Examining Oklahoma's Revised SDA

[JimPage]

Would someone, PLEASE, say what the words are to AOJP? I don't want to join a chat session where I have to research things like jargon and acronyms.

[KyJim]

As Al mentioned, the change merely makes applicable the law to an owner or employee at a place of business. It doesn't apply unless someone "unlawfully or forcefully entered" or was in the process of doing so. It's very questionable this would cover the situation of a robber walking into a store during regular business hours. Some courts might say the robber had no license to enter to commit a robbery and the entry was unlawful. Others might hold differently.

But, even so, this just creates a presumption the person using defensive force was in reasonable fear of death or serious injury. Not all state laws are the same but, in my state, a person in court merely has to submit some evidence he or she acted in self-defense and the burden is on the state to prove otherwise beyond a reasonable doubt. This was the case even before Kentucky adopted the Castle Doctrine and No Duty to Retreat doctrine by statute. The typical Castle Doctrine statute merely removed the burden of the defendant to show even slight evidence he or she acted in self-defense. As a practical matter, it would rarely make a difference because a defendant would always want to put on some affirmative proof of self-defense.

We've managed to survive as a state with this law in place for along time. I don't think it's a big deal.

[Al Norris]

Jim: Ability, Opportunity, Jeopardy and Preclusion.

[DeltaB]

Al, you misquote the statute, the statute reads "or places of business" plural. Legal definition of "business";

business n. any activity or enterprise entered into for profit. It does not mean it is a company, a corporation, partnership, or have any such formal organization, but it can range from a street peddler to General Motors.

If you are attempting to define or redifine what constitutes a business, I can assure you, every case that comes before the Court will attempt to also. However, when it comes to a home, the statute does a pretty good job of defining it.

While it doesn't redefine any rights concerning the "sanctity" of the home, it ties nearly every single public place area that "places of business" are found. (and that's everywhere)

In light of Ersland's trial, the lawmakers of Oklahoma have given "right to expect absolute safety" to just about anywhere, which would have, if the law was in effect 2 years ago, changed how the law looks at the rights of suspect. He would have been "presumed" a threat, and Ersland would not have to give any valid reason for executing him other than he entered unlawfully. 2 years ago, when I was active here, just about everyone who joined into the conversation and saw the video, knew it was a bad shoot. He was unarmed and incapacitated. I'm sure that this case will certainly end up in 10th Circuit Court, and the rulings of the High Court can forever change how deadly force is employed. And a poorly written law, just as we found in the case of Garner, can forever change decades of case law in a sweeping motion. Having this "presumption" which has for centuries been exclusive to homeowners, could see itself under attack by attaching that same "presumption" to busineses as well.

[secret_agent_man]

The right to self defense anywhere, anytime mortal danger is encountered is a tenant of uncodified natural law. This was well discussed in the dicta of Heller. However, a legal presumption that anyone you encounter outside your home, business or vehicle is a mortal threat is patently absurd as others have the same rights elsewhere as you.

[Aguila Blanca]

Originally Posted by DeltaB

Where in the Constitution, or in SCOTUS rulings, does it extend the "civil right" to have the reasonable expectation to the "right to expect absolute saftey" in public areas? Common law for centuries has recognized it for the privacy of one's home. Remember we are talking a license to a "right", just as the Second Amendment gives us the license to the "right" to bear arms.

No, no, no. The 2nd Amendment does not "give us a license" to the right to bear arms. The RKBA is regarded under the Constitution as a preexisting natural right. The 2nd Amendment doesn't grant it, it recognizes it and guarantees (supposedly) that government will not infringe it.

Secondly, even though centuries of common law have created the "castle doctrine," which gives us a right to defend our homes (our "castles") with force, not even those centuries of common law would allow a homeowner to do what Jerome Ersland did. Suppose someone invades your home, and you incapacitate him but leave him lying on the floor. Do you seriously believe that the Castle Doctrine would allow you to walk away from the immediate vicinity of the incident ... to OUTSIDE of the house, where you are completely removed from and safe from the (unconscious) guy on your living room floor ... then walk back inside, switch to a different gun, and calmly fire five rounds into the guy?

I respectfully submit that such an action is NOT within the application of deadly force allowed in home defense under any Castle Doctrine.

