In this section you will learn about Oregon law regarding the Use of Force upon another person. First, you need to understand some general terms and definitions.
Use of Force is the use of physical force you may use upon another person that would otherwise constitute an offense. This ranges from offensive physical contact to assault and murder.
Physical Force includes, but is not limited to, the use of an electrical stun gun, tear gas or mace. (Examples are punching, kicking, striking, and pushing.)
Deadly Physical Force means physical force that, under the circumstances in which it is used, is readily capable of causing death or serious physical injury, such as the use of deadly and dangerous weapons.
Your actions will be judged using the standard of Reasonableness. Decisions of liability are made from the objective facts as they are known at the time of the event and from the perspective of a reasonable person. Essentially, would a person with your experience and training placed in the same situation make the same decisions as you did at the time? Hindsight is not supposed to be used in determining reasonableness.
ORS 161.015, Deadly weapon means any instrument, article or substance specifically
designed for and presently capable of causing death or serious physical injury, such as a gun or knife.
ORS 161.015 , Dangerous weapon means any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury. For example, if someone was in close proximity to you and is in possession of a baseball bat, stick, heavy flashlight or lamp and said they were going to hit you in the head with the object, the object could be considered a Dangerous Weapon.
ORS 164.205 defines a dwelling as a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present.
ORS 164.215 / ORS 164.225 define burglary as when a person unlawfully enters or remains in a building with the intent to commit a crime therein.
ORS 161.205 states you may use physical force upon another person:
- A person may use physical force upon another person in self-defense or in defending a third person, in defending property, in making an arrest or in preventing an escape. (partial citation)
ORS 161.219 states you may use deadly physical force:
- When a person is committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person.
- When a person is committing or attempting to commit a burglary in a dwelling.
- When a person is using or about to use unlawful deadly physical force against a person.
ORS 161.219 states you may use deadly force when a person is committing or attempting to commit a burglary in a dwelling. This is not wholly accurate. In Tennessee v. Garner, the United States Supreme Court held that you must also be able to articulate the following when using deadly force.
- You must feel that, more likely than not, the person poses a threat of causing serious physical harm to you or another.
- There must be an immediate danger to you or others.
- You must feel that, more likely than not, the person has committed a crime involving the use or threatened use of serious physical harm.
- If feasible, issue a verbal warning before using deadly force.
ORS 161.209 explains that a person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary to stop the threat.
For example, you are in a parking lot and see a man kicking another unconscious man in the head. You may use the amount of force necessary to stop the man from kicking the other in the head, including deadly force, but only if you feel further kicking may cause serious physical injury to or the death of the victim.
ORS 161.215 provides direction on when you are not justified to use physical force. You may not use force:
- With intent to cause physical injury or death to another person, the person provokes the use of unlawful physical force by that person; or
- The person is the initial aggressor, except that the use of physical force upon another person under such circumstances is justifiable if the person withdraws from the encounter and effectively communicates to the other person the intent to do so, but the latter nevertheless continues or threatens to continue the use of unlawful physical force; or
- The physical force involved is the product of a combat by agreement not specifically authorized by law.
Keep in mind, you should also be able to describe that the person who is a threat to you, by word or conduct,demonstrated their intent to cause you or another harm, the threat must have the means to carry out that threat and must also have theopportunity to cause you or another harm before you can use any amount of force on them.
ORS 161.229 speaks about the limitations of using force in defense of property. It states that you are justified in using physical force, other than deadly force, upon another person when you reasonably believe it is necessary to prevent or terminate the commission or attempted commission of theft or damage to property.
ORS 161.225 speaks of the limitations of using force in defense of premises. First you must be in lawful possession or control of the premise. If you are, you may use physical force to stop an individual from trespassing. It also states that you may use deadly physical force only under circumstances which apply to ORS 161.219 and when you reasonably believe the deadly force is necessary to prevent the commission of arson, a felony by force or violence by a trespasser.
Now let’s take all of this information and put it into scenarios many instructors hear throughout the State of Oregon.
