In the first day of its lame duck session, the Ohio House of Representatives approved a measure that would make major changes to the state’s deadly force law, including the removal of the "duty to retreat" provision in deadly force situations that take place on streets, sidewalks and other publicly-accessible areas.
After vigorous debate on the House floor, representatives passed House Bill 228 largely along party lines. Proponents of the measure, which also includes other gun-related changes to state law, said the House bill is similar to laws in more than twenty other states.
Under current law, a concealed carry permit holder is required to do his or her best to leave or run away from a physical threat. Only after retreating can deadly force be administered, assuming no other options are available. The Fraternal Order of Police of Ohio and the Ohio Prosecuting Attorneys Association, in addition to some civil rights groups, oppose the measure.
The duty to retreat does not apply to deadly force encounters that take place in someone’s home or vehicle. In those situations, the traditional castle doctrine provisions apply.
Proponents say the current duty to retreat law is also problematic in that it shifts the burden of proof onto the defendant – instead of the state. Currently, a defendant asserting self-defense is required to prove three things by a preponderance of the evidence, which is the legal term for "more likely than not."
Defendants must prove that he or she was not at fault in creating the violation situation. The defendant must also reasonably believe that he or she was in imminent danger of death or serious bodily harm and that use of force was the only way to escape such danger. Lastly, the defendant has to prove that he or she followed the duty to retreat.
Tim Dimoff, a security expert that is nationally recognized, and his firm, SACS Consulting and Investigative Services, has spent two decades researching cases involving deadly force. He is also frequently called upon as an expert witness in local and federal court cases.
Dimoff said the duty to retreat provision in the law is especially problematic.
“That’s the real problem area. What is a proper retreat? Is it two steps? Is it 20 steps? Is it half a block?” Dimoff said. “When you have to prove retreat, you’re now putting the burden of the proof of justifiable use on the [defendant]. It becomes very hard to prove that and to what extent is retreating?”
Opponents of the proposed legislation, which the bill’s sponsor has been in the works for the better part of two years, said removing the duty to retreat provision de-incentivizes people to de-escalate violent encounters. Dimoff, however, said retreating can also put the concealed carry permit holder in a tactically more vulnerable situation.
“We think retreat is a weakness to the self-defense and can send the wrong message to the aggressor,” Dimoff said.
Dimoff also added that in his research, deadly force is rarely used.
“The majority of cases — and I would call that over 90 percent of cases — the person has removed and exposed their firearm and in those cases that was the end of the aggression,” Dimoff said.
Before the bill passed, the provisions earned a strong rebuke by several Cleveland-area lawmakers, who gave impassioned pleas on the House floor. Some have likened the proposed legislation to the similar laws enacted in Florida. Those so-called stand your ground laws became the focal point in the fatal shooting of Trayvon Martin in 2012.
The bill now moves to the Ohio Senate.