[DeltaB]

Aguila, concerning the official wriiten statement, the "hypostasis" which continues to allow us RKBA, IS the Consitution, and I don't want to get lost in the minutiae of symantecs. Citizens in countries that don't have that "license" wished they did. I guess anyone could pick apart any given statement.

Where you may be wrong, is that Oklahoma Lawmakers have openly said the law is being changed to allow just that. When you remove AOJP, and move under the presumption that the suspect is armed, whether actually armed or not, and a threat, whether actually an actual threat or not, which is EXACTLY what this does, you tantamount create statutes that legalize "vigilantism." The express intent stated by Lawmakers, was they didn't ever want to see an issue like the Ersland case ever rise again. Not becasue they found disdain in it, but wanted to clear the path to allow it.

[JimPage]

Al Norris:

Thank you. The thread makes sense to me now

[Al Norris]

Originally Posted by DeltaB

Al, you misquote the statute, the statute reads "or places of business" plural. Legal definition of "business";

Actually, I'm not misreading a thing. While the plural is used, as you state, it is used only in section "A," which is the legislative finding of the actual statute.

In all other places, the phrase is used in the singular. Don't believe me. Look at the actual wording of the engrossed bill you provided by reference:

A. The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes or places of business.

B. A person or an owner, manager or employee of a business is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

1. 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 a place of business, or if that person had removed or was attempting to remove another against the will of that person from the dwelling, residence, or occupied vehicle, or place of business; and

2. The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

C. The presumption set forth in subsection B of this section does not apply if:

1. 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, such as an owner, lessee, or titleholder, and there is not a protective order from domestic violence in effect or a written pretrial supervision order of no contact against that person;

2. The person or persons sought to be removed are children or grandchildren, or are otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

3. The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle, or place of business to further an unlawful activity.

D. A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

E. A person who unlawfully and by force enters or attempts to enter the dwelling, residence, or occupied vehicle of another person, or a place of business is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

F. A person who uses force, as permitted pursuant to the provisions of subsections B and D of this section, is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. As used in this subsection, the term “criminal prosecution” includes charging or prosecuting the defendant.

G. A law enforcement agency may use standard procedures for investigating the use of force, but the law enforcement agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

H. The court shall award reasonable attorney fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection F of this section.

I. The provisions of this section and the provisions of the Oklahoma Self-Defense Act, Sections 1290.1 through 1290.26 of this title, shall not be construed to require any person using a pistol pursuant to the provisions of this section to be licensed in any manner.

J. As used in this section:

1. “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people;

2. “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest; and

3. “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

SECTION 2. This act shall become effective <November 1, 2011>.

Note: The only markup I have added was to bold the markups by the legislature, in order to make it more obvious what was changed.

Therefore, in lieu of another statutory reference to what constitutes "business," it is given its salutary and ordinary meaning.

[Bartholomew Roberts]

Where in the Constitution, or in SCOTUS rulings, does it extend the "civil right" to have the reasonable expectation to the "right to expect absolute saftey" in public areas? Common law for centuries has recognized it for the privacy of one's home. Remember we are talking a license to a "right", just as the Second Amendment gives us the license to the "right" to bear arms. If you cannot find one, then more than likely it will be challenged, especially in light of the numerous cases already in Oklahoma Courts and and before the Oklahoma Supreme Court over this very section of law.

The Constitution is not a "grant" or "license" of rights to people, it is a restriction on the federal government. Through the 14th Amendment, some of these restrictions have also been applied to the states. You appear to believe that unless the Consitution grants a "right to absolute safety" the entire Oklahoma statute you have quoted can be overturned because there is no right in the Constitution. I believe that is incorrect for a myriad of reasons.

1. As mentioned, the states have powers that the Federal government do not and they may grant rights that the Federal government may not. For example, some states have a looser standard of evidence allowed in a courtroom than what the federal government would allow.

2. The Consitution is a restriction on federal and sometimes state governments. Its restrictions apply only to them.

3. The common law Castle Doctrine predates the United States and goes back hundreds of years. It has been made a part of statutory law in most states and there are small but important variations in how it works from state to state; but I've yet to hear of any example in any field of law where a court decided to invalidate entire ancient principles of law because a state legislator drafted his interpretation of that law too broadly.

