There’s a piece of gallows humor you might hear if you bum around courthouse steps or firing ranges long enough. “If you shoot somebody on your porch,” the rusty adage runs, “you’d better drag him inside the house.”
And there’s some truth rattling around those words. They’re a reference to the “castle doctrine,” a scrap of jurisprudence that came over on the boat from England and probably dates back to a time when men wanted nothing more than to throw back a few meads by the fire after a long day of evading the plague, without having to worry about the bloodthirsty Viking two doors down.
Updated for the modern homemaker, the castle doctrine means your residence is granted special legal standing — particularly when you have to fling bullets into an intruder. But it doesn’t exactly mean a mortgage gives you a license to kill.
The castle doctrine exists in one form or another across the country. In some states, it’s the assumed practice: more than half have carved it in stone with actual legislation, and Ohio has been in that group since 2008. But the statute is particularly noteworthy in Buckeye country because it’s the spot in the code where shooters have the most latitude in terms of self-defense.
And thanks to recent events, the whole country is talking about self-defense.
In February, Florida teen Trayvon Martin was gunned down by a block-watch commando named George Zimmerman under suspicious circumstances. The gunman later claimed he thought he was jacking an armed and suspiciously hooded assailant; it turned out he shot down a kid in a hoodie packing nothing more than a bag of Skittles. Regardless, the shooting was initially squared thanks to the loose nature of Florida’s self-defense laws. Cue the general outrage.
Nationwide, the heat from the Martin shooting has melted most debate down to puddles of bile, serving as a chance for old foes to bitch at each other about whether guns or people kill people. In Ohio, hard-liners on both sides of the Second Amendment actually agree: The current laws create too much gray area, and the day’s not far off when we’ll have to give the thumbs up or down on looser restrictions.
For now, here’s what you’ll need to know should a hooded assailant approach you with a deadly bag of candy.
KNOW WHEN TO RUN
Outside of your home, the basic checklist for using deadly force in the name of self-defense is pretty much the same from Solon to San Diego.
If you pull the trigger on someone, you’re justified to do so if there’s a reasonable belief that there was imminent danger of harm — i.e., shit was about to get real. But you don’t get to play the self-defense card if you were the instigator of a dust-up that ends in bloodshed. Some states also require “necessity,” meaning that nonviolent options weren’t possible or were tried without success. But for violent episodes spanning a few seconds, this requirement usually gets little attention in the courtroom.
“If you are being threatened by someone with a gun, you don’t have to try to go into mediation,” explains Jonathan P. Witmer-Rich, a professor of law at Cleveland State University.
The final justification to drop a prospective assailant is probably the key one: whether or not you had the opportunity to haul your ass out of the area before shooting became the only option. Yes, traditionally, the law has favored flight over fight. The exception is when you’re faced with a gun.
But through the common law — that slowly accumulating legal common sense that serves as the courtroom standard — most states acknowledge that, while seemingly a great idea, it’s not your job to retreat inside your own home when confronted by danger. Nonetheless, in 2008, the ink dried on new legislation in Ohio that specifically said that.
The timing wasn’t random. During the mid-2000s, the National Rifle Association started flexing its muscles in legislatures across the country, pushing for laws that would increase the rights of gun owners. The changes in the Ohio statute were twofold. The new law got rid of the duty to retreat from your house or vehicle when confronted. The second part performed some legal judo. Traditionally, the burden of proof in self-defense rested on whoever pulled the trigger — meaning a shooter had to convince a jury or authorities that the killing was justified. The new law introduced the presumption that if it’s Colonel Mustard in his library with the revolver, it’s automatically assumed to be self-defense.
The catch is that the prosecution can prove otherwise. Say you blow away a mohawked and tattooed intruder coming through the living-room window at night. According to the law, if you don’t say another word after police arrive, they’ll assume you drew while gripped in mortal fear. But if your distraught daughter comes downstairs, says the deceased was her harmless, unarmed boyfriend Zeke who gets drunk and crawls through the window every Saturday like clockwork — oh, and Dad never liked the guy to begin with because of the mohawk and tattoos — the cuffs are probably coming out.
That’s what separates Ohio’s statute from higher-proof castle doctrines elsewhere. If Zeke was going cold on a floor in Florida, you’d be OK, with or without your daughter’s intervention. In the Sunshine state, all self-defense inside the home is justified.
