The Ohio Castle Doctrine: Shielding Criminals with a Presumption of Self-Defense

• Author: Alexis M. Haddox
• Position: Capital University Law School, J.D., May 2013; Miami University, B.A. in Political Science, May 2010
• Pages: 1105-1137

THE OHIO CASTLE DOCTRINE: SHIELDING CRIMINALS

WITH A PRESUMPTION OF SELF-DEFENSE

ALEXIS M. HADDOX*

I. INTRODUCTION

On the night of April 19, 2010, an altercation between two drug

dealers culminated with Eric Bundy shooting and killing Richard Harris.1

Eric lived with Richard’s brother for a short period prior to the altercation,2

but after a dispute over finances,3 Bundy robbed Harris of the firearm and

drugs kept in the residence.4 Bundy then arranged to sell the stolen items.5

Bundy and his brother traveled to the location designated for the drug

deal, a church parking lot.6 However, unbeknownst to the Bundy brothers,

Harris and his brother had come with the arranged buyer.7 Harris intended

to get his firearm and drugs back.8

The Harris brothers approached the car Bundy occupied9 and began

pounding on the window.10 They eventually broke the window, at which

point Bundy shot Richard Harris in the chest with the forty-caliber pistol

he had stolen earlier that day.11 The Harris brothers had no weapons in

Copyright © 2013, Alexis M. Haddox.

* Capital University Law School, J.D., May 2013; Miami University, B.A. in Political

Science, May 2010. I would like to express my sincere gratitude to Professor Scott

Anderson of Capital University Law School for his invaluable feedback and guidance as I

wrote this Comment, as well as the Capital University Law Review editors and staff for

their hard work throughout the editing process. I would also like to thank my family and

wonderful husband, Korey, for their encouragement.

1 State v. Bundy, 974 N.E.2d 139, 143–44 (Ohio Ct. App. 2012).

2 Id. at 143; Brief for Appellant at 1, State v. Bundy, 974 N.E.2d 139 (Ohio Ct. App.

2012) (No. 11CA818).

3 See Brief for Appellant, supra note 2, at 1.

4 Id.

5 Id.

6 Id. at 2.

7 Id.

8 Brief for Appellee at 1, State v. Bundy, 974 N.E.2d 139 (Ohio Ct. App. 2012) (No.

11CA818).

9 See Brief for Appellant, supra note 2, at 2 (Bundy lawfully borrowed the car).

10 Id.

11 Id.

1106 CAPITAL UNIVERSITY LAW REVIEW [41:1105

their possession at the time of the confrontation.12 Bundy fled the scene,

but was later tracked down by law enforcement.13

At trial, defense attorneys contended that Bundy’s actions were lawful

pursuant to Ohio Revised Code sections 2901.05(B) and 2901.09.14 The

two sections, codified in 2008 and commonly kn own as the “castle

doctrine,” create a rebuttable presumption that a defendant acted in self-

defense.15 By utilizing these provisions,16 Bundy avoided a murder

conviction and was instead convicted only of the lesser offense of reckless

homicide.17

On appeal,18 defense attorneys argued that even the conviction of

reckless homicide was not warranted under Ohio Revised Code sections

2901.05(B) and 2901.09.19 The defense argued that the trial court provided

jury instructions contrary to that which the legislation requires.20 What the

defense did not contemplate, however, was the probable reason for this

decision. The trial court, like other Ohio courts that have encountered this

legislation, attempted to avoid acquitting an at-fault criminal shielded by

Ohio’s castle doctrine legislation.21

This Comment demonstrates that Ohio’s castle doctrine, as codified in

Ohio Revised Code sections 2901.05(B) and 2901.09, is flawed in its

construction because it protects at-fault criminals.22 At no point does this

12 Id. at 3.

13 See Brief for App ellee, supra note 8, at 1.

14 State v. Bundy, 974 N.E.2d 139, 145, 158 (Ohio Ct. App. 2012).

15 See discussion infra Part III.

16 Brief for Appellant, supra note 2, at 6.

17 Id.

18 Decided on August 20, 2012. State v. Bundy, 974 N.E.2d 139 (Ohio Ct. App. 2012).

19 Brief for Appellant, supra note 2, at 4–6.

20 Id. at 17. See also discussion infra Part III.

21 See Philip Bogdanoff, Ohio’s Castle Doctrine: Presuming Self-Defense, OHIO

LAWYER, September/October 2011, at 22–23 (citing State v. Suarez, No. 10CA0008, 2011

