No Duty to Retreat in Ohio – What Does it Mean to You?

by Dean Rieck

On Monday, January 4, 2021, Governor DeWine signed Senate Bill 175. This was the result of an historic effort by Buckeye Firearms Association to abolish the "duty to retreat," an unfair and dangerous policy in Ohio law related to the use of lethal force in self-defense.

SB 175 also provides immunity for nonprofit corporations, such as churches and charities, when someone is harmed in a situation related to carrying a firearm.

In this article, I'll explain these changes and what they mean to you. Note that I am not an attorney. Buckeye Firearms Association does not provide personal legal advice. What follows is general information for educational purposes only. If you need actual legal advice, I recommend that you contact an attorney.

These changes go into effect 90 days after the bill was signed and filed with the Secretary of State, so they will become law on April 6, 2021.

To find out the status of duty to retreat or "stand your ground" where you live, visit Handgunlaw.us and click on your state.

NO DUTY TO RETREAT What is the "duty to retreat"? In simple terms, duty to retreat means that you are required by law to attempt "escape" before using lethal force. In practice, it means you have to prove you could not escape if you are on trial for shooting someone in self-defense. Here's how the Ohio Revised Code reads now. This will change on April 6.

2901.09 (B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person who lawfully is in that person's residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence, and a person who lawfully is an occupant of that person's vehicle or who lawfully is an occupant in a vehicle owned by an immediate family member of the person has no duty to retreat before using force in self-defense or defense of another.

This language is part of Ohio's "castle doctrine," which became effective in 2008, and removes the duty to retreat in your home and car. It was a big step forward at the time, because it gave the benefit of the doubt to victims of violent crime. However, it was also limited because it did not apply to other locations.

What's the difference between "stand your ground" and "duty to retreat"? There's really no difference. If you have a "stand your ground" law, it means the duty to retreat has been removed. The words "stand your ground" are generally used by the media and gun control activists to give the false impression that gun owners are highly aggressive and want to shoot people for minor offenses or arguments.

In reality, the phrase "stand your ground" does not appear in Ohio law, and it is not an accurate description of what removing the duty to retreat accomplishes.

What does removing the "duty to retreat" change? Removing the duty to retreat takes the concept of castle doctrine and applies it to every location outside your home or car where you have a legal right to be. Here's the way the new law will read beginning April 6.

2901.09 (B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence, if that person is in a place in which the person lawfully has a right to be. (C) A trier of fact shall not consider the possibility of retreat as a factor in determining whether or not a person who used force in self-defense, defense of another, or defense of that person's residence reasonably believed that the force was necessary to prevent injury, loss, or risk to life or safety.

In addition to this language dealing with criminal actions, there is also nearly identical language for civil actions.

Bottom line, if you can legally be in a place, you have no duty to retreat before using lethal force in self-defense. However, this does not change the standard for when use of lethal force is legally justified.

When can you legally use lethal force in self-defense?

Attorney and firearms instructor Sean Maloney has provided what I consider to be the best formula for evaluating the legality of lethal force:

Using lethal force in self-defense is legally justifiable if you have an honest and reasonable fear that you are in immediate danger of death or great bodily harm.

While this language may not appear in formal law, it provides a near universal standard. You must fear death or great bodily harm. This fear must not only be honest, it must also be considered reasonable by others in your community. The danger must be immediate, meaning it's happening right now.

The fact that the law does not impose an arbitrary duty to retreat does not in any way change this.

What other elements are considered in the use of lethal force?

In addition to the universal formula for use of lethal force, some other elements will generally play into how your actions will be evaluated. These additional elements are what I would call the "good guy" rules. You want to be considered the innocent party or the good guy in any self-defense situation.

You should not be committing a crime. You should not be the initial aggressor. And you are in a place where you have a legal right to be.

So, for example, if you're robbing a bank, starting a fight, or breaking into someone's house, you tend to lose the mantle of good guy. You put yourself into a much more difficult position to argue that you used lethal force justifiably. Of course every case is fact-specific, so there's no way to consider every scenario. But in general, you want to be seen as the good guy if you are forced to shoot someone.

Why is removing the duty to retreat important?

If removing the duty to retreat doesn't change how using lethal force is justified, what difference does it make?

Just as castle doctrine gives you the benefit of the doubt when you claim self-defense in your home, stand your ground or no duty to retreat gives you the benefit of the doubt when you claim self-defense in all other locations. The authorities must prove that you are guilty of a crime and don't immediately treat you like a murderer if you can't prove retreat was impossible.

In a sense, it puts the law more on the side of victims of violent crime and less on the side of those committing the violence.

IMMUNITY FOR NONPROFITS

The second change made by SB 175 is what this bill was originally about before the duty to retreat language was amended into it. It amounts to fixing an oversight in the law regarding civil liability.

When there is an injury, death, or loss related to a licensed person carrying a handgun, the law already provides civil immunity protection for private employers, political subdivisions, and institutions of higher education. But the law overlooks nonprofits, including churches, charities, and other such organizations.

SB 175 remedies this oversight by adding a section giving these entities the same protection. Here's the new language added to the law that will take effect April 6.

Sec. 2923.126 A nonprofit corporation shall be immune from liability in a civil action for any injury, death, or loss to person or property that allegedly was caused by or related to a licensee bringing a handgun onto the premises of the nonprofit corporation, including any motor vehicle owned by the nonprofit corporation, or to any event organized by the nonprofit corporation, unless the nonprofit corporation acted with malicious purpose. A nonprofit corporation is immune from liability in a civil action for any injury, death, or loss to person or property that allegedly was caused by or related to the nonprofit corporation's decision to permit a licensee to bring a handgun onto the premises of the nonprofit corporation or to any event organized by the nonprofit corporation.

For example, if you carry a firearm at your church and are forced to use it in defense of yourself or others, the nonprofit corporation is immune from a civil lawsuit. Most churches are 501(c)(3) charitable corporations.

If these two changes to Ohio law seem small, you're right. The adjustments to the Ohio Revised Code are models of clarity and simplicity. But their importance cannot be overstated. They remove egregious barriers for gun owners and enable them to more fully exercise the fundamental right of keeping and bearing arms. And despite the false claims of opponents, they actually make Ohio a better, safer, and more just place to live, work, and raise a family.

Dean Rieck is Executive Director of Buckeye Firearms Association, a former competitive shooter, NRA Patron Member, #1 NRA Recruiter for 2013, business owner and partner with Second Call Defense.