Monday, March 13, 2017

The Vindicator: Hamad case offers inside look at rare and little used defense involving use of deadly force

Matthew T. Mangino
The Vindicator
March 12, 2017
When does a person have the right to use deadly force in self-defense in Ohio? That question promises to generate a lot of attention in Trumbull County.
On Feb. 25, Nasser Hamad allegedly shot five people in a vehicle outside of his home in Howland. Two of those wounded died and the other three were injured. Hamad recounted the incident to police, saying all five occupants of the vehicle – 20-year-old Joshua Williams, 19-year-old Josh Haber, 43-year-old April Trent-Vokes, 20-year-old Bryce Hendrickson and a 17-year-old juvenile – left the van and a fist fight ensued between Hamad and the juvenile. Once the fight ended, all five returned to the minivan, The Vindicator reported.
Hamad allegedly returned to his house where according to his statement to police he retrieved a 9mm handgun from his bedroom and left the house shooting into the vehicle. After unloading the magazine, Hamad told police he went back into his house and retrieved more ammunition.
A witness told police, Hamad came back outside appeared with the gun and began again to shoot into the vehicle.
Self-defense claim
Hamad’s attorney suggested that his client will make a claim of self-defense and filed a series of legal documents with the court last week.
The law in Ohio requires a defendant asserting self-defense to prove by a preponderance of the evidence that the defendant was not at fault, had a belief that he was in imminent danger of death or serious bodily harm and retreat was not required.
While one has a duty to retreat when threatened in public, Ohio has the Castle Doctrine which sets forth a separate set of guidelines when facing a threat in one’s home. You do not have to retreat if an intruder enters your home and threatens you or your family.
Ohio Senate Bill 184, codifying the Castle Doctrine, became effective in 2008. The Castle Doctrine provides that “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.”
What is included in the term “residence?”
Some would suggest that the curtilage – the area immediately surrounding the residence – would be considered part of the residence. The curtilage is commonly considered when evaluating Fourth Amendment search and seizure cases.
In 2013, the U.S. Supreme Court decided that a drug sniffing dog that came onto a porch and hit on drugs resulted in an illegal search because the dog was on the curtilage of the home without a warrant. On the other hand, at least one court has found that curtilage does not apply to the Castle Doctrine defense of a residence.
A defendant must reasonably believe that he is in danger of imminent death or serious bodily harm. Retreating into one’s home after an altercation outside of the home seems to lend little credence to a claim that lethal force was needed in self-defense.
According to Alexis M. Haddox writing in the Capital University Law Journal, “[T]he courts avoided applying the presumption [of justification through the Castle Doctrine] where it would have resulted in acquitting an at-fault defendant, or where it simply would have produced an unjust outcome.”
Justification defense
A defendant has the right to assert a justification defense – he was justified in using lethal force. However, justified use of lethal force is extremely rare. For instance, according to the New York Times, in 2010 “there were only 230 justifiable homicides involving a private citizen using a firearm reported to the F.B.I.’s Uniform Crime Report.”
A local courtroom may be the venue to get a first-hand look at a rare and little used defense and the machinations of defense lawyers and prosecutors as they wade through a morass of social media posts, statements and eye-witness accounts.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
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