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 www.mattmangino.com and
follow him on Twitter @MatthewTMangino.
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