business (if you are the owner, manager or an employee) to the already lawful place, called a home.
The fact that the legislature recognizes this as "a right to expect absolute safety" is neither here nor there. States can and do recognize "rights" that are not found (or even based) in Federal Law. What actually matters is what the Statute does.
While I can see some challenges, based on the ambiguous text regarding employees (can an employee be armed against the wishes of the owner; etc.), it does not do what you claim it does.
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.
Stating that you see nothing wrong with extending the "right to expect absolute safety" outside the home, and presumption rule, is proof enough to me, as I have said in the last few posts, lost all of you concerning "civil rights".
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)
I wish you the best, but like I said, need to move this to a legal board.
Stating that you see nothing wrong with extending the "right to expect absolute safety" outside the home, and presumption rule, is proof enough to me, as I have said in the last few posts, lost all of you concerning "civil rights".
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)
I wish you the best, but like I said, need to move this to a legal board.
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Language such as "a place of business" may be overly broad. Note I said, "may."
A Place of business. Singular. As opposed to a sidewalk vendor, who does not "a" singular place.
The language of the statute does not include all public places. I doubt if a court would see it as including such. A place of business can be denoted as a public accommodation, if they invite the public, but it is still private property.
I fail to see how this new statute compromises the "sanctity" of the home.
DeltaB, we have had one attorney comment on this thread, Bartholomew Roberts. There are several more that regularly post here. So let's wait and see if there are any other opinions as to the effect of this Law, and if it has any significance to our Civil Rights.
That is, after all, what this forum is about.
A Place of business. Singular. As opposed to a sidewalk vendor, who does not "a" singular place.
The language of the statute does not include all public places. I doubt if a court would see it as including such. A place of business can be denoted as a public accommodation, if they invite the public, but it is still private property.
I fail to see how this new statute compromises the "sanctity" of the home.
DeltaB, we have had one attorney comment on this thread, Bartholomew Roberts. There are several more that regularly post here. So let's wait and see if there are any other opinions as to the effect of this Law, and if it has any significance to our Civil Rights.
That is, after all, what this forum is about.
As Al mentioned, the change merely makes applicable the law to an owner or employee at a place of business. It doesn't apply unless someone "unlawfully or forcefully entered" or was in the process of doing so. It's very questionable this would cover the situation of a robber walking into a store during regular business hours. Some courts might say the robber had no license to enter to commit a robbery and the entry was unlawful. Others might hold differently.
But, even so, this just creates a presumption the person using defensive force was in reasonable fear of death or serious injury. Not all state laws are the same but, in my state, a person in court merely has to submit some evidence he or she acted in self-defense and the burden is on the state to prove otherwise beyond a reasonable doubt. This was the case even before Kentucky adopted the Castle Doctrine and No Duty to Retreat doctrine by statute. The typical Castle Doctrine statute merely removed the burden of the defendant to show even slight evidence he or she acted in self-defense. As a practical matter, it would rarely make a difference because a defendant would always want to put on some affirmative proof of self-defense.
We've managed to survive as a state with this law in place for along time. I don't think it's a big deal.
But, even so, this just creates a presumption the person using defensive force was in reasonable fear of death or serious injury. Not all state laws are the same but, in my state, a person in court merely has to submit some evidence he or she acted in self-defense and the burden is on the state to prove otherwise beyond a reasonable doubt. This was the case even before Kentucky adopted the Castle Doctrine and No Duty to Retreat doctrine by statute. The typical Castle Doctrine statute merely removed the burden of the defendant to show even slight evidence he or she acted in self-defense. As a practical matter, it would rarely make a difference because a defendant would always want to put on some affirmative proof of self-defense.
We've managed to survive as a state with this law in place for along time. I don't think it's a big deal.
Al, you misquote the statute, the statute reads "or places of business" plural. Legal definition of "business";
business n. any activity or enterprise entered into for profit. It does not mean it is a company, a corporation, partnership, or have any such formal organization, but it can range from a street peddler to General Motors.
If you are attempting to define or redifine what constitutes a business, I can assure you, every case that comes before the Court will attempt to also. However, when it comes to a home, the statute does a pretty good job of defining it.
While it doesn't redefine any rights concerning the "sanctity" of the home, it ties nearly every single public place area that "places of business" are found. (and that's everywhere)
In light of Ersland's trial, the lawmakers of Oklahoma have given "right to expect absolute safety" to just about anywhere, which would have, if the law was in effect 2 years ago, changed how the law looks at the rights of suspect. He would have been "presumed" a threat, and Ersland would not have to give any valid reason for executing him other than he entered unlawfully. 2 years ago, when I was active here, just about everyone who joined into the conversation and saw the video, knew it was a bad shoot. He was unarmed and incapacitated. I'm sure that this case will certainly end up in 10th Circuit Court, and the rulings of the High Court can forever change how deadly force is employed. 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.
business n. any activity or enterprise entered into for profit. It does not mean it is a company, a corporation, partnership, or have any such formal organization, but it can range from a street peddler to General Motors.
