Law Ohio Legislature Overrides Gov. Kasich’s Veto of Gun Owners Rights Bill

[JamesRussler]

https://www.thetruthaboutguns.com/2...-stand-your-ground-protection-for-gun-owners/

As far as I know, Ohio was the only state in our Union where the burden of proof for self-defense was on the defendant, and not the prosecutor. This bill corrects that. It came just short of a full 'stand your ground' law.

It's also worth noting when a Governor's veto gets overridden. John Kasich is one of the names that often comes up when people bring up the notion of a Republican being a primary challenger to President Trump. Considering the fact that he's shown himself to be no friend to American gun owners, I don't see how this is even possible.

What say you WarRoom?

Is this a positive development for the people of Ohio? I believe it is. If you disagree, I'd love to hear your perspective.

"Self defense" is an affirmative legal defense. So far as I'm aware, the defendant always has the evidentiary burden of putting forth enough facts to invoke the defense, even though the overall burden of proof is on the prosecution to prove guilt beyond reasonable doubt. I've never heard of the prosecution bearing the burden of disproving a defense that didn't at least have some grounding in the facts of the case.

Here is a copy of House Bill 228, the one that Kucksich vetoed. The relevant language is below (blue text would be added to the statute, red text would be eliminated from the statute:

Sec. 2901.05. (A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense other than self- defense, defense of another, or defense of the accused's residence as described in division (B)(1) of this section, is upon the accused.

(B)(1) A person is allowed to act in self-defense, defense of another, or defense of that person's residence. If, at the trial of a person who is accused of an offense that involved the person's use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person's residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person's residence, as the case may be.

(2) Subject to division (B)(2)(3) 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.

(2)(a)(3) The presumption set forth in division (B)(1)(2) of this section does not apply if either of the following is true:

(a) The person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.

(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.

(3)(4) The presumption set forth in division (B)(1)(2) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence, provided that the prosecution's burden of proof remains proof beyond a reasonable doubt as described in divisions (A) and (B)(1) of this section.
​

This law appears to allow defendants to invoke self defense upon presenting any evidence that "tends to support" use of defensive force. That appears to be a "scintilla of evidence" standard, which is much lower than the preponderance of evidence standard OH uses for other affirmative defenses. As a practical matter, this means it will be easier for defendants to get self-defense jury instructions. Past that point, I don't think it makes a difference, because disproving a validly invoked affirmative defense "beyond reasonable doubt" is always the prosecution's burden anyway. For reference, here is a California self-defense jury instruction, which states that "The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful (self-defense/ [or] defense of another)." But in CA, unlike OH, defendants must present "substantial evidence" to even get a self-defense instruction.

It does appear that the law already included a "presumption" of self defense if the victim "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" of the defendant. But that entails an evidentiary burden as well, which I assume mirrors the general self-defense standard in section (B)(1). They'd probably have to resolve that issue before trial in a separate hearing.

All around good news for self-defense advocates, bad news for John Kucksich.

 

[VivaRevolution]

That's the silly part. The law isn't the law in his argument. It's this is how the law should be, with an advocacy that's exceptionally dangerous if you want to maintain a free society.

The worst part is that I think other people actually do think like this. That they think they are the hero because they don't want a murderer to get off.

That they actually believe they are morally in the right. That is dangerous, because that means we are the opposite of moral.

Like wise, I view violating the premise of innocent until proven guilty as border line evil.

Definitely makes for a stand off of strongly held beliefs.

 

[Greoric]

"Self defense" is an affirmative legal defense. So far as I'm aware, the defendant always has the evidentiary burden of putting forth enough facts to invoke the defense, even though the overall burden of proof is on the prosecution to prove guilt beyond reasonable doubt. I've never heard of the prosecution bearing the burden of disproving a defense that didn't at least have some grounding in the facts of the case.

