Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


A man's home...

If you needed to know a single fact to give you insight into the American character, it is that John Wayne was still the most popular actor in this country twenty years after his death.

This land is my land, this land your land, but it's certainly not a land for the squeamish, and that's reflected not only in our movies (guess who's in the No. 2 spot?  Clint Eastwood), but also in our laws on self-defense.  The English common law generally imposed a duty to retreat before resorting to deadly force in self-defense.  Most American courts broke with that in the late 19th century, holding that as long as the defendant had a right to be in the place he was, he could meet "force with force."  As one commentator has noted, this change was a reflection of the country's character:

According to one theory, the transformation represented judges' recognition of "the American mind" as unsuited to the English tradition of retreating from violence.  Others have emphasized notions of honor that pertained in the distinctive frontier of the American South and West. One writer suggests that the spread of firearms may have contributed to judicial reasoning for abandoning the duty to retreat.

Lest there be any lingering confusion among the pansies out there, this was denominated as the "true man" doctrine.  (Although Ohio seemingly adopted the doctrine the same year that Custer was massacred at the Little Big Horn, by 1986 this would be modified to eliminate the duty to retreat only in the home or in one's business.  I guess that means we're gay or something.)

A similar transformation has taken place in the last few years, as numerous states have adopted the "castle doctrine," a legislative initiative being pushed by -- who else? -- the National Rifle Association.  Ohio jumped on that bandwagon last September with the adoption of RC 2901.05(B).

Actually, there was a castle doctrine back in common-law England, which simply held there was no duty to retreat so long as a man was in his home.  The modern version, though, works much differently.  Self-defense is an "affirmative" defense:  the defendant bears the burden of production and of persuasion, by a preponderance of the evidence.  What the new statute does is create a presumption in favor of the defendant:  if you shoot someone in your house (or car), it's presumed that you acted in self-defense, and the state has to overcome that presumption.

There are some fine points to it.  If you look outside and see someone stealing your car, you can't empty a clip into him; you have to occupy the house or vehicle in order to use deadly force.  You don't get the benefit of the presumption if you stab hubby to keep him from beating you, since he also has a right to be in the residence; the result is otherwise if you've gotten a restraining order against him.  And the presumption can be overcome if the state can show that you weren't in fear of death or great bodily harm at the time you dispatched the other guy. 

This last point probably isn't of much concern; it's unlikely that a jury is going to require a homeowner, confronted by a late-night intruder, to make careful calibrations as to the exact extent of the danger.  This raises the question of whether this is worth all the fuss; it's not as though the nightly news regularly bombards us with scenes of homeowners being perp-walked out of their houses for shooting a burglar. 

There are exceptions, of course, like this 4th District case which determined that the defendant "used deadly force in order to expel a belligerent and annoying intruder rather than to protect himself from death or great bodily injury," a conclusion buttressed by defendant's statement to the police, "nobody comes in my house running their mouth so I shot him."  

The Duke would've been content to punch the guy out instead.


Recent Entries

  • March 28, 2017
    What's Up in the 8th
    Pro se motions, pro se defendants, and advice for deadbeat dads
  • March 27, 2017
    Case Update
    Gorsuch's embarrassing day, upcoming oral arguments in SCOTUS
  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.