If you are attempting to define or redifine what constitutes a business, I can assure you, every case that comes before the Court will attempt to also. However, when it comes to a home, the statute does a pretty good job of defining it.
While it doesn't redefine any rights concerning the "sanctity" of the home, it ties nearly every single public place area that "places of business" are found. (and that's everywhere)
In light of Ersland's trial, the lawmakers of Oklahoma have given "right to expect absolute safety" to just about anywhere, which would have, if the law was in effect 2 years ago, changed how the law looks at the rights of suspect. He would have been "presumed" a threat, and Ersland would not have to give any valid reason for executing him other than he entered unlawfully. 2 years ago, when I was active here, just about everyone who joined into the conversation and saw the video, knew it was a bad shoot. He was unarmed and incapacitated. I'm sure that this case will certainly end up in 10th Circuit Court, and the rulings of the High Court can forever change how deadly force is employed. 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.
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secret_agent_man
Moderator
The right to self defense anywhere, anytime mortal danger is encountered is a tenant of uncodified natural law. This was well discussed in the dicta of Heller. However, a legal presumption that anyone you encounter outside your home, business or vehicle is a mortal threat is patently absurd as others have the same rights elsewhere as you.
Aguila Blanca
Staff
No, no, no. The 2nd Amendment does not "give us a license" to the right to bear arms. The RKBA is regarded under the Constitution as a preexisting natural right. The 2nd Amendment doesn't grant it, it recognizes it and guarantees (supposedly) that government will not infringe it.DeltaB said:
Secondly, even though centuries of common law have created the "castle doctrine," which gives us a right to defend our homes (our "castles") with force, not even those centuries of common law would allow a homeowner to do what Jerome Ersland did. Suppose someone invades your home, and you incapacitate him but leave him lying on the floor. Do you seriously believe that the Castle Doctrine would allow you to walk away from the immediate vicinity of the incident ... to OUTSIDE of the house, where you are completely removed from and safe from the (unconscious) guy on your living room floor ... then walk back inside, switch to a different gun, and calmly fire five rounds into the guy?
I respectfully submit that such an action is NOT within the application of deadly force allowed in home defense under any Castle Doctrine.
Aguila, concerning the official wriiten statement, the "hypostasis" which continues to allow us RKBA, IS the Consitution, and I don't want to get lost in the minutiae of symantecs. Citizens in countries that don't have that "license" wished they did. I guess anyone could pick apart any given statement.
Where you may be wrong, is that Oklahoma Lawmakers have openly said the law is being changed to allow just that. 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." 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.
Where you may be wrong, is that Oklahoma Lawmakers have openly said the law is being changed to allow just that. 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." 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.
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DeltaB said:
Actually, I'm not misreading a thing. While the plural is used, as you state, it is used only in section "A," which is the legislative finding of the actual statute.
In all other places, the phrase is used in the singular. Don't believe me. Look at the actual wording of the engrossed bill you provided by reference:
Note: The only markup I have added was to bold the markups by the legislature, in order to make it more obvious what was changed.
Therefore, in lieu of another statutory reference to what constitutes "business," it is given its salutary and ordinary meaning.
Bartholomew Roberts
Moderator
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 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.
It is a perfect place to discuss the issue. There is an impressive amount of legal knowledge in this forum.
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?
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.
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.
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?
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!"?
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.
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carguychris
New member
+1 Bartholomew; I think you covered all of my questions for the OP about the actual OK statute.
However, I'd like to ask the OP to elaborate about something else...
However, I'd like to ask the OP to elaborate about something else...
Care to elaborate? I'm curious. What about the CO statute was the same and what was different?
If you are an armed citizen it would be in your favor to know the use of Force Laws for your state. As said in the Ersland case the attackers used a firearm to attack him. He was justified in using deadly force to confront deadly force at that moment
Once his attacker had fled and the other was unconscious the threat had ended. Ersland chose to get a gun and shoot the guy five more times. I am not familiar with the use of force laws in Oklahoma but this would seem to not be justified. This would not even be a defense available to law enforcement personnel.
It is hard for me to understand that any law that strengthens the right of self defense in other places would weaken that same right in a home when we are attacked in an unlawful manner with force by other persons.