I don't think it's irrational to discuss this issue, but you are free to your opinon.

I think discussing the law is perfectly rational. I don't think your conclusion is rational because I don't see any legal basis for your fears.

Again, it's been a couple years since being here on this board, and I knew it has a Law and Civil Rights section, but I can already see it's not really the place to discuss this issue.

It is a perfect place to discuss the issue. There is an impressive amount of legal knowledge in this forum.

Al, the organ grinder in the park....the business guy on the sidewalk selling his art...the public arena vendor selling cola...the carpenter who's office is his truck....business owners are not restricted to a specific location. Extending the "right to expect absolute safety" to businesses does not restrict it to brick and mortar in any of the verbage. It's dangerous territory. It states ANY business.

Al, has already made an argument for why your interpretation of "place of business" may be too broad. Let me just point out another problem with your interpretation

First, you are too hung up on the "right of absolute safety" language. I'll admit, it isn't the best language choice; but all it says is that the Oklahoma legislature "hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes or places of business." It isn't promising that right to them. It is simply giving an overall direction, much like "life, liberty, and the pursuit of happiness."

Second, in order for the Castle Doctrine to apply, you must "forcibly and unlawfully enter" said place of business or forcibly remove someone against their will from said place of business. Even if we accept your definition of "place of business", I am having a difficult time imagining a scenario where someone can "forcibly and unlawfully enter" an organ grinder's place of business in a way that would invoke this statute without also raising half a dozen other clear justifications for self-defense. Perhaps you can better explain what type of scenario you see as problematic?

Tennessee v Garner proves States giving "rights" to fire upon fleeing felons unconsitutional and made sweeping changes to use of deadly force. (which Oklahoma has the same laws on it's books)

Again, you've taken a case and read it much, much to broadly. In Tennessee vs. Garner, the officer used deadly force against a fleeing suspect after the suspect ignored the order to halt. The officer used deadly force even though he stated he was reasonably sure that the suspect was unarmed and that it appeared to be a teenager. The court held that the seizure of a person by deadly force was highly instrusive and that the governmental interest in doing so was not sufficient to outweigh the right in this particular set of facts

Tennessee vs. Garner applies to the government as a restriction. Not citizens. Note that several states have laws authorizing the use of deadly force in circumstances similar to Tennessee vs. Garner and none of those statutes have ever been held unconstitutional.

I wish you the best, but like I said, need to move this to a legal board.

The problem isn't the board. It is that you have not shown any legal foundation for your argument and you misinterpret existing statute and case law in a way that suggests you aren't very familiar with the law yourself.

And a poorly written law, just as we found in the case of Garner, can forever change decades of case law in a sweeping motion. Having this "presumption" which has for centuries been exclusive to homeowners, could see itself under attack by attaching that same "presumption" to busineses as well.

This is the closest you've come yet to making a coherent legal argument for how the new Oklahoma statute could conceivably produce a problem - and even it is so vague that I have to fill in the blanks and guess at what you mean.

You appear to be concerned that the Oklahoma law is written so broadly that someone will shoot someone in a circumstance that results in a bad set of facts for self-defense advocates. The problem is, as pointed out in the previous posts, it is very difficult to imagine such a scenario from the law as written. Even with your broad interpretation of business, one must also forcibly and unlawfully enter said business. Under what scenario is someone who shouldn't be shot, going to be shot in a way that a case can even develop?

Assuming that the above happens and the case is brought, it would first have to get past Oklahoma laws restraining civil suits against justified self-defense shoots. Assuming it can successfully do that, it would then have to make its way to a higher court. Once in that higher court, it would somehow have to convince said court to overturn principles established in English common law hundreds of years ago prior to the existence of our nation.

Do you see why some of us are having a hard time seeing this threat, let alone assessing the probability of the threat?

When you remove AOJP, and move under the presumption that the suspect is armed, whether actually armed or not, and a threat, whether actually an actual threat or not, which is EXACTLY what this does, you tantamount create statutes that legalize "vigilantism."