“It doesn’t matter if the intruder isn’t using deadly force, it doesn’t matter if the intruder isn’t posing any danger to you — you can just shoot them to get them out of your house,” Witmer-Rich says. “I think Ohio is pretty middle-of-the-road on this issue.”
BEWARE OF RAGING CRACKHEADS
In legal realtalk, shootings inside the home rarely hit a courtroom, which is why Ohio operated so long without a specific doctrine on the books.
“You’ve got some guy coming into your house in the middle of the night when you’re sleeping,” says Christopher Thomarios, a Cleveland defense attorney. “You hear rustling, you open the door, and you shoot them. Who gets prosecuted there? How often do you get Joe Suburb prosecuted for shooting some guy who comes into his house with a knife? Not too much.”
Since the law was passed in ’08, only a handful of Ohio cases related to the castle doctrine have made headlines, although they have underscored the subtle differences between the old unstated provision and current law. Often, a little legal wiggle room thanks to new wording is all the difference.
Early this year, Butler County, just north of Cincinnati, saw such a case. A 75-year-old man reportedly suffering from Alzheimer’s and dementia crashed his car into a stranger’s house. The driver got out of the vehicle, stormed into the house, and headed for the basement, where he began Hulk-smashing the property. Inside, the homeowner, 84-year-old Charles Foster, confronted the whacked-out intruder, went back upstairs, and retrieved a gun. When he returned to the basement, he was attacked. In defense, Foster shot and killed the unexpected visitor.
A Butler County grand jury reviewed the case and OK’d the shooting.
“You and I might have said, ‘Hell, I’m going to let this guy crash around in my house if he wants to, I’m going to go next door, call the police, and have them come get this guy out of my house,'” says Butler County prosecutor Mike Gmoser, who has no qualms with the outcome.
“That might have been, under the old law, the sensible thing to do. But hindsight is 20/20. And he did go arm himself, and he didn’t have the duty to retreat.”
Cuyahoga County prosecutors felt differently about the shooting that took place in Carl Kozlosky’s house in 2009. A convicted felon on a crack binge broke into Kozlosky’s Cleveland home in order to get some money from his girlfriend, a renter at the property. When the intruder started wailing on the woman, Kozlosky intervened, pulling the trigger when he believed the guy was going for a gun — but a gun was never found.
The jury convicted the homeowner of murder, but on appeal, the decision was overturned by the higher court due to the existing castle doctrine. The state hoped to run the issue up the food chain, but the Ohio Supreme Court declined to sniff over the matter.
COMING SOON:
SHOOT ‘EM UP ANYWHERE
Today, post-Trayvon Martin, you can’t get a clear snapshot of self-defense without the notion of “stand your ground” crowding the frame.
The Florida version of that law is what may justify Zimmerman’s pull of the trigger, and depending on where your heels are dug in on the issue, the concept is either the logical end or an extreme perversion of the Second Amendment.
About a dozen states recognize stand your ground. The basic idea takes the same magic wand Ohio’s castle doctrine waves over your homestead and points it at the public realm; under the law, you aren’t bound by a duty to retreat in a self-defense situation if you’ve got a right to be there. That means if someone steps toward you anywhere from the pizza parlor to the parking lot, you can quick-draw, High Noon-style, without having to worry about whether you’ve properly scanned the exits for a getaway option.
For proponents, the stand-your-ground law is more realistic, considering most shootings happen in only a few adrenaline-greased heartbeats. To run or not to run isn’t an equation your head can compute in a life-threatening situation, the thinking maintains, and such a requirement only gives overzealous prosecutors a sword to swing at shooters who were merely trying to defend themselves.
“If you and your wife or your girlfriend were getting in your car and somebody came up with a knife, would it be prudent to turn around and run,” says Dan Clevenger, a firearms instructor with D&D Firearms Instructors. “It depends on the incident.”
Because current Ohio law wraps a self-defense shooter in shades of gray, Clevenger and others believe the clarity provided by stand your ground isn’t far off.
“Eventually that part of the law will come to Ohio,” he says. “I think it will eventually change, because Ohio’s conceal and carry laws have been changing for the better since 2004.”
