Ohio House committees hear TEN gun rights-related bills this week; Buckeye Firearms Assoc. offers testimony

by Chad D. Baus

A total of ten gun rights-related bills are being heard in committee this week - four of which are gun control bills.

On Tuesday, Buckeye Firearms Association leaders offered testimony on two bills - HB 203 (Concealed Carry & Self-Defense Law Reform) and HB 234 (Allow Noise Suppressors While Hunting).

A substitute bill was offered for HB 203 - click here to download.

The following written testimony was submitted by Buckeye Firearms Association in support of HB 203:

Testimony of Ken Hanson Esq.
Legislative Chair, Buckeye Firearms Association
Ohio General Assembly 130 House Bill 203

Good Morning,

I am here today to testify in favor of House Bill 203. Specifically, I am here to testify in favor of the portion of H.B. 203 that is referred to in the media as "Stand Your Ground." Anytime the media or an advocacy group uses the term "Stand Your Ground," they are referring to two (2) sentences in Revised Code Section 2901.09.

Under H.B. 203, Seventy-two (72) words would be deleted, and sixteen (16) words would be added, to Revised Code Section 2901.09. I have appended to the end of my testimony the exact change to Ohio self-defense law that would occur should H.B. 203 pass. I have, for four months, given this exemplar, together with all my sources and footnotes, to any doubters. No one has yet challenged the accuracy of this exemplar.

Opponents and media advocacy groups paint H.B. 203 as a license to kill. Fortunately for gun owners, every-single advancement in gun rights over the last decade has been opposed by those crying "wild west," "blood in the streets," "officer safety," "license to kill" and "shoot first." Gun advocates actually rejoice when opponents of a gun bill utter one of these platitudes. If gun opponents and the media talk about the "wild west," gun owners surely cannot lose. In Ohio alone, these opponents are on record as being completely wrong for over a decade.

I attach below a "before and after" version of Ohio's self-defense law. Please understand that I have put this "before and after" version out into the public for over 50 days. To date, no person has claimed that my "before and after" summary of self-defense law is inaccurate. Until someone demonstrates, with something other than an emotional media sound-bite (i.e. actual legal analysis), that moving a few words here or there within the Revised Code amounts to a hunting license, Ohio's gun owners have no idea what else to say.

Current Self-Defense law in Ohio

In Ohio, self-defense is an affirmative defense. This means the defendant, the person acting in self-defense, must prove, by a preponderance of the evidence, that they were acting in self-defense (i).

In order to use lethal/deadly force in self-defense, the defendant must prove the following steps:

1. The defendant was not at fault in creating the situation (ii). Various court decisions have explained that "at fault" means that the defendant cannot create, prolong, or escalate the situation. Stated another way, you cannot start a fight and then claim self-defense. You cannot prolong the situation by continuing the situation after the other person, who was initially at fault, attempted to stop or abandon the confrontation. You cannot escalate the force involved, i.e. in a verbal confrontation, escalate to physical force, and in a non-lethal/deadly situation, be the first to introduce lethal/deadly force.(iii)
2. The defendant must have reasonable grounds to believe (objective facts) and an honest belief (a subjective belief that the objective facts amounted to) of an imminent danger of serious bodily harm or death, and that the only way to escape this imminent danger was using lethal/deadly force. (iv) (emphasis added)
3. The defendant cannot violate any duty to physically retreat from the confrontation. There is a duty to physically retreat prior to using lethal/deadly force.(v) There is no duty to physically retreat from your residence, your place of business or a vehicle owned by you or an immediate family member. In all other places, unless another exception applies, there is a duty to physically retreat.

Ohio has established a presumption that a person is acting in self-defense if that person is lawfully in a residence or vehicle, another person trespassed, or attempted to trespass, into that residence or vehicle and the prosecution cannot prove facts to overcome this presumption. In this limited circumstance, the prosecution has the burden to prove the defendant was not acting in self-defense.(vi)
 
Self-Defense law in Ohio if H.B. 203 ("Stand Your Ground") Passes

In Ohio, self-defense is an affirmative defense. This means the defendant, the person acting in self-defense, must prove, by a preponderance of the evidence, that they were acting in self-defense.