Here is a copy of House Bill 228, the one that Kucksich vetoed. The relevant language is below (blue text would be added to the statute, red text would be eliminated from the statute:

Sec. 2901.05. (A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense other than self- defense, defense of another, or defense of the accused's residence as described in division (B)(1) of this section, is upon the accused.

(B)(1) A person is allowed to act in self-defense, defense of another, or defense of that person's residence. If, at the trial of a person who is accused of an offense that involved the person's use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person's residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person's residence, as the case may be.

(2) Subject to division (B)(2)(3) 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.

(2)(a)(3) The presumption set forth in division (B)(1)(2) of this section does not apply if either of the following is true:

(a) The person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.

(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.

(3)(4) The presumption set forth in division (B)(1)(2) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence, provided that the prosecution's burden of proof remains proof beyond a reasonable doubt as described in divisions (A) and (B)(1) of this section.
​

This law appears to allow defendants to invoke self defense upon presenting any evidence that "tends to support" use of defensive force. That appears to be a "scintilla of evidence" standard, which is much lower than the preponderance of evidence standard OH uses for other affirmative defenses. As a practical matter, this means it will be easier for defendants to get self-defense jury instructions. Past that point, I don't think it makes a difference, because disproving a validly invoked affirmative defense "beyond reasonable doubt" is always the prosecution's burden anyway. For reference, here is a California self-defense jury instruction, which states that "The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful (self-defense/ [or] defense of another)." But in CA, unlike OH, defendants must present "substantial evidence" to even get a self-defense instruction.

It does appear that the law already included a "presumption" of self defense if the victim "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" of the defendant. But that entails an evidentiary burden as well, which I assume mirrors the general self-defense standard in section (B)(1). They'd probably have to resolve that issue before trial in a separate hearing.

All around good news for self-defense advocates, bad news for John Kucksich.

Alright, after reading this, I can acknowledge I'm way outside my depth here. Can you weigh in on @Falsedawn and I's discussion on whom has the ultimate burden of proof of a crime in these instances, the state or the defendant?

 

[Rational Poster]

You're not understanding that the state is still under the obligation of proving there was a crime in the act.

You're not understanding by taking a position of self defense you are already admitting to a crime.

 

[Greoric]

You're not understanding by taking a position of self defense you are already admitting to a crime.

I respectfully thought @Falsedawn was wrong. You, however, are just a fucking idiot. Don't bother replying to me.

 

[Rational Poster]

I respectfully thought @Falsedawn was wrong. You, however, are just a fucking idiot. Don't bother replying to me.

The state already has the justification to charge you with a crime when you take a position of self defense.

 

[Falsedawn]

Where the fuck are we, in opposite land? Look, my guy. After you make the statement "I killed someone", and even presuming you go to court because of it who has the burden of proof beyond a reasonable doubt? Is it the accused defendant, or is it the prosecuting state?

Anecdotally, my neighbor made similar comments last week in a gun fight with some home boys and funny enough he never had the burden of proof in court or the presence in any court to prove it was a wrongful death.

Dude, all the state gives a shit about is that you killed someone. The criteria aren't some arcane instrument of justice, you can look them up for your state. Here are the ones for Texas.

Sec. 19.01. TYPES OF CRIMINAL HOMICIDE. (a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.

(b) Criminal homicide is murder, capital murder, manslaughter, or criminally negligent homicide.

That's literally all they care about. If you intentionally, knowingly, recklessly, or with criminal negligence cause the death of another, you committed criminal homicide. If you admit to killing someone, and they can substantiate your confession, you knowingly caused the death of an individual. Boom, case closed.

But say you knowingly and intentionally caused the death of an individual, you shot them in the face. That's what the state cares about. Did you knowingly and intentionally cause the death of an individual? The burden of proof is on the state to prove this and this alone. In the self defense argument, you are literally saying "I shot him in the face, but here are the circumstances under which it was legal". You can't be claiming self defense and also be claiming that you didn't cause the death of the individual, they're mutually exclusive. That's why the burden of proof is on you. And in many states it's a lower burden of proof than the state being able to convict you.

