130th Ohio General Assembly
The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.

H. B. No. 541  As Introduced
As Introduced

126th General Assembly
Regular Session
2005-2006
H. B. No. 541


Representatives Buehrer, Taylor, Law, Blasdel, Hood, Seitz, Fessler, Brinkman, Harwood, Aslanides, Latta, Willamowski, Calvert, Evans, C., Combs, Schaffer, Evans, D., Faber, Cassell, Setzer, Collier, Peterson 



A BILL
To enact sections 2305.61, 2305.62, 2305.63, 2306.64, 2305.65, and 2305.66 and to repeal section 2305.40 of the Revised Code to provide statutory criteria for when a person may use force or deadly force to defend the person or another person or to prevent or terminate a trespass on or illegal interference with property; to establish a presumption related to use of defensive force intended or likely to cause death or serious physical harm of when the user of the defensive force holds a reasonable fear of imminent peril of death or serious physical harm; to provide that a person authorized to use deadly force or defensive force intended or likely to cause death or serious physical harm generally does not have a duty to retreat; and to repeal the existing statutory provisions regarding the immunity of an owner, lessee, or renter of real property as to self-defense or defense of others.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1.  That sections 2305.61, 2305.62, 2305.63, 2306.64, 2305.65, and 2305.66 of the Revised Code be enacted to read as follows:
Sec. 2305.61.  As used in sections 2305.61 to 2305.66 of the Revised Code:
(A) "Dwelling" means a building or conveyance of any kind that has a roof over it and that is designed to be occupied by people lodging in the building or conveyance at night. "Dwelling" includes any building or conveyance of a type described in this division, regardless of whether the building or conveyance is temporary or permanent, or mobile or immobile. "Dwelling" includes any attached porch or tent that has a roof over it and that is designed to be occupied by people lodging in it at night.
(B) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(C) "Third person" means, in a context in which force, deadly force, or defensive force is used, any person other than the person who uses the force, deadly force, or defensive force and other than the person against whom the force, deadly force, or defensive force is used.
(D) "Vehicle" means a conveyance of any kind, whether or not motorized, that is designed to transport people or property.
Sec. 2305.62.  (A) A person is justified in using force, except deadly force, against another when and to the extent that the person using the force reasonably believes that the use of the force is necessary to defend the person's self or a third person against the imminent use of unlawful force by the person against whom the force is used.
(B) A person who is justified in using force pursuant to division (A) of this section is justified in the use of deadly force against the other person and does not have a duty to retreat if either of the following applies:
(1) The person using the deadly force reasonably believes that the use of the deadly force is necessary to prevent imminent death or serious physical harm to the person's self or a third person or to prevent the imminent commission of a forcible felony.
(2) The circumstances described in division (A) or (B) of section 2305.63 of the Revised Code apply.
(C) For the purposes of divisions (A) and (B) of this section, a person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Sec. 2305.63.  (A)(1) A person is justified in the use of defensive force against another that is intended or likely to cause death or serious physical harm to the other person and does not have a duty to retreat if the person using the defensive force holds a reasonable fear of imminent peril of death or serious physical bodily harm to the person's self or a third person.
(2) For the purposes of division (A)(1) of this section, a person is presumed to have held a reasonable fear of imminent peril of death or serious physical harm to the person's self or a third person when using defensive force that is intended or likely to cause death or serious physical bodily harm to another if both of the following apply:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or that person had removed or was attempting to remove another against the other person's will from a dwelling, residence, or occupied vehicle.
(b) The person who uses the defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act of a type described in division (A)(2)(a) of this section was occurring or had occurred.
(3) The presumption set forth in division (A)(2) of this section does not apply in any of the following circumstances:
(a) The person against whom the defensive force is used has the right to be in, or is a lawful resident of, the dwelling, residence, or vehicle, and that person is not the subject of a protection order issued or consent agreement approved pursuant to section 2903.213, 2903.214, 2919.26, or 3113.31 of the Revised Code, a protection order issued by a court of another state, or a protection order issued pursuant to section 2945.04 of the Revised Code. For the purposes of this division, a person who has the right to be in, or is a lawful resident of, a dwelling, residence, or vehicle includes, but is not limited to, the owner, lessee, or titleholder of the dwelling, residence, or vehicle. As used in this division, "protection order issued by a court of another state" has the same meaning as in section 2919.27 of the Revised Code.
(b) The person sought to be removed by the person against whom the defensive force was used as described in division (A)(2)(a) of this section is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used.
(c) The person who uses the defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity.
