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Defending Your Life–Part 2

Photo of Stephen E. Palmer

Everyone knows that we can use self defense in this country. We should be allowed, and we are allowed, to refute an attack with the appropriate force. Part One gave a real life scenario about self defense. Here let’s talk about the boring stuff–The nuts and bolts of the law.

There are scholars who believe that, like other fundamental constitutional rights, self defense transcends the written law. There’s a belief that certain things are so obvious, so fundamental, that humans can’t “grant” them, nor take them away. In fancy terms, these are called our fundamental rights. Think of the right to bear arms. Or freedom of speech. Or freedom of religion. These are the traditional fundamental rights from a pure constitutional law standpoint.

Where, then, does self defense fit in? The law actually calls it a privilege, not a right. Yet ask some of the smartest people in history about this distinction. They may have a different viewpoint.

Let’s look at what some of them have said:

“Among the natural rights of the colonists are these: first, a right to life, secondly to liberty, thirdly to property; together with the right to defend them in the best manner they can.”

– Samuel Adams, The Rights of the Colonists (1772)

“Self defense is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the laws of society.”

– Sir William Blackstone, 1765

“There exists a law, not written down anywhere, but inborn in our hearts; a law which comes to us not by training or custom or reading . . . a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right.”

– Marcus Tullius Cicero, 44 BC

But how does this jumbled philosophical stuff work in the real world? Well, Ohio law is pretty simple. Lawyers love lists and elements that they can check off. Self defense is a perfect example.

To prove self defense we must convince a jury (or judge) that:

1. The accused was not at fault in creating the situation giving rise to the affray (you didn’t start the fight).

2. The accused had a bona fide belief that he was in imminent danger of death or great bodily harm and the use of force was the only means to escape (you really thought you were going to get hurt badly and couldn’t just run away).

3. The accused did not violate any duty to retreat or avoid the danger (you have to run away if you aren’t in your house or car and/or running won’t work cause you’ll be followed and hurt).

State v. Robbins (1979), 58 Ohio St.2d 74; see also State v. Gillespie (2nd Dist., 2007), 172 Ohio App.3d 304.

For years this law was considered “common law.” It wasn’t really written in a book of statutes. It developed the old fashioned way—through years of legal opinions. But there are some recent trends that are now written in “black letter” law right in the code books.

The General Assembly in Ohio started writing stuff down in 2008. For instance, the law reads that there is no duty to retreat when attacked in your home. O.R.C. § 2901.09. And there is now a presumption of self defense when you protect your home from an intruder “in the process of unlawfully and without privilege” trying to enter. O.R.C. § 2901.05(B)(1).

The presumption sure helps, but we still have to prove it. More on that in Part 3.

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