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November 6, 2010

Class plans for defenses through November

The junior lawyers from the Oliwood firm of Douglas, Aaron, Ber, Man and Associates LLC have made arrangements with potential client Tom Dudley to meet at 1:45pm on Friday, November 12.  That means we will be focused on self-defense doctrines during Tuesday's class (and, as you all surely recall, we do not have class on Thursday, Nov. 11).

For our initial self-defense discussions, be sure to read (and re-read) La Voie and especially Leidholm very carefully.  In addition, to get a running start on Ohio's approach to self-defense, also read ASAP the Ohio Supreme Court's decision in State v. Thomas, which is available in pdf form at this link. (The official cite is State v. Thomas, 77 Ohio St.3d 323, 673 N.E.2d 1339 (1997).)

In addition, for a timely recent story about self-defense issues in Ohio, check out this new piece from today's Columbus Dispatch, which is headlined "Judge says killing wasn't self-defense: Man to appeal over 'castle doctrine'."

We likely will wrap up our self defense discussions on Tuesday, Nov. 16 and cover necessity and duress doctrines in our last two pre-Thanksgiving classes.  Be sure to read accordingly.

November 6, 2010 in Course materials and schedule, Notable real cases | Permalink


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The piece from The Columbus Dispatch brings up the interesting notion of the “Castle Doctrine”. The idea that one is able to take the life of an intruder even if that is not necessarily the force that is being brought by the intruder. Self-defense usually involves the idea of meeting force with force or taking the option to retreat. However, the Ohio castle doctrine seems to go over and beyond that.
The Ohio version of the “Castle Doctrine” comes from the Ohio Revised Code 2901.05, which says:
“(B)(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.” (http://codes.ohio.gov/orc/2901.05)

There’s an interesting history of the law in the bog “the briefcase” (http://briefcase8.com/2009/04/10/a-mans-home and http://briefcase8.com/2010/01/27/first-look-at-the-castle-doctrine/). (It was apparently amended to its current form in 2008)

In the Hogg case mentioned in The Columbus Dispatch, Judge Sheward stated that Hogg was not acting in self-defense when he stabbed Gatrell, an intruder in his home, in the throat and the Castle doctrine did not apply. Hogg’s attorney plans to appeal, and judging from the ORC mentioned above that seems to be a good idea. However unfair I may think it is section 2901.05 it creates a rebuttable presumption by stating, “a person is presumed to have acted in self-defense”. The court in Hogg seems concerned about the ramifications of the current Castle Doctrine in allowing homeowners to kill intruders with no fear of prosecution, which could potentially create anarchy from a utilitarian standpoint. It seems wrong to hold a person to a different standard merely because they are committing the crime in their own house against an intruder however that seems to be what the current legislation does.

Posted by: Christina Heithaus | Nov 7, 2010 11:24:41 AM


Rather gruesome details, and this is a little early but this article seems to include an interesting mixture of aspects of homicide and also discusses the "battered woman syndrome" that is in our reading for defenses. Between her first-degree murder conviction, possible extreme emotion disturbance and related mens rea issues, and defenses, I thought it was interesting to find a recent, real-life example that combined a few of our class concepts.

Posted by: Mallika Reddy | Nov 7, 2010 3:50:33 PM

This statute seems ridiculous to me. I don't think there is any way that a person should be presumed to have acted in self-defense just because someone forced their way into the defendant's house. There are other ways to deal with an intrusion other than just attacking. I believe this statute gives too much leeway to the homeowner. The act of someone coming into your house, even if it was unlawful entry, does not justify deadly force. There are legal remedies to protect against trespass and allowing the homeowner to use deadly force in this case seems to go against them.
My question about the Hogg case specifically would be about defense of others. There are a few facts that indicate that his girlfriend may have been threatened. Depending on the exact facts, I think this may have been a safer way for the lawyer to argue rather than depending on a recent doctrine which has not been tested yet.

Posted by: Amelia Bean-DeFlumer | Nov 8, 2010 9:17:11 PM

I tend to support the lax standards imposed by the law. It merely creates a rebuttable presumption that eases the burden of a defendant. In situations where people are forced to make decisions in extremely stressful and confusing circumstance, a person will not always act reasonably. I believe the law should, as it does here, attempt to primarily protect homeowner's and secondly intruders. It is difficult to ascertain the intent of an intruder, especially at night when visibility is limited. Therefore, I think it is probably a good social policy to allow a homeowner to protect his/her home without fear of using excessive force, unless it is completely unreasonable.

Posted by: Brandon Frank | Nov 8, 2010 10:33:07 PM

Though I tend to agree with Brandon's position on this doctrine, I will note one complication: one of the individuals with the most direct knowledge of what happened (the intruder) often winds up being unable to testify in court, leaving the jury with only the perspective of the killer/homeowner/lessee. In this case, I think there is almost a value judgment made on the life of the intruder. While I'm unable to synthesize my thoughts perfectly into a streamlined thought on this, I do pause at the thought that we as a society are willing to give homeowners a "free pass". I find it particularly distressing that it is very difficult to determine if a homeowner used excessive force when the intruder is deceased.

Posted by: Michael Shoenfelt | Nov 9, 2010 12:44:32 PM

Here is an interesting story in light of yesterday's discussion about self-defense, and what an appropriate amount of force is to use when responding to a threat:


Posted by: Paia LaPalombara | Nov 10, 2010 9:30:22 AM

There was a fascinating story about the Castle Doctrine in today's Columbus Dispatch. The article concerns efforts to reform the Castle Doctrine in light of its use by drug dealers' defense counsel to avoid murder charges.

I've always thought the scenario that gun enthusiasts warn about--what the paper describes as the "grandmother shooting an intruder in the middle of the night"--was far-fetched, but this seems to drive the point home, and I wonder how often charges were brought in "castle doctrine" fact patterns prior to the codification of the statute.


ORC Castle Doctrine (subsections (b)(1) and (b)(2):

Posted by: T.O. | Nov 14, 2010 9:43:47 AM

Thanks, T.O. I have a new post with snippets from the article. Also, be sure not to shoot Carson Palmer despite his lousy play for your team... ;-)

Posted by: Doug | Nov 14, 2010 9:47:05 PM

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