First, this statute doesn't remove AOJP. It simply satisfies the elements. If someone has unlawfully and forcibly entered your home or business, the law will presume that a fear of imminent peril of death or great bodily harm to himself or herself or another in such a circumstance is reasonable. For the shooter, this means you will not have to guess at the intruder's intent in forcibly and unlawfully entering your home or business. Is it merely a particularly aggressive approach to selling girl scout cookies or am I in serious trouble?

However, this presumption that the fear is reasonable is rebuttable. If it does turn out to be an unusually aggressive approach in selling Girl Scout cookies, the prosecutor can introduce evidence to show why the presumption is unreasonable in this case, for example:

You did recognize that the intruder was an 8yr old girl who was unarmed and wearing a Girl Scout uniform, correct? Didn't you tell the responding officer that she was screaming "You MUST BUY my cookies!"?

The express intent stated by Lawmakers, was they didn't ever want to see an issue like the Ersland case ever rise again. Not becasue they found disdain in it, but wanted to clear the path to allow it.

That may have been their stated intent; but if Ersland shot the attacker after he was down and no longer a threat, then the presumption that he had a reasonable fear is rebuttable. Take that whole Ersland shooting scenario and transplant it to his home and you still have the same legal result. Ersland's problem isn't that he didn't have Castle Doctrine, it is that he appeared to be shooting someone who was no longer a threat.

[carguychris]

+1 Bartholomew; I think you covered all of my questions for the OP about the actual OK statute.

However, I'd like to ask the OP to elaborate about something else...

Colorado, a few years past, attempted to include this same concept and wording in their SDA, but found it would seen as unconstitutional and scrapped it.

Care to elaborate? I'm curious. What about the CO statute was the same and what was different?

[Eghad]

If you are an armed citizen it would be in your favor to know the use of Force Laws for your state. As said in the Ersland case the attackers used a firearm to attack him. He was justified in using deadly force to confront deadly force at that moment

Once his attacker had fled and the other was unconscious the threat had ended. Ersland chose to get a gun and shoot the guy five more times. I am not familiar with the use of force laws in Oklahoma but this would seem to not be justified. This would not even be a defense available to law enforcement personnel.

It is hard for me to understand that any law that strengthens the right of self defense in other places would weaken that same right in a home when we are attacked in an unlawful manner with force by other persons.

However a right is not a blanket excuse for misusing it. With rights comes responsibility.

[DeltaB]

Colorado story here....

http://www.coloradostatesman.com/kop...eeds-more-work

http://www.bizjournals.com/denver/ne...ke-my-day.html

And Bart, thanks for your responses.

[Aguila Blanca]

DeltaB, another way in which you are not fully interpreting or representing this bill is when you imply that THIS change will be the first to extend the expectation of complete safety outside of the home. Yet looking at the strikeouts in the language as quoted by Al Norris, it is clear that vehicles are already covered. My supposition is that this was a change made some years ago in response to the rise in carjackings.

One's vehicle is not one's home, and certainly not when the vehicle is not even in the same town or county. In fact, the way the law is written it doesn't even have to be your own vehicle -- it just says "occupied," which could include a taxi, a public service bus, a limousine, or a school bus. Yet the legislature determined that it was in the public interest to "expand" the protections of the castle doctrine to include vehicles -- of all types and kinds, apparently. So your position that further expansion to now include places of business is the first expansion outside of the home is incorrect.

[Eghad]

I don't know about those arguments in the media piece

Here in Texas if you choose to use your concealed carry permit and the bullet goes astray and injures or kills another person you are still responsible for where that bullet goes.

I would assume the same to be true if I was in my home and the bullet missed penetrated the neighbors house and injured or killed a neighbor no matter what the castle law says because that neighbor was not in my home nor was he attacking me.

Also the argument for shooting a kid for a candy bar was pretty bogus in my opinion. No you can not shoot a kid for stealing a candy bar because he is not using deadly force against you. Its amazing some of the examples the anti gun forces will use when it comes to gun laws.

Now if that kid came into the store and pulled a real pistol on me while stealing that candy bar that changes the situation.

The purpose of these laws are to relieve the person that was found to have defended themselves justifiably and in accordance with the law the relief from having to defend themselves against charges and lawsuits that do not have merit because the person that got shot was engaged in illegal behavior and used what was considered deadly force or the DA is a anti gun guy and is going to press charges because of his opinions on citizens and guns even though the shooting was found to be justified.

