THE OHIO CASTLE DOCTRINE: SHIELDING CRIMINALS
WITH A PRESUMPTION OF SELF-DEFENSE
ALEXIS M. HADDOX*
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.
6 Id. at 2.
8 Brief for Appellee at 1, State v. Bundy, 974 N.E.2d 139 (Ohio Ct. App. 2012) (No.
9 See Brief for Appellant, supra note 2, at 2 (Bundy lawfully borrowed the car).
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
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.
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