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Brandishing on your own property

Discussion in 'Legal & Political Archive' started by thereddog, Dec 26, 2013.

  1. thereddog

    thereddog State of Jefferson Active Member

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    Let's pretend someone comes onto your property... Like in that Old Clint Eastwood movie.... (Every Which way but loose)... etc.


    Would it legally be considered "brandishing" if Grandma pulled out her old 12 ga and told the trespassers to leave?


    What about if Grandma was renting a business space as a tenant and had some folks that she didn't want in there give her trouble.

    If she told em they were trespassing, and they didn't split,
    would she be "brandishing"

    if she brought out the scattergun to entice the trespassers to move along?


    I am not certain what the legal stance is re: brandishing on your owned and/or leased property.


    Anyone know the deal?

    Please advise and Happy 2014.
     
  2. simon99

    simon99 Central Oregon Well-Known Member

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    I think if you felt that your life is in imminent danger you are covered...
     
  3. Darknight

    Darknight Salem Active Member

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    If you were leasing a house and someone broke in, would you call the landlord or leasing agent to hurry over to protect you and your family? For all intensive purposes when you lease or rent property in Oregon, it is yours and you are in control of it.

    You are only allowed to use the amount of reasonable and justifiable force to stop a person from committing a crime in your presence; even if the crime is against you. Then of course you can use th least amount of reasonable and jusifiable force to effect an arrest on the individual since a crime was committed in your presence.

    The scenarios you give have a grandmother playing the victim; so taking into account that she might be old and unable to physically defend herself without using a weapon of some sort, depending on the circumstances, yes she would be okay using a shotgun to get the tresspassers to leave. But, she would have to be in immediate fear of serious physical injury or death in order to escelate to deadly force.

    So now let's say you are a young strapping ladd and can take care of yourself and you have a firearm on your person; and the individual(s) do not have any weapons in sight and will not leave your property, now what?

    The two scenarios you mentioned have grandma inside in one and what I can only assume would be outside in the other. Inside or outside, weapons or no weapons and acting in a way that makes you feel in fear, all have to be taken into account. Remember, grandma can be charged if a judge and jury feel she has acted unjustifiably.

    Other things that need to be taken into consideration(not all inclusive and in no particular order)

    Location ( is this in a rural area where lawenforcement response is non-existant or a long ways off, crowded place, next to a school that just let out, etc...)

    what time of day is it (night time/ day time)

    How many are there ( are you grossly out numbered)

    Did they break in or is this a place of business open to the public and they just refuse to leave.


    The point is that there is a lot to be taken into consideration before using a firearm against another human being. You may only have seconds to make the decision and a lifetime to live with it.
     
  4. ocarolan

    ocarolan Portland, Oregon Well-Known Member

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    Oregon has no law against brandishing. Instead we prohibit menacing (ORS 163.190) and "carrying with intent to use" (ORS 166.220). Those laws have no exception for property owners.

    Threatening to shoot a trespasser could qualify as menacing. However, to me simply carrying a gun (while confronting a trespasser) would not qualify. To be safe, I'd avoid:

    - pointing the gun
    - firing a warning shot
    - issuing an ultimatum
    - charging or loading threateningly

    Of course, if the situation met the deadly force criteria (ORS 161.219/209), menacing would not apply.


    Notwithstanding the provisions of ORS 161.209 (Use of physical force in defense of a person), a person is not justified in using deadly physical force upon another person unless the person reasonably believes that the other person is:

    1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or
    (2) Committing or attempting to commit a burglary in a dwelling; or
    (3) Using or about to use unlawful deadly physical force against a person.


    A typical trespasser may not meet those criteria.


    A person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.
     
  5. U201491

    U201491 Well-Known Member

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    :thumbup::thumbup::thumbup::thumbup::thumbup:
     
  6. The Heretic

    The Heretic Oregon Well-Known Member

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    Back when I was in the USCG (30+ years ago) the local city (Newport, OR) LEOs/DA were considering charging a Petty Officer (in the USCG, POs are LEOs themselves) with "brandishing" - or at least that is what he said.