On the other side of the aisle, gun-safety advocates are not buying it. Lori O’Neill, vice chair of the National Gun Victims Action Council, says starting with the castle doctrine, and potentially continuing with stand your ground, these new laws give gun owners the opportunity to shrug off the legal repercussions of gunplay.
“What stand your ground says is, if you feel threatened in any way, you can shoot, no questions asked, and the presumption legally is that you were correct in doing so,” she explains. “So it removes your legal responsibility to prove you are under deadly attack, and it’s a presumption of innocence of a gun owner by virtue of the fact that they are a gun owner.”
This spring, despite the heat over Trayvon Martin’s death, gun lobbyists were in Columbus meeting with legislators about sending a stand-your-ground bill through the system. Nothing has been stamped for a vote yet, but supporters say the time is coming.
Down in Florida, George Zimmerman is currently back in a jail cell after violating the terms of his bond. He’s set to go on trial for second-degree murder, although a flood of leaked details seems to alternately back up and throw into question the shooter’s hold on a stand-your-ground defense.
So as of today, how would the country’s most controversy-soaked self-defense matchup play in Ohio’s courts? What if Zimmerman and Martin had crossed paths in Cleveland Heights? Without a stand-your-ground provision, the basic tenets of self-defense would have clicked in: Did Zimmerman fear for his life? Was he not the aggressor? And yes, could he have run away?
As we all know, only one side is still breathing to answer those questions, and whether you believe him probably depends on how you feel about hoodies.
This article appears in Jun 6-12, 2012.
I was all ready to condemn this article since so many have been poorly researched and filled with half-truths, opinion and disinformation, but I must say that this is a fairly well-balanced and informed piece. Kudos to the author. I’m an NRA member and gun rights activist in Michigan. My group reformed concealed carry laws in my state and worked with activists in Ohio to reform theirs. “Castle Doctrine” was actually not a law, per se, as a concept that is indeed an old one (as in “a man’s home is his castle”). But some states actually codified a duty to retreat IN to their law, making a formal version necessary. Most sensible people feel that an armed intruder (or group of intruders) should not force a home owner or legal resident to flee their home.
“Stand Your Ground” was a response to the question, “But what if I’m not in my home? What if I’m in my car? Or at the store? I’ve known my grocer for 20 years… if a robber came in and stuck a gun in his face, do I have to slink out the back like a coward or can I use my training and weapon to intervene?” All good questions! Most Stand Your Ground legislation is clearly written; there must be a REAL, imminent threat, or the firm belief that such a threat existed, in order to justify a shooting. (This is the same standard police are held to; they are assumed to be justified, but their claim WILL be investigated.) In Florida, the fault lies with the police chief and prosecutor, who didn’t understand how the law was supposed to work. Yes, they send Zimmerman home, presuming him innocent. But no, they don’t skip the investigation that will either prove or disprove his claim! And since they did so, who knows what evidence has disappeared, not to mention witnesses and memories?
Lastly, my own opinion on Zimmerman is that the law says “stand your ground,” not “chase ’em down.” It’s a FACT that if he’d have followed the advice of the 911 operator and not pursued Martin, the boy would still be alive today. That Zimmerman claims Martin attacked HIM is moot; if you poke a bear with a stick, you don’t blame the bear for mauling you. If someone I didn’t know approached me with a gun, I might have acted to defend myself as well. The partisans have worked hard to demonize Martin. I find it despicable. The FACT is that he wasn’t committing a crime at the time. He was shot for no good reason and Zimmerman is solely responsible. In my opinion.
Me, I look at everything both ways…and two things the reader should note:
1) Don’t ever, ever go into someone’s home – even on their invitation – if you suspect they have access to a firearm and/or don’t like you personally and/or are paid to not like you and/or can be…”emotional”.
And secondly laws such as Florida’s mean that you HAVE to turn your back on an armed assailant if you are unarmed when you’re outside your own home so that if he or she does pull the trigger you might at least get some justice postmortem.