WL 1106988, at *3 (Ohio Ct. App. Mar. 25, 2011); State v. Madera, No. 93764, 2010 WL

3910750, at *6 (Ohio Ct. App. Oct. 7, 2010); State v. Clellan, No. 09AP-1043, 2010 WL

3239521, at *5 (Ohio Ct. App. Aug. 17, 2010); State v. Miller, No. CA2009-10-138, 2010

WL 3213009, at *6 (Ohio Ct. App. Aug. 16, 2010)) (“[M]ost courts have refused to apply

this presumption or find that the defendant acted in self-defense, especially where the

defendant is at fault in creating the situation.”).

22 Regarding Bundy’s application of the castle doctrine legislation, Pike County

Prosecutor, Rob Junk, stated: “[The law] was not made to protect drug dealers from drug

dealers, but that’s how it’s being used.” Randy Ludlow, ‘Castle Doctrine’ Coming Under

Fire, COLUMBUS DISPATCH, November 14, 2010, at B1.

2013] THE OHIO CASTLE DOCTRINE 1107

Comment assert that legislation permitting law-abiding citizens to protect

themselves to a greater extent than they otherwise could under common

law is undesirable. Rather, it examines the legislation, including the intent

of the Ohio General Assembly and the unintended complexities and

consequences of the legislation’s present construct ion.23

First, it is necessary to understand the historical roots of the related

common law doctrines of self-defense and duty to retreat. Therefore, this

Comment explores the historical development and common law rules, and

most importantly, how those rules safeguarded against abusing the

common law castle doctrine.24

The analysis finishes by contemplating solutions that are desirable to

the legislature, law-abiding citizens, advocates of the codified castle

doctrine, and the Ohio prosecutors that are frustrated by the current law

when it protects at-fault criminals.25

II. THE COMMON LAW CASTLE DOCTRINE

A. Historical English Roots

Under English common law, the castle doctrine served as one of only

two exceptions to the stringent self-defense principle of duty to retreat.26

The duty to retreat principle required an individual to vigorously attempt to

escape attack and forbade the use of deadly force until further retreat

became impossible; the victim “must have first retreated until his back was

to the wall.”27 This principle became deeply embedded in common law

due to both a societal concern that “the right to defend may be mistaken as

the right to kill,”28 and a desire to preserve human life and prevent

violence.29 However, the common law did recognize an exception to the

duty to retreat when a person was attacked in his home.30 In 1604, the

23 See discussion infra Part III.

24 See discussion infra Part II.

25 See discussion infra P art IV.

26 Benjamin Levin, A Defensible Defense?: Reexamining Castle Doctrine Statutes, 47

HARV. J. ON LEGIS. 523, 528 (2010) (prior to the thirteenth century, the only justifications

for homicide under English common law were those “committed under the auspices of the

state” or in self-defense).

27 Id. (citing RICHARD MAXWELL BROWN, NO DUTY TO RETREAT 4–6 (1991)).

28 FREDERIC S. BAUM & JOAN BAUM, LAW OF SELF DEFENSE 6 (1970).

29 Levin, supra note 26, at 528.

30 Semayne’s Case, (1604) 77 Eng. Rep. 194 (KB) 195. See also Joseph H. Beale, Jr.,

Retreat from a Murderous Assault, 16 HARV. L. REV. 567, 574–75 (1902–1903); Christine

(continued)