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High Court Asked To Take Up Self Defense Case

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  • High Court Asked To Take Up Self Defense Case

    A man convicted of murdering his father is asking the Ohio Supreme Court to take up a case he says will revive the debate over controversial "stand-your-ground" language in the state.

    Joseph Shine-Johnson, in a memorandum in support of jurisdiction, argues that under current law a defendant claiming self-defense need not retreat to avoid speculative danger.

    Instead, he argues, there must be an imminent danger of death or great bodily harm before a defendant has any duty to retreat or avoid danger.

    The Tenth District Court of Appeals, however, disagreed, a decision he claims "effectively eliminates the first aggressor rule — it no longer matters who started the fight, but only who engaged in the argument."

    The case stems from a September 2015 incident in which Mr. Shine-Johnson shot and killed his father after an argument in the home they shared.

    Mr. Shine-Johnson was summoned home by his father on the night the shooting occurred, and an argument ensued.

    Prosecutors successfully argued that Mr. Shine-Johnson violated a duty to avoid danger after he returned home in response to his father's angry text message. He was convicted of murder and tampering with evidence.

    Mr. Shine-Johnson argued at the appellate court level that prosecutors committed misconduct by misstating the law regarding the duty to avoid danger.

    "Contrary to appellant's argument, the prosecutor did not expressly connect the duty to avoid trouble with the not-at-fault element and was instead pursuing a line of questioning directly regarding the duty to avoid danger," Judge Lisa Sadler wrote in a decision joined by Judge Julia Dorrian. "Furthermore, appellant cites no authority to support his claim it is erroneous or prejudicial error for the prosecutor to impliedly connect the duty to avoid trouble with the not-at-fault element."

    Judge Gary Tyack dissented, saying he would have vacated the conviction and remanded the case for a new trial.

    "His complying with his father's demand had nothing to do with any duty to retreat or any duty to avoid injuries," he wrote. "The state of Ohio has simply no legal basis for arguing otherwise. A person who is summoned home by a parent has a right to go home, even if the person summoned fears that bad things could happen once the person arrives home."

    Judge Tyack also said Ohio law is "crystal clear" in that a person has no duty to retreat in their own home.

    Mr. Shine-Johnson contends that the court's decision could have major ramifications.

    "The next time an argument over money or politics or sports becomes physical, prosecutors will be able to cite this case to argue that the defendants lost their right to self-defense because they participated in the argument rather than walking away," he argues. "Ohioans will be forced to avoid any confrontation on the off chance that it may turn physical."

    He also claims the expansion of gun rights in Ohio makes the case even more important.

    "More Ohioans are carrying weapons on a regular basis. Arguments that may have ended in a minor scuffle are more likely to end in gunfire," he writes. "If this broad interpretation of the duty to avoid danger is allowed to persist, Ohioans will learn that their concealed carry permits are useless if they make the mistake of engaging in an argument, regardless of whether they were the first aggressor."

    He also says the case will "renew momentum" for legislation effectively ending the duty to retreat in Ohio.

    Legislation (HB228, 132nd General Assembly) deliberated last session would have done just that. However, that language was stripped from the bill in a last-minute move in committee. (See Gongwer Ohio Report, December 6, 2018)

    Nonetheless, the measure still contained language shifting the burden of proof in self-defense cases to the prosecution, leading to a veto from former Gov. John Kasich. Lawmakers, however, were able to override the veto. (See Gongwer Ohio Report, December 27, 2018)

    Speaker Larry Householder (R-Glenford) said last week that he expects the issue to come up again. (See Gongwer Ohio Report, February 1, 2019)

    Senate President Larry Obhof (R-Medina) made a similar prediction the day the veto was overridden.

    Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths. James Madison, Federalist Paper No 10