In order to use lethal/deadly force in self-defense, the defendant must prove the following steps:

1. The defendant was not at fault in creating the situation.(vii) Various court decisions have explained that "at fault" means that the defendant cannot create, prolong, or escalate the situation. Stated another way, you cannot start a fight and then claim self-defense. You cannot prolong the situation by continuing the situation after the other person, who was initially at fault, attempted to stop or abandon the confrontation. You cannot escalate the force involved, i.e. in a verbal confrontation, escalate to physical force, and in a non-lethal/deadly situation, be the first to introduce lethal/deadly force(viii).
2. The defendant must have reasonable grounds to believe (objective facts) and an honest belief (a subjective belief that the objective facts amounted to) an imminent danger of serious bodily harm or death, and that the only way to escape this imminent danger was using lethal/deadly force. (emphasis added)
3. The defendant cannot violate any duty to physically retreat from the confrontation. There is a duty to physically retreat prior to using lethal/deadly force. There is no duty to physically retreat from your residence, your place of business or a vehicle owned by you or an immediate family member. In all other places, unless another exception applies, there is a duty to physically retreat. The defendant does not have any duty to physically retreat from a place that the defendant has a right to lawfully be.(ix)

Ohio has established a presumption that a person is acting in self-defense if that person is lawfully in a residence or vehicle, another person trespassed, or attempted to trespass, into that residence or vehicle and the prosecution cannot prove facts to overcome this presumption. In this limited circumstance, the prosecution has the burden to prove the defendant was not acting in self-defense.

___________________________

i For a general discussion of Ohio self-defense law, see State v. Robbins, 58 Ohio St.2d 54 (1979).
ii Stewart v. State, 1 Ohio St. 66, 75 (1852); State v. Doty, 94 Ohio St. 258 (1916); State v. Morgan, 100 Ohio St. 66, 72 (1919); Ohio Jury Instructions, 421.19(2)(A); 2013 Ohio Concealed Carry Laws Manual, Ohio Attorney General, Condition 1, pages 19-20.
iii See, e.g. State v. Williford, 49 Ohio St.3d 247, 249 (1990).
iv Marts v. State, 26 Ohio St. 163, paragraph two of the syllabus (1875); State v. Champion, 109 Ohio St. 281, paragraph one of the syllabus (1924); State v. Sheets, 115 Ohio St. 308, 310 (1926); Ohio Jury Instructions, 421.19(2)(B); 2013 Ohio Concealed Carry Laws Manual, Ohio Attorney General, Condition 2, page 20.
v R.C. 2901.09; State v. Peacock, 40 Ohio St. 333, 334 (1883); Graham v. State, 98 Ohio St. 77, 79 (1918); State v. Williford, 49 Ohio St.3d 247 (1990); Ohio Jury Instructions, 421.19(2)(C)-(4)(D); 2013 Ohio Concealed Carry Laws Manual, Ohio Attorney General, Condition 3, pages 20-21.
vi Revised Code 2901.05; 2013 Ohio Concealed Carry Laws Manual, Ohio Attorney General, Condition 3, pages 21-22.
vii Stewart v. State,1 Ohio St. 66, 75 (1852); State v. Doty, 94 Ohio St. 258 (1916); State v. Morgan,100 Ohio St. 66, 72 (1919); Ohio Jury Instructions 421.19(2)(A); 2013 Ohio Concealed Carry Laws Manual, Ohio Attorney General, Condition 1, pages 19-20.
viii See, e.g. State v. Williford, 49 Ohio St.3d 247, 249 (1990).
ix 130th Ohio General Assembly Regular Session Bill 203 amendment to Revised Code 2901.09.

The following written testimony was submitted by Buckeye Firearms Association in support of HB 234:

Testimony of Larry S. Moore
Sportsman Leader, Buckeye Firearms Association
Ohio General Assembly 130 House Bill 234

The Ohio House of Representatives
Agriculture and Natural Resources Committee
October 29, 2013

Chairman Hall
Members of the Committee

Thank you for allowing me to present testimony in support of HB 234, Hunting with Suppressors.

