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Ohio HB541 Text (nutshell) Set criteria to allow deadly or nondeadly force in defense

Discussion in 'Legal' started by evan price, Apr 12, 2006.

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  1. evan price

    evan price Member

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    As Introduced

    126th General Assembly
    Regular Session
    2005-2006
    H. B. No. 541





    Representatives Buehrer, Taylor, Law, Blasdel, Hood, Seitz, Fessler, Brinkman, Harwood, Aslanides, Latta, Willamowski, Calvert, Evans, C., Combs, Schaffer, Evans, D., Faber, Cassell, Setzer, Collier, Peterson



    --------------------------------------------------------------------------------

    A BILL
    To enact sections 2305.61, 2305.62, 2305.63, 2306.64, 1
    2305.65, and 2305.66 and to repeal section 2305.40 2
    of the Revised Code to provide statutory criteria 3
    for when a person may use force or deadly force to 4
    defend the person or another person or to prevent 5
    or terminate a trespass on or illegal interference 6
    with property; to establish a presumption related 7
    to use of defensive force intended or likely to 8
    cause death or serious physical harm of when the 9
    user of the defensive force holds a reasonable 10
    fear of imminent peril of death or serious 11
    physical harm; to provide that a person authorized 12
    to use deadly force or defensive force intended or 13
    likely to cause death or serious physical harm 14
    generally does not have a duty to retreat; and to 15
    repeal the existing statutory provisions regarding 16
    the immunity of an owner, lessee, or renter of 17
    real property as to self-defense or defense of 18
    others. 19


    BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

    Section 1. That sections 2305.61, 2305.62, 2305.63, 2306.64, 20
    2305.65, and 2305.66 of the Revised Code be enacted to read as 21
    follows: 22

    Sec. 2305.61. As used in sections 2305.61 to 2305.66 of the 23
    Revised Code: 24

    (A) "Dwelling" means a building or conveyance of any kind 25
    that has a roof over it and that is designed to be occupied by 26
    people lodging in the building or conveyance at night. "Dwelling" 27
    includes any building or conveyance of a type described in this 28
    division, regardless of whether the building or conveyance is 29
    temporary or permanent, or mobile or immobile. "Dwelling" includes 30
    any attached porch or tent that has a roof over it and that is 31
    designed to be occupied by people lodging in it at night. 32

    (B) "Residence" means a dwelling in which a person resides 33
    either temporarily or permanently or is visiting as an invited 34
    guest. 35

    (C) "Third person" means, in a context in which force, deadly 36
    force, or defensive force is used, any person other than the 37
    person who uses the force, deadly force, or defensive force and 38
    other than the person against whom the force, deadly force, or 39
    defensive force is used. 40

    (D) "Vehicle" means a conveyance of any kind, whether or not 41
    motorized, that is designed to transport people or property. 42

    Sec. 2305.62. (A) A person is justified in using force, 43
    except deadly force, against another when and to the extent that 44
    the person using the force reasonably believes that the use of the 45
    force is necessary to defend the person's self or a third person 46
    against the imminent use of unlawful force by the person against 47
    whom the force is used. 48

    (B) A person who is justified in using force pursuant to 49
    division (A) of this section is justified in the use of deadly 50
    force against the other person and does not have a duty to retreat 51
    if either of the following applies: 52

    (1) The person using the deadly force reasonably believes 53
    that the use of the deadly force is necessary to prevent imminent 54
    death or serious physical harm to the person's self or a third 55
    person or to prevent the imminent commission of a forcible felony. 56

    (2) The circumstances described in division (A) or (B) of 57
    section 2305.63 of the Revised Code apply. 58

    (C) For the purposes of divisions (A) and (B) of this 59
    section, a person who unlawfully and by force enters or attempts 60
    to enter a person's dwelling, residence, or occupied vehicle is 61
    presumed to be doing so with the intent to commit an unlawful act 62
    involving force or violence. 63

    Sec. 2305.63. (A)(1) A person is justified in the use of 64
    defensive force against another that is intended or likely to 65
    cause death or serious physical harm to the other person and does 66
    not have a duty to retreat if the person using the defensive force 67
    holds a reasonable fear of imminent peril of death or serious 68
    physical bodily harm to the person's self or a third person. 69