However a right is not a blanket excuse for misusing it. With rights comes responsibility.
Once his attacker had fled and the other was unconscious the threat had ended. Ersland chose to get a gun and shoot the guy five more times. I am not familiar with the use of force laws in Oklahoma but this would seem to not be justified. This would not even be a defense available to law enforcement personnel.
It is hard for me to understand that any law that strengthens the right of self defense in other places would weaken that same right in a home when we are attacked in an unlawful manner with force by other persons.
However a right is not a blanket excuse for misusing it. With rights comes responsibility.
Colorado story here....
http://www.coloradostatesman.com/kopel/991677-make-my-business-day-law-needs-more-work
http://www.bizjournals.com/denver/news/2011/02/09/businesses-wont-get-make-my-day.html
And Bart, thanks for your responses.
http://www.coloradostatesman.com/kopel/991677-make-my-business-day-law-needs-more-work
http://www.bizjournals.com/denver/news/2011/02/09/businesses-wont-get-make-my-day.html
And Bart, thanks for your responses.
Aguila Blanca
Staff
DeltaB, another way in which you are not fully interpreting or representing this bill is when you imply that THIS change will be the first to extend the expectation of complete safety outside of the home. Yet looking at the strikeouts in the language as quoted by Al Norris, it is clear that vehicles are already covered. My supposition is that this was a change made some years ago in response to the rise in carjackings.
One's vehicle is not one's home, and certainly not when the vehicle is not even in the same town or county. In fact, the way the law is written it doesn't even have to be your own vehicle -- it just says "occupied," which could include a taxi, a public service bus, a limousine, or a school bus. Yet the legislature determined that it was in the public interest to "expand" the protections of the castle doctrine to include vehicles -- of all types and kinds, apparently. So your position that further expansion to now include places of business is the first expansion outside of the home is incorrect.
One's vehicle is not one's home, and certainly not when the vehicle is not even in the same town or county. In fact, the way the law is written it doesn't even have to be your own vehicle -- it just says "occupied," which could include a taxi, a public service bus, a limousine, or a school bus. Yet the legislature determined that it was in the public interest to "expand" the protections of the castle doctrine to include vehicles -- of all types and kinds, apparently. So your position that further expansion to now include places of business is the first expansion outside of the home is incorrect.
I don't know about those arguments in the media piece
Here in Texas if you choose to use your concealed carry permit and the bullet goes astray and injures or kills another person you are still responsible for where that bullet goes.
I would assume the same to be true if I was in my home and the bullet missed penetrated the neighbors house and injured or killed a neighbor no matter what the castle law says because that neighbor was not in my home nor was he attacking me.
Also the argument for shooting a kid for a candy bar was pretty bogus in my opinion. No you can not shoot a kid for stealing a candy bar because he is not using deadly force against you. Its amazing some of the examples the anti gun forces will use when it comes to gun laws.
Now if that kid came into the store and pulled a real pistol on me while stealing that candy bar that changes the situation.
The purpose of these laws are to relieve the person that was found to have defended themselves justifiably and in accordance with the law the relief from having to defend themselves against charges and lawsuits that do not have merit because the person that got shot was engaged in illegal behavior and used what was considered deadly force or the DA is a anti gun guy and is going to press charges because of his opinions on citizens and guns even though the shooting was found to be justified.
I would have to read those laws to believe they give an armed citizen carte blanche to do anything he wants to. I am pretty sure to get the immunity from prosecution his actions have to be in compliance with the law.
Here in Texas if you choose to use your concealed carry permit and the bullet goes astray and injures or kills another person you are still responsible for where that bullet goes.
I would assume the same to be true if I was in my home and the bullet missed penetrated the neighbors house and injured or killed a neighbor no matter what the castle law says because that neighbor was not in my home nor was he attacking me.
Also the argument for shooting a kid for a candy bar was pretty bogus in my opinion. No you can not shoot a kid for stealing a candy bar because he is not using deadly force against you. Its amazing some of the examples the anti gun forces will use when it comes to gun laws.
Now if that kid came into the store and pulled a real pistol on me while stealing that candy bar that changes the situation.
The purpose of these laws are to relieve the person that was found to have defended themselves justifiably and in accordance with the law the relief from having to defend themselves against charges and lawsuits that do not have merit because the person that got shot was engaged in illegal behavior and used what was considered deadly force or the DA is a anti gun guy and is going to press charges because of his opinions on citizens and guns even though the shooting was found to be justified.
I would have to read those laws to believe they give an armed citizen carte blanche to do anything he wants to. I am pretty sure to get the immunity from prosecution his actions have to be in compliance with the law.
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