I come as a Sportsman Leader for Buckeye Firearms Association and as a life-long shooter and hunter. I am a twenty-five year veteran volunteer Ohio Hunter Education Instructor. I am also an outdoor writer for my local newspapers and free-lance to other publications.

You may also note that, like many seasoned shooters and hunters, I wear hearing aids. Gun fire while hunting is one reason for my hearing loss. Today we are much more aware of the dangers of noise. Shooters wear hearing protection and it is mandated in noisy industrial environments. Hearing protection has advanced to take advantage of technology. The use of suppressors while hunting is another tool that should be available to Ohio's sportsmen and women to protect their hearing while enjoying their sport.

The use of suppressors while hunting is rapidly growing in the United States. According to my research over thirty states allow the use of suppressors for some form of hunting with most allowing them for all types of hunting. All states contiguous to Ohio, except Michigan, allow the use of suppressors for all types of hunting. Indiana passed their bill earlier this year.

The use of suppressors will greatly benefit predator and varmint, coyote and groundhog, hunters. Coyote hunting is primarily done in the early morning, late evening or even into the night. The use of suppressors will not only offer hearing protection for the hunter but allow him/her to be a good neighbor. Trappers may find suppressors a useful tool. They often trap close to developed areas or where streams run along a roadway. Should they be required to dispatch an animal, they can do so using a suppressor-equipped firearm quickly and in an environmentally friendly way.

My family is starting to introduce our grandchildren to target shooting and hunting. All the grandkids receive quality hearing protection at their second birthday. While they don't start shooting at that age they are often within hearing distance when we do shoot. Sound doesn't just travel in front of a firearm so even those seated behind the firing line are exposed. The use of suppressors will allow us to introduce the youngsters to squirrel hunting without forcing them to wear hearing protection in the field. This will better allow the adults to coach and to communicate safety rules while hunting. There is an additional benefit that the use of a suppressor may also reduce the amount of recoil felt by the shooter. Recoil is an important factor when instructing new shooters.

Suppressors are tightly controlled through the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Anyone wishing to possess a suppressor must apply through the BATFE, pass a background check and pay a federal tax of $200. Additionally the county sheriff or controlling law enforcement officer must approve the application. The owner of the suppressor must always be in possession of the suppressor and carry proof of the approved paperwork for the suppressor. This is not something that criminals or poachers will be legally using. I don't see any significant potential for misuse of the law by those with criminal intentions.

In summary, I believe the use of suppressors while hunting is a valuable tool as an aid in hearing protection and being a good neighbor. It is making another safety tool available to hunters.

I will be happy to attempt to answer any question.

Thank you.

And answer questions he did - for more than 30 minutes!

One misconception the representatives had that Moore addressed is that suppressors "silence" the sound of a gunshot. Moore used the analogy of a demonstrate the noise level by comparing the sound of a 30 caliber rifle firing to that of three teenage boys running through your house, then explaining that with a suppressor it would sound more like you only have 1 1/2 boys running through your house.

One representative expressed a concern the bill would make it easier for poachers. But if they are poachers, they're already willing to break the law, so why would they care whether or not using a suppressor is legal? Representatives also were given a detailed fiscal analysis from the Legislative Services Commission which noted "The Ohio Department of Natural Resources' Division of Wildlife, which has enforcement authority over hunting violations, is not aware of any arrests or prosecutions for hunting with silenced firearms."

In addition to HB 234 and HB 203, four other pro-gun rights legislation receiving committee attention this week are HB 99 (bar new local/federal/ international gun bans from being enforced in Ohio), HB 236 (allow government officials to CCW in public buildings), HB 288 (exempt qualified veterans from CHL training), and HB 231 (eliminate many 'no-guns' victim zones), which will receive sponsor testimony from Rep. Ron Maag later today.