I would have to read those laws to believe they give an armed citizen carte blanche to do anything he wants to. I am pretty sure to get the immunity from prosecution his actions have to be in compliance with the law.

[DeltaB]

In light of the current Ersland case, this fear is a reality... and one of the things that will end up in Curcuit Court...and is one of the issues our amended law brings with it..

(from the ColoradoStatesman)
There is no period of time or limit on what the occupant can do. The criminal may have been rendered unable to move or may even be unconscious. That does not matter under the present law. Wilbanks points out defendant’s response does not have to be a reasonable use of force. In a number of cases, after the intruder can no longer “participate” the defendant continued to inflict damage. Wilbanks writes of a case where defendant stabbed the victim 32 times and even kept stabbing him after he had fallen to the floor. The case was dismissed under “Make My Day.”

“The occupant could start by shooting intruder’s toes and work his way up and torture or even execute the intruder. The law does not indicate the threat has to be continuing.” The law should be changed to require immunity only when the threat is believed to be continuing.

[Bartholomew Roberts]

DeltaB, I am not sure how the Colorado law was written as your article does not include that, so I can't say if the assessment in the article is correct. I can point out that the statute is not similar to Oklahoma though because one of the major changes the article you linked to recommends is to change "uninvited entry" to "unlawful entry."

As you can see, the Oklahoma statute already started out using the phrase "unlawful."

[carguychris]

I can point out that the statute is not similar to Oklahoma though because one of the major changes the article you linked to recommends is to change "uninvited entry" to "unlawful entry."

As you can see, the Oklahoma statute already started out using the phrase "unlawful."

+1 again. I've found the CO statute in question...

18-1-704.5 Use of deadly physical force against an intruder.
(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.

(emphasis mine)

From the contents of the Colorado Statesman article, I assume that the CO proposal was to add business owners and employees to this statute.

Note that the CO statute requires two tests before criminal intent comes into question:

• The entry must be unlawful; and
• The visitor must be uninvited.

However, many businesses naturally and routinely invite the general public to enter, so the "uninvited test" would have to be removed to make the law meaningful. However, the wording of the statute makes this change difficult without rendering the entire law overly broad.

Also, as the author of the article (IMHO correctly) points out, the statute already contains one apparent contradiction- does it apply to "citizens... within their own homes" (section 1) or "any occupant[s] of a dwelling" (section 2)? Section 1 implies ownership, while Section 2 merely implies physical presence, rendering the statute somewhat vague. Can the maid shoot an uninvited intruder? What about the UPS delivery man?

I suspect that supporters of the existing law were afraid of throwing the baby out with the bathwater and let the proposal die in committee rather than risk gutting the existing poorly-worded law.

IMHO the OK law is worded better because it establishes at the outset that the entry must be "unlawful and forcible", and it is more specific about who is allowed to use deadly force.

[Bartholomew Roberts]

Another important distinction is that whether in a home or a business, the Oklahoma law gives you the presumption that you had a reasonable fear, which can be rebutted by evidence that your fear was not reasonable as I explained earlier.

The Colorado law has much stronger language for the homeowner than the Oklahoma law. If we applied just the statute that carguychris quoted (disregarding any other relevant statutes or case law and assuming a place of business is covered) to the Ersland case, then all Ersland would need to justify shooting the man on the ground under Colorado law is a reasonable belief that the man "might use any physical force, no matter how slight, against an occupant."

If I was Ersland's attorney, I'd like my chances under the Colorado law much better than the Oklahoma law. Because the Oklahoma law is drafted so differently from the Colorado law, I don't think that using the Colorado attempt to expand Castle Doctrine to businesses is a good comparison for your argument that the Oklahoma law is overbroad.

Originally Posted by carguychris

IMHO the OK law is worded better because it establishes at the outset that the entry must be "unlawful and forcible", and it is more specific about who is allowed to use deadly force.

+1 back at ya. Even though the Colorado law appears to offer stronger protection, it isn't drafted very well. I think the Oklahoma law offers plenty of protection for the homeowner or business owner while being drafted better and having less grey areas.