Continuing Adult Education

 It’s not often an attorney will take the time to give you free legal advice.  When they do, it is in your best interest to pay attention.  Mandy Gwirtz (http://gwirtzlaw.com/) gave a presentation in conjunction with U.S. LawShield about the changes in Ohio Gun regulations.

What do you do?

Let me start by saying that what is legal may not be tactically wise for you.  More on that later.  Also, this is an understanding from my notes.  Don’t confuse this with legal advice. 

One last proviso:  In our examples, you are snow-white innocent, you did nothing to provoke the situation or inflame the situation.

On Jun 13, 2022, Ohio will allow Constitutional Carry.  We currently have open carry and a license process for concealed carry.

Ohio law will allow citizens of other states, even those without a licensing process, to carry concealed in Ohio.  So why do we need a concealed carry license?

This is one of the tactical/legal considerations.  Going through the licensing process provides education about the law and helps develop skill with the handgun.  It also allows you to enjoy reciprocity with other states.  Ohio Constitutional Carry doesn’t cut any ice in our neighboring states.

There may be an advantage in either a civil or criminal case that the licensed person can bring in their trainer to expound on the training with the lawyer and perhaps act as an expert witness.  Who would the Constitutional Carry bring in to consult with their lawyer?  Some YouTube videos?

Perhaps the most compact, useful concept I could share with you is your use of deadly force will be viewed in the “totality of the circumstances.”  The jury will attempt to put themselves in your shoes, knowing what you knew at the moment, what you felt and why you felt it and decide if your actions were reasonable.  This is the reasonable man standard.

Ms. Gwirtz discussed the difference between non-deadly harm and deadly harm.  This topic evolves from the usual question/fantasy that I could trip and literally break my neck if a person tries to punch me.  Therefore I should be able to use deadly force to defend myself.  The trouble is that the intended outcome of a punch is not death, nor is it likely to be death.

Deadly Force, in Ohio, means any force that carries a substantial risk that it will proximately result in the death of any person (ORC 2901.01).  From this you can begin to see the how the totality of the circumstances comes into play.  A simple punch to the face doesn’t carry substantial risk, but if your assailant is wearing brass knuckles, the risk factor is increased.  An assailant attempting to use you as a punching bag, striking you repeatedly, increases the risk factor.

We can summarize this as the disparity of force.  It becomes an unfair fight if there are two of  assailants, or the person has a weapon, or is significantly larger.  From this idea, we can draw out the idea that weapons come in all different forms, an assault by a person driving an automobile, someone sicced their dog on you, a person with a screwdriver, a gun, a metal pipe.  Anything that can be used to multiply their force.

(As an aside, if a dog attacks you, deal with the dog.  Dogs are property and deadly force used against property is a contradiction.  The tactical side suggests you may then have to deal with the person who owned the dog, so make sure the dog was being used as a weapon and not just a nuisance.  Part Two: The alive dog arms the person, the dead dog disarms the person.  Are you justified in using deadly force after dispatching the dog?  No, not at that instant.)

Another point worth mentioning is that brandishing a weapon is not a legal charge in Ohio.  The correct charge would be Aggravated Menacing (making someone believe you will harm them by your words or actions).  If you anticipate needing to defend yourself, putting your hand on the holstered gun or opening your coat to make the gun more accessible is tactically sound.  Drawing the gun begins to move you closer to the definition.  Here too, it becomes the totality of the circumstances.  Holding the gun at your side while talking civilly is significantly different from pointing the gun at them and screaming you’re “gonna bust a cap on their ass and put them in the grave.”

Stand your ground has been talked about, knocked about and still tends to be misunderstood.  Did you not create or escalate the situation?  Are you legally able to be where you are?  In those cases the law provides that you do not have to attempt to back away.  Tactically?  It is always a good idea to attempt to deescalate.  If it can be done safely, backing up or moving away suggests you are trying to avoid a conflict, making the other person your attacker. 

The Castle Law provides some degree of protection in that it assumes that you acted in self-defense in your home or in your car.

What does that mean?  Let’s start with the easy.  It’s your car, you have a legal right to use it, to be in and are operating it.  You can’t be a passenger and expect protection.  Your house?  That’s also limited.  It can be a hotel room you’re sleeping in, a tent, motor home, or your house, assuming you have the legal right to be there.  But not your unattached garage, unless you are currently sleeping there.  Not your front lawn or backyard.  You don’t sleep there, do you?  Unattached deck, no.  Attached garage?  Maybe, you’re going to have to spin the wheel on that.  Better tactics to skip that one.

But it’s a rebuttable defense.  The guy in the wheelchair holding a hammer and yelling he’s going to beat you to death?  Be smart, retreat.  And your home?  The intruder can’t have a legal right to be there.  Your landlord, your sister-in-law whose name is on the loan agreement and has a key you gave them?  They may be intruders, but the castle doctrine doesn’t protect you.  Even the drunk you discover sleeping it off on your couch isn’t considered a threat that comes up to the level of self-defense.  At least while he snores away on your couch.

Interaction with the police is another area froth with danger.  Following a self-defense shooting we may want to deny we did it; we may want to convince ourselves we were not on the cusp of life and death.  We may desperately want to find permission from an official source for our actions on one of the worse days of our life.  “I didn’t think he was going to shoot,” we tell the cop.  “I couldn’t believe the gun was real,” we tell him.  “I wish I had done something else.”  All of which can wash away our claims of self-defense.

Ms. Gwirtz says don’t talk to the police.  It’s good advice.  But if you’ve been through higher training and demonstrated your ability to control what you say, it might be tactical to point out exculpable evidence to the police.  “That’s his gun/knife/hammer.”  He/she/they saw the incident.”  “I was in fear for my life.”  “They forced me to defend myself.”  And then ask for a lawyer and lock your lips shut.

Your gun gets stolen, and believe it or not, most people don’t report it.  Maybe they don’t want to get involved with the police.  Maybe they suspect a family member or friend.  Could it be a co-worker?  Could it be you’re simply embarrassed to have it happen to you?  You should have locked it in a safe, but you thought you could hide it on the shelf above the shower.  Maybe you bought it from a friend or some guy in a bar and aren’t sure of its bonafides.

Get over it.  Reporting it stolen to the police can simply your life if something criminal happens with the gun.

Is there more?  Sure.  Society is complex and regulated.  Rules are constantly changing and the volume of misinformation is becoming legendary.  To protect your Second Amendment rights, you need to educate yourself constantly.