A total of four gun control bills are receiving committee attention this week. Two bills seek to impose mandatory "universal" background checks and gun registration on Ohioans (HB 119 and HB 137). A third, HB 31, would mandate "safe" storage of firearms, and lastly, HB 222, which seeks to provide funding for the Ohio Department of Health to "to study, determine and describe the types of bodily injuries that can result from firearm use or from others using these weapons,and requires individuals who sell firearms to provide a copy of the study and an ammunition list to consumers."

Media Coverage:
Cleveland Plain Dealer - Revised legislation would further change Ohio gun law; 'stand your ground' language remains

Ken Hanson, legislative director of Buckeye Firearms Association, said the Florida law and this legislation are different. For example, he said, unlike Florida, Ohio law gives defendants the burden of proving they acted in self-defense.

Even if this bill passes, he said, Ohio law would still require that defendants must prove they weren't at fault in creating or escalating the situation that led to the death and that they had a reasonable belief that their life was in danger.

The duty to retreat, he said, comes from 13th and 14th century England.

"We're using a medieval concept for modern self-defense," Hanson said. "And no one believes you can outrun a gun."

Columbus Dispatch - Ohio's self-defense law doesn't need fixing, officials say

Ken Hanson of the Buckeye Firearms Association said that under the bill, the state's lethal-force self-defense law would still say the person cannot be at fault in creating the situation. Also, there must still be reasonable grounds to think there was imminent danger of suffering physical harm or death.

"All the bill would do is remove the duty to physically retreat from the self-defense test," he said. "It doesn't give any new powers to use self-defense or create situations that don't exist currently."

Linda Walker, vice president of the Buckeye Firearms Association and a member of the NRA board of directors, described a scenario where a mom in a grocery-store parking lot, after putting her baby in the car, turns around and has a gun put to her head.

"Does she have a duty to retreat? In Ohio right now, she does," Walker said. "I don't know a mother who would run away from her babies."

No, she doesn't have to retreat, said both Michael Weinman, a retired Columbus police officer now working for the Fraternal Order of Police, and Franklin County Prosecutor Ron O'Brien.

...But Hanson said the woman still has to prove that she couldn't retreat. "The burden should be on the state to prove why this duty to retreat should continue."

Gongwer News Service - Concealed-Carry Overhaul Draws Support In House Panel

Ken Hanson, of the Buckeye Firearms Association, said the greatest illustration he can give committee members on the stand your ground provision is to imagine him standing before the committee with a firearm.

"How many of you feel you can retreat?" he asked. "That's what we're talking about."

Self-defense is both a federal constitutional right and a state right, Mr. Hanson said. Ohio's self-defense law, however, puts the burden of proof on the defendant through the duty to retreat. This duty, he said, would be removed under the legislation.

In response to Rep. Teresa Fedor (D-Toledo), Mr. Hanson said there were compromises made in the concealed carry law, but stressed that the less burden to entry that we give people to enter that right, however, "is a good step to take."

He added that he's not aware of any state that's seen the "wild wild west" erupt from reforms to its self-defense laws, in response to Rep. Grossman.

Ohio Public Radio Statehouse News Bureau - Gun groups say Ohio's "Stand Your Ground" law would differ from Florida's

The Buckeye Firearms Association's Ken Hansen says the bill under consideration in Ohio differs from Florida's. He says that’s because it would include a standard that the person firing the weapon in self-defense could not be the one who created the situation that put him or her at risk in the first place.

And Hansen notes there would still be a requirement that the person legitimately feels as if his or her life or well-being is in danger. But Hansen says a current requirement now on the books mandating the person retreat from the situation would be removed.

"It doesn't create any new powers to use self-defense. It doesn't create situations that don't exist currently. All that would happen is rather than having a three-step lethal force test, it would simply be a two-step lethal force test."

The bill would also reduce training requirements, would require instant background checks and would increase reciprocity for gun ownership with other states.

Toledo Blade - Ohio lawmaker seeks to broaden self-defense rules in gun measure

Ken Hanson, legislative director of the Buckeye Firearms Association, said the proposed "stand-your-ground" law in Ohio would not be the same as in Florida. In Ohio, someone who uses a gun for self-protection in such a situation still would have to prove he did not cause the situation and show that he has reasonable grounds to believe he was in imminent danger.