Stand Your Ground

| Jan 22, 2021 | Criminal Defense |

On January 4, 2021, Governor DeWine signed Senate Bill 175, effectively abolishing the defendant’s “duty to retreat” that had previously existed in Ohio in cases where deadly force had been used.  Prior to the passage of Senate Bill 175 the essential elements of self-defense that applied when deadly force was used in an area other than one’s home or automobile, or the automobile of an immediate family member, were: (1) the defendant was not at fault in creating the situation giving rise to the affray; (2) the defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) the defendant must not have violated any duty to retreat. See State v. Robbins, 58 Ohio St.2d 74, 79-80, 388 N.E.2d 755, 758 (1979).  As a result of Senate Bill 175 a court or a jury will no longer be able to find that a defendant was not legally allowed to use deadly force to defend himself or another person in cases where the defendant had an opportunity to retreat but failed to avail himself or herself of that opportunity. Senate Bill 175 becomes effective on April 6, 2021.

Courts have interpreted the duty to retreat to mean that a defendant on trial for having killed or injured someone, who was claiming self-defense, was required by law to establish that he or she attempted to escape before using deadly force. It often meant that the defendant on trial for shooting someone in self-defense had to prove that he or she could not have escaped from the situation without using deadly force.

The current version of Ohio Revised Code 2901.09 states:

(B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person who lawfully is in that person’s residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person’s residence, and a person who lawfully is an occupant of that person’s vehicle or who lawfully is an occupant in a vehicle owned by an immediate family member of the person has no duty to retreat before using force in self-defense or defense of another.

This language reflects Ohio’s “castle doctrine,” which became effective in 2008, and removed the duty to retreat in one’s home and automobile, or an immediate family member’s automobile. This was a significant change in the law, because it gave the benefit of the doubt to the defendant on trial in a use-of-deadly-force case. However, it was also limited because it did not apply to locations other than the defendant’s home and automobile, or an immediate family member’s automobile.

Removing the duty to retreat in all self-defense cases effectively invokes the concept of the castle doctrine and applies it to every location outside of one’s home or car where one had a legal right to be.

Here is how Ohio Revised Code 2901.09 will read as of April 6.

(B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person has no duty to retreat before using force in self-defense, defense of another, or defense of that person’s residence, if that person is in a place in which the person lawfully has a right to be.

(C) A trier of fact shall not consider the possibility of retreat as a factor in determining whether or not a person who used force in self-defense, defense of another, or defense of that person’s residence reasonably believed that the force was necessary to prevent injury, loss, or risk to life or safety.

In addition to this language dealing with criminal actions, Senate Bill 175 is also relevant in civil cases where the defendant is being sued for having used deadly force.

In a nutshell, if a person can legally be in a location, then that person has no duty to retreat before using deadly force to defend himself or herself, or another person. However, this does not change the standard for when the use of deadly force is legally justified.  When a defendant is on trial for having used deadly force, in order to preclude a court or jury from acquitting the defendant based on self-defense, the State must establish that either of the following applies: (1) the defendant was at fault in creating the situation that gave rise to the use of deadly force, or (2) the defendant (or another person) was not in imminent danger of death or great bodily harm at the moment when the deadly force was used.

Using deadly force in self-defense is only legally justifiable when a person has an honest and reasonable fear that he or she, or another person, is in immediate danger of either death, or great bodily harm. This fear must not only be reasonable from the defendant’s perspective, but it must also be considered reasonable by others in the community. The danger of death or great bodily harm must be imminent (immediate), meaning that the danger existed at the exact same time that the deadly force was used. The fact that Ohio law will no longer impose a duty to retreat does not in any way change any of the above.

In the same way that the castle doctrine gives the defendant on trial in a use-of-deadly-force case the benefit of the doubt when he or she claims self-defense in his or her home or automobile, the elimination of a duty to retreat gives the defendant the benefit of the doubt when he or she claims self-defense in any other location. The State must prove that the defendant is guilty of a crime, and a court or jury cannot find that a defendant had no right to self-defense even if the court or jury believes that retreat might have been possible.