A man's home may be his castle, but a used car dealership is not. Just as we might have expected.
At least, that's the ruling of the 2nd District in State v. El-Hardan, the latest case on RC 2901.05(B), Ohio's freshly minted -- well, if you consider 2008 fresh -- expansion of self-defense.
The case actually involved two of the least sympathetic occupations: used car dealers and building contractors. (For a good take on the latter, check out this New Yorker cartoon.) If there'd been a lawyer on scene, we might have had a trifecta. El-Hardan hired John Warner to do put up some siding on the building at the lot, and the work was done by Joe Taliaferro. After a week's work, Warner asked for payment, but El-Hardan refused, claiming the work was shoddy.
Taliaferro took umbrage to this, and became "hostile and argumentative," threatening to tear the siding off and to "kick [El-Hardan's] ass," either sequentially or with one being an alternative to the other. El-Hardan, apparently displeased with both choices, produced a rather impressive handgun and pointed it at Taliaferro, who wisely chose to leave the premises. El-Hardan was subsequently charged with aggravated menacing, and convicted after a bench trial.
El-Hardan appealed, relying upon the New, Improved Castle Doctrine passed back in 2008, which essentially shifts the burden of self-defense to the prosecution where the defendant expels an intruder from his home or car. The discerning reader will note that the altercation took place in neither, but El-Hardan relied on language from a 1951 Ohio Supreme Court cases stating that "a man's place of business * * * is pro hac vice his dwelling." Actually, the quote is from an Alabama Supreme Court case, which like the Ohio case concerned the liability of a business owner who set up a trap on his property to ward off criminals. (In the Ohio case, the owner had rigged up dynamite to explode when someone opened the door to his warehouse.) The Supreme Court resolved the issue by deciding that the owner did so at his peril: if the person injured was a felon intent upon theft or other crimes, it was all good, but the owner would have to pay out if he injured a mere trespasser. That didn't do El-Hardan any good: at worst, Taliaferro was a mere trespasser, by virtue of his having been told to leave the premises. There was no contention that he was committing any crime.
Also not helpful to El-Hardan was the court's strict construction of the statute: it specifically applies only to dwellings or vehicles, and defines dwelling as "a a building or conveyance of any kind that has a roof over it and that is designed to be occupied by people lodging in the building or conveyance at night." As the court noted, El-Hardan wasn't sleeping in his office. Even if he had been, the altercation here took place in the parking lot, not in the office. The opinion notes that other appellate courts have similarly "rejected attempts to extend the Castle Doctrine from ones residence or dwelling to the surrounding property." This past summer, in State v. Darby (discussed in the Case Update here), the 10th District refused to apply the doctrine to a case where the defendant shot the victim from her porch while the victim was standing on the sidewalk, and in State v. Miller (discussed in detail here), the 12th District had rejected its application where the defendant admitted he'd gotten out of his vehicle when the fight occurred. (Actually, he was prosecuted for beating up the victim after he'd entered the latter's car.)
It's impossible to quarrel with the result in El-Hardan; despite counsel's ingenuity, the plain wording of the statute pretty much forecloses the argument. What's notable is that this now makes about a dozen decisions on the Castle Doctrine since it was enacted, and defendants are still on an oh-fer streak: there hasn't been one conviction that's been overturned because the judge refused to apply the doctrine where he should, or because the jury instructions were improper.
This isn't surprising. In my first post about the law after it was passed, I'd questioned "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." An argument could be made that the entire law was based on the chimerical vision of juries convicting people for shooting intruders in their own home. Given the unlikelihood of prosecution, let alone conviction, in such a scenario, it's understandable that the major use for the Castle Doctrine would be an attempt to apply it to situations not remotely similar to those for which it was intended.
The Castle Doctrine, which has recently been enacted in numerous states, was a major project of the National Rifle Association. While it may not have produced the result intended, simply because the result had already been achieved without the new law, the NRA did gain a victory last week here in Cuyahoga County. In January I wrote about the case of Marinko Thomas, who by virtue of a misdemeanor marijuana conviction twenty years ago, was facing a weapons under disability charge and deportation, despite his having lived in the country for four decades. Through the determined efforts of his attorney, the judge dismissed the charges, finding that, in light of recent Supreme Court decisions, Thomas had a fundamental right to bear arms, and the prior misdemeanor conviction did not give the state a compelling interest in depriving him of that right.
The State appealed, but last week dismissed the appeal. The given reason was that HB 54, which takes effect at the end of this month, changes the law to provide that only a felony drug offense disqualifies one from possessing a weapon, and that this change would have precluded Thomas' prosecution. That's questionable; there's nothing in the statute, nor the case law, to suggest that the change would be applied retroactively to Thomas. Still, given the facts, it was a wise decision, and makes up for the questionable decision to charge Thomas in the first place, or to have a law which subjected someone to criminal prosecution for something like this.