I have been saying pretty much what Stu is saying, but on the yahoo news blog. If too many people abuse the carry laws and then others agree with the abuse and call it self defence when it is not really self defence at all, those who are sensible and responsible with their carry rights will be seen as negative and the enemy. We need to get this clarified and soon or we will end up loosing many of our rights to defend ourselves legitimetly. On yahoo a full 3 out of 4 are completely behind the Z’ and his right to kill the kid because he was wearing a hooded sweatshirt and because they had had robberies in the neighborhood. If this becomes reason to chase someone down and stalk them and then get charged and brought to the ground and therefore feel that to kill the person is the right thing to do and is in self defense and the best interests of our society, then we are in serious trouble indeed.
KEJ 060712–1450pm
The Daniel Adkins case in Phoenix hasn’t gotten nearly the attention of the Martin case. A man claimed self defense in the deadly shooting of Adkins, who was unarmed. The gunman was in his vehicle in a drive-through. Adkins was outside the vehicle and didn’t touch either the man or his vehicle/property. After the two exchanged words, Adkins waved his arms or became agitated (Adkins was mentally handicapped), and the shooter thought he had a pipe or bat, so he shot him from inside his car. No weapon was found, although Adkins was hanging onto his dog’s leash.
Even though the shooter admitted that he did not fear for his life, no arrest has been made in the case. The shooting took place on April 3, 2012.
Once again common sense and standards of law go by the wayside with pro and anti gun lobby dollars being waved under the noses of our legislators. They purposely create these gray areas so they all can collect time and time again.
This article is trying too hard to be hip with its use of slang. I’d have preferred if the writer had done a better job getting the facts and the law right.
For example: “[Zimmerman] later claimed he thought he was jacking an armed and suspiciously hooded assailant….”
That’s not what he claimed. He claimed Martin attacked him and was trying to kill him.
And: “Outside of your home, the basic checklist for using deadly force in the name of self-defense is pretty much the same from Solon to San Diego. If you pull the trigger on someone, you’re justified to do so if there’s a reasonable belief that there was imminent danger of harm — i.e., shit was about to get real. But you don’t get to play the self-defense card if you were the instigator of a dust-up that ends in bloodshed.”
That’s not accurate. If we look at the Zimmerman incident, if Zimmerman was the instigator by chasing after Martin, making Martin feel harassed, and provoking Martin, Zimmerman may indeed have been doing something wrong. However, he would still retain his right to self-defense if Martin then attacked him, got on top of him, and started smashing his head into the concrete, as Zimmerman claims and much of the evidence corroborates.
At that point Zimmerman would be fearing for his life and could justifiably use deadly force. So, it is entirely possible Zimmerman was the provocateur and was initially victimizing Martin but he would still be able to claim self-defense if the tables had turned and he became the victim of a violent attack where he felt his life was at risk.
You don’t lose your right to self-defense when someone is trying to kill you just because you had behaved improperly towards that person and provoked him. You’re not required to lay there and allow a person to smash your skull until you suffer serious brain injury or death.
You use the term “dust-up”, which can be either a verbal argument or a physical right. You should be more clear in your language. The prosecution has already conceded they have no evidence that Zimmerman was the one who started the physical fight. This was disclosed in court when Zimmerman’s attorney questioned the lead investigator.
Also: “The Florida version of that law is what may justify Zimmerman’s pull of the trigger….”
Zimmerman would lose his right to invoke the stand your ground statute if he “instigated the dust-up” (e.g. provoked Martin). However, he still retains his right to traditional self- defense if he was reasonable in his belief that his life was in danger and his only recourse was the use of deadly force.
Stu: “That Zimmerman claims Martin attacked HIM is moot; if you poke a bear with a stick, you don’t blame the bear for mauling you.”
You can have any opinion you want, but the fact remains that, under the law, you retain the right to self-defense even if you were the initial provocateur. Even if everything Zimmerman had done before the physical struggle ensued was wrong, the law does not require a person to lay there and allow his skull to be smashed into the pavement. How strange that you would think otherwise.
“It’s a FACT that if he’d have followed the advice of the 911 operator and not pursued Martin, the boy would still be alive today.”
That’s not an established fact. If you listen to the 911 call you hear Zimmerman say Martin is running, you hear Zimmerman get out of his car, and you hear the person on the other end asking if he’s following. Zimmerman says yes and he’s told “Okay, we don’t need you to do that.” Zimmerman replies, “Okay.” At that point Zimmerman stops pursuing Martin, at least temporarily. What happened from there has not been established.