(d) The person against whom the defensive force is used is a law enforcement officer who is entering or attempting to enter a dwelling, residence, or vehicle in the performance of the officer's official duties, and either the officer identified self as a law enforcement officer in accordance with any applicable law, or the person using the defensive force knew or reasonably should have known that the person entering or attempting to enter the dwelling, residence, or vehicle was a law enforcement officer.
(B) A person who is not engaged in an unlawful activity and who is attacked in any place where the person has a right to be has no duty to retreat, has the right to stand the person's ground and meet force with force, including deadly force, and is justified in using the force, including deadly force, if the person reasonably believes it is necessary to do so to prevent death or great bodily harm to the person's self or a third person or to prevent the commission of a forcible felony.
(C) For the purposes of divisions (A) and (B) of this section, a person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Sec. 2305.64. (A) A person is justified in the use of force, except deadly force, against another when and to the extent that the person using the force reasonably believes that the use of the force is necessary to prevent or terminate the other person's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property that lawfully is in the person's possession, that lawfully is in the possession of a third person who is a member of the person's immediate family or household, or that is property of a third person whose property the person has a legal duty to protect.
(B) A person who is justified in using force pursuant to division (A) of this section is justified in the use of deadly force against the other person only if the person using the deadly force reasonably believes that the use of the deadly force is necessary to prevent the imminent commission of a forcible felony.
(C) For the purposes of divisions (A) and (B) of this section, a person does not have a duty to retreat if the person is in a place where the person has a right to be.
(D) For the purposes of this section, a person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Sec. 2305.65.  (A) A person who uses force, deadly force, or defensive force as permitted in section 2305.62, 2305.63, or 2305.64 of the Revised Code is justified in using the force, deadly force, or defensive force and is immune from criminal prosecution or liability and from liability for injury, death, or loss to person or property in any civil action that is based on or related to the use of the force, deadly force, or defensive force, unless the person against whom the force, deadly force, or defensive force was used is a law enforcement officer who was acting in the performance of the officer's official duties, and the officer identified self in accordance with any applicable law, or the person using the force, deadly force, or defensive force knew or reasonably should have known that the person was a law enforcement officer. As used in this division, "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.
(B) A law enforcement agency may use standard procedures for investigating a person for the use of force, deadly force, or defensive force as described in division (A) of this section, but the agency may not arrest the person for using the force, deadly force, or defensive force unless the agency determines that there is probable cause to believe that the force, deadly force, or defensive force that was used was unlawful.
(C) If a person is sued in a civil action that is based on or related to the use of force, deadly force, or defensive force described in division (A) of this section and the court finds that the immunity provided in division (A) of this section applies to the person, the court shall award to the person reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the person in defense of the civil action.
Sec. 2305.66. The justifications for the use of force, deadly force, or defensive force described in sections 2305.62, 2305.63, 2305.64, and 2305.65 of the Revised Code are not available to a person to whom either of the following applies:
(A) The person is attempting to commit, committing, or escaping after the commission of a forcible felony.
(B) The person initially provokes the use of force against the person's self, unless either of the following applies:
(1) The force directed against the person as a result of the provocation is so great that the person reasonably believes that the person is in imminent danger of death or serious physical harm and that the person has exhausted every reasonable means to escape that imminent danger other than the use of force that is likely to cause death or serious physical harm to the assailant.
(2) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that the person desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
Section 2.  That section 2305.40 of the Revised Code is hereby repealed.
Section 3. The General Assembly declares that its intent in enacting sections 2305.61 to 2305.66 and repealing section 2305.40 of the Revised Code in Sections 1 and 2 of this act is, in part, to supersede the doctrine of Ohio law developed and affirmed by the state's courts in numerous decisions, including State v. Cassano (2002), 96 Ohio St. 3d 94; State v. Thomas (1997), 77 Ohio St. 3d 323; State v. Williford (1990), 49 Ohio St. 3d 247; State v. Jackson (1986), 22 Ohio St. 3d 281; State v. Robbins (1979), 58 Ohio St. 2d. 74; Graham v. State (1918), 98 Ohio St. 77; Marts v. State (1875), 26 Ohio St. 162; Columbus v. Dawson (Franklin County, 1986), 33 Ohio App. 3d 141; et al., that generally holds that a person who is outside of the person's place of residence or business and who is attacked has a duty to retreat before using deadly force in self-defense or in defense of another.
Please send questions and comments to the Webmaster.
© 2014 Legislative Information Systems | Disclaimer
Index of Legislative Web Sites