    (2) For the purposes of division (A)(1) of this section, a 70
    person is presumed to have held a reasonable fear of imminent 71
    peril of death or serious physical harm to the person's self or a 72
    third person when using defensive force that is intended or likely 73
    to cause death or serious physical bodily harm to another if both 74
    of the following apply: 75

    (a) The person against whom the defensive force was used was 76
    in the process of unlawfully and forcefully entering, or had 77
    unlawfully and forcibly entered, a dwelling, residence, or 78
    occupied vehicle, or that person had removed or was attempting to 79
    remove another against the other person's will from a dwelling, 80
    residence, or occupied vehicle. 81

    (b) The person who uses the defensive force knew or had 82
    reason to believe that an unlawful and forcible entry or unlawful 83
    and forcible act of a type described in division (A)(2)(a) of this 84
    section was occurring or had occurred. 85

    (3) The presumption set forth in division (A)(2) of this 86
    section does not apply in any of the following circumstances: 87

    (a) The person against whom the defensive force is used has 88
    the right to be in, or is a lawful resident of, the dwelling, 89
    residence, or vehicle, and that person is not the subject of a 90
    protection order issued or consent agreement approved pursuant to 91
    section 2903.213, 2903.214, 2919.26, or 3113.31 of the Revised 92
    Code, a protection order issued by a court of another state, or a 93
    protection order issued pursuant to section 2945.04 of the Revised 94
    Code. For the purposes of this division, a person who has the 95
    right to be in, or is a lawful resident of, a dwelling, residence, 96
    or vehicle includes, but is not limited to, the owner, lessee, or 97
    titleholder of the dwelling, residence, or vehicle. As used in 98
    this division, "protection order issued by a court of another 99
    state" has the same meaning as in section 2919.27 of the Revised 100
    Code. 101

    (b) The person sought to be removed by the person against 102
    whom the defensive force was used as described in division 103
    (A)(2)(a) of this section is a child or grandchild, or is 104
    otherwise in the lawful custody or under the lawful guardianship 105
    of, the person against whom the defensive force is used. 106

    (c) The person who uses the defensive force is engaged in an 107
    unlawful activity or is using the dwelling, residence, or occupied 108
    vehicle to further an unlawful activity. 109

    (d) The person against whom the defensive force is used is a 110
    law enforcement officer who is entering or attempting to enter a 111
    dwelling, residence, or vehicle in the performance of the 112
    officer's official duties, and either the officer identified self 113
    as a law enforcement officer in accordance with any applicable 114
    law, or the person using the defensive force knew or reasonably 115
    should have known that the person entering or attempting to enter 116
    the dwelling, residence, or vehicle was a law enforcement officer. 117

    (B) A person who is not engaged in an unlawful activity and 118
    who is attacked in any place where the person has a right to be 119
    has no duty to retreat, has the right to stand the person's ground 120
    and meet force with force, including deadly force, and is 121
    justified in using the force, including deadly force, if the 122
    person reasonably believes it is necessary to do so to prevent 123
    death or great bodily harm to the person's self or a third person 124
    or to prevent the commission of a forcible felony. 125

    (C) For the purposes of divisions (A) and (B) of this 126
    section, a person who unlawfully and by force enters or attempts 127
    to enter a person's dwelling, residence, or occupied vehicle is 128
    presumed to be doing so with the intent to commit an unlawful act 129
    involving force or violence. 130

    Sec. 2305.64. (A) A person is justified in the use of force, 131
    except deadly force, against another when and to the extent that 132
    the person using the force reasonably believes that the use of the 133
    force is necessary to prevent or terminate the other person's 134
    trespass on, or other tortious or criminal interference with, 135
    either real property other than a dwelling or personal property 136
    that lawfully is in the person's possession, that lawfully is in 137
    the possession of a third person who is a member of the person's 138
    immediate family or household, or that is property of a third 139
    person whose property the person has a legal duty to protect. 140

    (B) A person who is justified in using force pursuant to 141
    division (A) of this section is justified in the use of deadly 142
    force against the other person only if the person using the deadly 143
    force reasonably believes that the use of the deadly force is 144
    necessary to prevent the imminent commission of a forcible felony. 145