You discover someone is in your house and they run outside of your house. We have heard students in handgun safety classes that state, “I am going shoot them and drag them back inside my house.”Shoot – If you only used the sole fact of the person being in your home as your decision to shoot the person who has fled your home, you likely do not have sufficient legal justification to use deadly force. Even though you may use force against a person if you believe that person is committing or attempting to commit a burglary of a dwelling, in order to use deadly force the facts must also indicate that the intruder intends to cause serious physical injury or death to you or another. Once the person has fled your home, there is likely not any further justification for the use of force or deadly force. Unless you can describe additional facts which showed the person was acting in a way to justify the use of deadly force under Oregon law, you likely are not legally justified in using deadly force against a person who has fled your home, and you may be exposed to criminal prosecution and civil liability.
Don’t Shoot – Is the best answer. You should also be able to describe that the person demonstrated their intent, means and opportunity to justify an independent basis under Oregon law (ORS 161.219/161.225) justifying your decision to use deadly force. In this scenario, you cannot only use the sole fact of the person being in your home, who then flees your house, as your decision to use deadly physical force.
It is in the middle of the night and from down their hallway the victim sees a person standing in their living room. Victim makes an announcement from their bedroom door, “I have called 911, and I have a gun, get out.” Suspect turns away and runs out the door with their TV.Shoot – The person did not display any intent, means and opportunityto justify an independent basis for the use of deadly force under Oregon law (ORS 161.219/161.225).You may be found criminally and/or civilly liable for your decision.
Don’t Shoot – Correct.The intruder did not display any intent, means and opportunity to cause any serious physical injury or death to you or anyone else.
Victim looks down hallway and sees a person standing in their living room with their TV. Victim makes announcement from bedroom door, “I have called 911, and I have a gun, get out.” Victim turns on the hall light. The suspect drops the TV, pulls a knife from his pocket and begins walking towards victim with a fixed stare.Shoot – Did the person by word or conduct have the intent to cause you serious physical injury or death?
- Yes. He demonstrated his intent by removing the knife from his pocket, dropping the TV and walking in your direction.
Did the person have the means to cause you serious physical injury or death?
- Yes. He had a knife.
Did the person have the opportunity?
- Yes. He was down the hallway, closing distance and there were no impenetrable obstacles between us.
Your actions will likely be found to be justified.
Don’t Shoot – Deciding whether to take another human being’s life is a personal choice, and choosing not to shoot is always an option. In this situation, it would appear that your personal safety is at serious risk, and you should clearly take some immediate action to protect yourself. Regardless of whether you would personally decide to shoot in this situation, let’s explore whether there are factors that might make shooting in this circumstance legally defensible.
Did the person by word or conduct have the intent to cause you serious physical injury or death?
- Yes. He demonstrated his intent by removing the knife from his pocket, dropping the TV and walking in your direction.
Did the person have the means to cause you serious physical injury or death?
- Yes. He had a knife.
Did the person have the opportunity?
- Yes. He was down the hallway, closing distance and there were no impenetrable obstacles between us.
Under these circumstances, there is a strong argument that the use of deadly force would be justified.
David cuts Sam off in traffic. David pulls into a nearby gas station and gets out of his vehicle to go inside. Sam quickly pulls up and begins yelling at David and aggressively approaches him. David defends himself as the two get into a fist fight. David begins to gain the advantage over Sam. Realizing he is losing the altercation, Sam draws his weapon and shoots David, killing him.Is Sam’s use of deadly force against David justified?Justified –Although David cut Sam off first, Sam was the initial aggressor in the altercation and the first one to use physical force. Sam provoked the fight with David. David was only using the amount of force necessary to defend himself from Sam. Sam’s use of deadly force would not likely be found justified.
Sam may be found criminally and/or civilly liable for his decision.
Not Justified – Correct. If you apply ORS 161.215 as we discussed earlier. Sam was the initial aggressor and provoked this event. David was only using the amount of force necessary to defend himself from Sam. Sam never clearly signaled his intent to withdraw from the altercation.