I mean, is this really hard for you to understand? You can't just say "I was justified" and then clam up and fuck off. You have to tell us why you were justified or you're just a murderer.

 

[Greoric]

Dude, all the state gives a shit about is that you killed someone. The criteria aren't some arcane instrument of justice, you can look them up for your state. Here are the ones for Texas.

That's literally all they care about. If you intentionally, knowingly, recklessly, or with criminal negligence cause the death of another, you committed criminal homicide. If you admit to killing someone, and they can substantiate your confession, you knowingly caused the death of an individual. Boom, case closed.

But say you knowingly and intentionally caused the death of an individual, you shot them in the face. That's what the state cares about. Did you knowingly and intentionally cause the death of an individual? The burden of proof is on the state to prove this and this alone. In the self defense argument, you are literally saying "I shot him in the face, but here are the circumstances under which it was legal". You can't be claiming self defense and also be claiming that you didn't cause the death of the individual, they're mutually exclusive. That's why the burden of proof is on you. And in many states it's a lower burden of proof than the state being able to convict you.

I mean, is this really hard for you to understand? You can't just say "I was justified" and then clam up and fuck off. You have to tell us why you were justified or you're just a murderer.

I'll tell you what. After reading @JamesRussler's post there's more nuance here than either of us were arguing. I'm going to yield back.

 

[Rational Poster]

How is this relevant? I am confused

In the OP's opinion he stated that Kaisch would make a poor candidate against Trump because of his hard stance on gun laws.

I was just pointing out that Trump himself has an expressed an even harsher stance and his supporters don't care.

Consistency isn't a trait Trump supporters can claim to have.

 

[Rational Poster]

I'll tell you what. After reading @JamesRussler's post there's more nuance here than either of us were arguing. I'm going to yield back.

You're an idiot. Don't bother replying to me.

 

[Greoric]

You're an idiot. Don't bother replying to me.

 

[JamesRussler]

I'll tell you what. After reading @JamesRussler's post there's more nuance here than either of us were arguing. I'm going to yield back.

Alright, after reading this, I can acknowledge I'm way outside my depth here. Can you weigh in on @Falsedawn and I's discussion on whom has the ultimate burden of proof of a crime in these instances, the state or the defendant?

Umm. Well, I was talking about the legislation John Kasich vetoed. I read through your convo with @Falsedawn and it appears you both agree on certain points (e.g., not all homicides are murders). You appear to disagree on who has the burden on proving / disproving self-defense, which can be confusing given that the standard varies somewhat from state to state. It appears there is some confusion about evidentiary burdens (AKA "burden going forward" or "burden of production") and burdens of proof. Unless there is a presumption, the Defendant always has to carry an evidentiary burden before raising an affirmative defense to a crime. For example, if A is on trial for murdering B, A isn't entitled to a self-defense jury instruction unless he presents some evidence that he killed B in self-defense. Under OH law, this is as simple as A testifying that "B attacked me first." But, under OH law, if A killed B while B was attempting to rob A's house, A is presumed to have acted in self-defense. The prosecution can rebut it by a preponderance of evidence (perhaps a video of the incident, which shows A chasing after B, capturing him, then killing him). But even then, the prosecution must still disprove A's self-defense argument beyond reasonable doubt. The prosecution always has the burden of proving guilt beyond reasonable doubt in a criminal case.

With all that said, I read a little bit more about this situation in OH. Apparently the affected provision of OH law that required defendants to prove their affirmative defense by a preponderance of the evidence was the only such provision in the country. I haven't independently verified that, but I noticed that California indeed requires prosecutors to disprove self-defense BRD (CA is notoriously liberal of course). If House Bill 228 merely brings OH in line with the other 49 states, I don't see what the controversy is all about.

And then there's this...

