Stand your ground dangerous, should be repealed in Ohio
Due to the complexity of the law, non-lawyers might misunderstand what Ohio self-defense law was before “stand your ground” became the law as the result of the passage of Senate Bill 175, and what self-defense law is now.
That was apparent from an April 5 Dispatch article on the enactment of the new law.
Before April 11, self-defense law did not require “a person to attempt to retreat in public before firing a weapon.”
Years ago the Ohio Supreme Court held that there was no obligation to retreat when an individual was in public and being assaulted – if his/her life was in imminent danger. Stand your ground is a “solution” that creates an imagined, nonexistent problem.
Stand your ground does change “the standard for using lethal force.”
Ohio common law had been that self-defense was available only if the defendant had a bona fide belief that she was in imminent danger of death or great bodily harm, and that her only means of escape was the use of force.
In contrast, stand your ground provides that deadly force or great bodily harm does not have to be threatened to use deadly force in response – any threat to a residence or safety can be sufficient.
Stand your ground eases the standard for permitted use of deadly force.
Under stand your ground, a defendant does not have “to be able to articulate why” he or she shot someone.
It is the prosecution – not the defendant – who has the burden of proving that the defendant did not shoot in self-defense. A defendant does not have to articulate anything to succeed on self-defense under stand your ground.
The new law also changes the ability of a jury to decide on justification for the shooting. In December 2020, then-state Senator John Eklund, a conservative Republican, correctly pointed out that stand your ground rejects the “tradition in which we trust … the fact-finder, often the jury, to evaluate the case….” and provides that “the jury shall not consider the possibility of retreat as a factor in determining whether or not a person who used force in self-defense reasonably believed that force was necessary to prevent injury … ”
Eklund concluded that this this interference with the jury’s function in determining imminent danger would be a “disaster to the administration of justice.”
Feeling threatened is a key to stand your ground. It removes the objective standard of whether there was a reasonable avenue of retreat.
The law plays to biases of the individual who feels threatened, and empowers those individuals to act as vigilantes.
The American Bar Association’s Task Force on Stand Your Ground Laws recognized the polarizing effect of SYG and found, “The application of Stand Your Ground laws … results in racial disparities.”
In passing stand your ground, the General Assembly rejected the opposition of the Ohio Association of Chiefs of Police, Ohio Prosecuting Attorneys Association, Columbus NAACP and National Task Force on Stand Your Ground Laws of the American Bar Association.
The only support for stand your ground came from the gun lobby and its mistaken views about self-defense law.
The General Assembly should listen to police and prosecutors.
It should repeal stand your ground and pass House Bill 38, which would limit the locations at which a person has no duty to retreat.
Bexley resident Douglas Rogers is a graduate of Yale Law School and a former military police captain. He was a partner in the law firm of Vorys, Sater, Seymour and Pease for more than 20 years. Rogers was a Moritz College of Law adjunct professor at Ohio State University from 2011 to 2016.