    (C) For the purposes of divisions (A) and (B) of this 146
    section, a person does not have a duty to retreat if the person is 147
    in a place where the person has a right to be. 148

    (D) For the purposes of this section, a person who unlawfully 149
    and by force enters or attempts to enter a person's dwelling, 150
    residence, or occupied vehicle is presumed to be doing so with the 151
    intent to commit an unlawful act involving force or violence. 152

    Sec. 2305.65. (A) A person who uses force, deadly force, or 153
    defensive force as permitted in section 2305.62, 2305.63, or 154
    2305.64 of the Revised Code is justified in using the force, 155
    deadly force, or defensive force and is immune from criminal 156
    prosecution or liability and from liability for injury, death, or 157
    loss to person or property in any civil action that is based on or 158
    related to the use of the force, deadly force, or defensive force, 159
    unless the person against whom the force, deadly force, or 160
    defensive force was used is a law enforcement officer who was 161
    acting in the performance of the officer's official duties, and 162
    the officer identified self in accordance with any applicable law, 163
    or the person using the force, deadly force, or defensive force 164
    knew or reasonably should have known that the person was a law 165
    enforcement officer. As used in this division, "criminal 166
    prosecution" includes arresting, detaining in custody, and 167
    charging or prosecuting the defendant. 168

    (B) A law enforcement agency may use standard procedures for 169
    investigating a person for the use of force, deadly force, or 170
    defensive force as described in division (A) of this section, but 171
    the agency may not arrest the person for using the force, deadly 172
    force, or defensive force unless the agency determines that there 173
    is probable cause to believe that the force, deadly force, or 174
    defensive force that was used was unlawful. 175

    (C) If a person is sued in a civil action that is based on or 176
    related to the use of force, deadly force, or defensive force 177
    described in division (A) of this section and the court finds that 178
    the immunity provided in division (A) of this section applies to 179
    the person, the court shall award to the person reasonable 180
    attorney's fees, court costs, compensation for loss of income, and 181
    all expenses incurred by the person in defense of the civil 182
    action. 183

    Sec. 2305.66. The justifications for the use of force, deadly 184
    force, or defensive force described in sections 2305.62, 2305.63, 185
    2305.64, and 2305.65 of the Revised Code are not available to a 186
    person to whom either of the following applies: 187

    (A) The person is attempting to commit, committing, or 188
    escaping after the commission of a forcible felony. 189

    (B) The person initially provokes the use of force against 190
    the person's self, unless either of the following applies: 191

    (1) The force directed against the person as a result of the 192
    provocation is so great that the person reasonably believes that 193
    the person is in imminent danger of death or serious physical harm 194
    and that the person has exhausted every reasonable means to escape 195
    that imminent danger other than the use of force that is likely to 196
    cause death or serious physical harm to the assailant. 197

    (2) In good faith, the person withdraws from physical contact 198
    with the assailant and indicates clearly to the assailant that the 199
    person desires to withdraw and terminate the use of force, but the 200
    assailant continues or resumes the use of force. 201

    Section 2. That section 2305.40 of the Revised Code is 202
    hereby repealed. 203

    Section 3. The General Assembly declares that its intent in 204
    enacting sections 2305.61 to 2305.66 and repealing section 2305.40 205
    of the Revised Code in Sections 1 and 2 of this act is, in part, 206
    to supersede the doctrine of Ohio law developed and affirmed by 207
    the state's courts in numerous decisions, including State v. 208
    Cassano (2002), 96 Ohio St. 3d 94; State v. Thomas (1997), 77 Ohio 209
    St. 3d 323; State v. Williford (1990), 49 Ohio St. 3d 247; State 210
    v. Jackson (1986), 22 Ohio St. 3d 281; State v. Robbins (1979), 58 211
    Ohio St. 2d. 74; Graham v. State (1918), 98 Ohio St. 77; Marts v. 212
    State (1875), 26 Ohio St. 162; Columbus v. Dawson (Franklin 213
    County, 1986), 33 Ohio App. 3d 141; et al., that generally holds 214
    that a person who is outside of the person's place of residence or 215
    business and who is attacked has a duty to retreat before using 216
    deadly force in self-defense or in defense of another. 217
     
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