Spoiler: The Jury

The Jury doesn't read jury instructions. They don't care about the burden of proof, cautionary / limiting instructions, etc. They will convict you if they think you did it. They will acquit you if they think you acted in self-defense. Simple as that.

 

[Dolomite]

WHEN WILL THEY CLOSE THE MURDER LOOPHOLE???

 

[west42]

Theyre usually the same people advocating for govt run healthcare while literally hitler and the evil repubs are in charge. Did you expect much better?

The worst part is that I think other people actually do think like this. That they think they are the hero because they don't want a murderer to get off.

That they actually believe they are morally in the right. That is dangerous, because that means we are the opposite of moral.

Like wise, I view violating the premise of innocent until proven guilty as border line evil.

Definitely makes for a stand off of strongly held beliefs.

 

[tinker_190]

In the OP's opinion he stated that Kaisch would make a poor candidate against Trump because of his hard stance on gun laws.

I was just pointing out that Trump himself has an expressed an even harsher stance and his supporters don't care.

Consistency isn't a trait Trump supporters can claim to have.

Ahh OK. I was trying to contextualize that around the policy discussion itself, instead of the comparison for Trump and future GOP Prez candidacy.

I sort of agree/disagree on the consistency claim though. I feel like the only people who are cognizant of this particular quote and issue are either Trump critics (who use this to point out the double standard) and the very libertarian/pro gun crowd (these are not the same but I'm grouping them together here). Usually I don't agree with you Rational Poster about much but in this case eliminating due process is absolutely frightening. I am pro-gun to the max because I think it's a massive deterrent to extreme authoritarian overreach over the population + Man needs sanctity as an individual to defend himself.

 

[Rational Poster]

Ahh OK. I was trying to contextualize that around the policy discussion itself, instead of the comparison for Trump and future GOP Prez candidacy.

I sort of agree/disagree on the consistency claim though. I feel like the only people who are cognizant of this particular quote and issue are either Trump critics (who use this to point out the double standard) and the very libertarian/pro gun crowd (these are not the same but I'm grouping them together here). Usually I don't agree with you Rational Poster about much but in this case eliminating due process is absolutely frightening. I am pro-gun to the max because I think it's a massive deterrent to extreme authoritarian overreach over the population + Man needs sanctity as an individual to defend himself.

I don't think guns should be taken away without due process, but I do think it's in society's interests to actually develop a process for doing so for certain individuals beyond the basis of criminality.

 

[tinker_190]

I don't think guns should be taken away without due process, but I do think it's in society's interests to actually develop a process for doing so for certain individuals beyond the basis of criminality.

While I understand your sentiment, I don't agree. I think it's more dangerous to society to reject the concept of 'innocence until proven guilty' and equal rights for all. Much more dangerous.

 

[cincymma79]

Self-defense is an affirmative defense. So, no, the burden of proof is traditionally not on the government.



The idea that you can admit to killing someone and have the presumption that it was legal is frankly appalling. That would mean that, so long as someone is in your house and the government cannot prove beyond a reasonable doubt (amounting to about 95% certainty) that you did not fear for your life, the killing is lawful. That's insane.

You break in my house and I’m killing you. You’d better hope I have a gun ornits going to take me longer. You’re expecting me to determine they aren’t dangerous to me beyond a reasonable doubt. All I know at that point is people break into homes and kill people all the time. So unless you can tell me what a bad guy looks like I’m not rolling those dice.

Now the assholes picking fights in public and then killing someone is a different story

 

[Trotsky]

You break in my house and I’m killing you. You’d better hope I have a gun ornits going to take me longer. You’re expecting me to determine they aren’t dangerous to me beyond a reasonable doubt. All I know at that point is people break into homes and kill people all the time. So unless you can tell me what a bad guy looks like I’m not rolling those dice.

Now the assholes picking fights in public and then killing someone is a different story

No, that's not what is being expected. At all.

 

[cincymma79]

No, that's not what is being expected. At all.

You specially brought up a home intruder. I have the example where I agree with you. Same post