    A teenager was hassling a girl, and the off-duty PO stepped in to ask him to cease, when it looked like it would escalate, the PO handed his personal firearm (carried concealed) to another coastie so that it would not be thrown loose in an ensuing fight. The teenager took that as a threat and called the city police (or maybe it was county - I forget back then if they had city cops, I think they did).

    This was on "public" property.

    Eventually, IIRC, the whole thing was dropped.

    On your own property in Oregon you can carry concealed without a permit and of course you can open carry (although I would not recommend that latter in an urban area outside your home). If you are outside a no-shoot area you can target shoot if you are doing it safely.

    In the above described scenario I doubt brandishing (or menacing, or whatever) would become an issue, unless the property resident went around wildly pointing a gun at anybody and everybody.

    IIRC, the time to display a firearm is *after* you have asked some politely to leave and they refused. At that point it is time to make them aware you are armed and to call the local LEOs, but do not point the gun at them if/until they are menacing you.

    In most locales lethal force laws, etc., follow lines of common sense; you do not point guns at people unless they are threatening you with harm - you can't shoot someone just because they are stealing something (the thing to do *IF* you *really* are inclined to protect your property with lethal force is to get between the thief and the property they are trying to take/vandalize/etc., and then when they come forward you have a plausible defense to say that they threatened you - but shooting at or near someone for trying to steal your hubcaps is not allowed), and the moment they cease to be a threat, you must cease using possible lethal force (e.g., if they are running away, you can't shoot at them unless they are threatening someone else).

    These things a firearms owner who intends to use a firearm in self-defense should understand the points at which they can and cannot use lethal force. They should take a *good* lethal force class, and if they are still unsure, they should consult an attorney who is experienced with lethal force laws in their locale.
     
  7. Sstrand

    Sstrand La Grande OR Well-Known Member

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    The key here, after the confrontation, is to be the first one to phone the coppers . . .

    Sheldon
     
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  8. Koda

    Koda Oregon Bronze Supporter Bronze Supporter 2016 Volunteer

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    I was going to say it but ocarolan beat me to it.

    in my own anecdotal understanding another way to look at it is a trespasser, while still guilty of trespassing, would be lawfully justified in using deadly force to protect himself from a homeowner putting him in jeopardy of life by threatening him with a firearm! This would mean that if the landowner won the fight they could be prosecuted for murder. Its never ok to use or threaten force to defend property.
     
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  9. Stomper

    Stomper Oceania Rising White Is The New Brown Silver Supporter

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    Except that deadly force is justified if a perpetrator is in the act of breaking into a residence, so keep a cot and fridge in your garage. ;)
     
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  10. fd15k

    fd15k Tigard,OR Well-Known Member

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    Citation ?
     
  11. chariot13

    chariot13 Near Eugene/Springfield Well-Known Member

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    Don't worry about answering to fd15k, he's one of our 6 resident socialist's. Every website should have some diversity.
     
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  12. Stomper

    Stomper Oceania Rising White Is The New Brown Silver Supporter

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    I should do you the favor of getting the satisfaction of finding the answer for yourself on this, but it's in the ORS.

    CITATION:

    161.219 Limitations on use of deadly physical force in defense of a person

    Notwithstanding the provisions of ORS 161.209, a person is not justified in using deadly physical force upon another person unless the person reasonably believes that the other person is:
    (1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or
    (2) Committing or attempting to commit a burglary in a dwelling; or
    (3) Using or about to use unlawful deadly physical force against a person. [1971 c.743 §23]


    Notice it says "burglary" and not "robbery" (which involves the use of a weapon). Burglary involves breaking into something, attempted burglary implies attempting to break into something and in this case a dwelling. Burglary can be committed with or without a weapon. Regardless, deadly force is justified when concerning a dwelling.



    I'm all too familiar with FD's methods. ;)
     
  13. fd15k

    fd15k Tigard,OR Well-Known Member

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    Thanks for putting up an effort, but note that this is not an "authorization" for use of deadly force, but rather a limitation. The way I see it (and you can correct me
    with a better citation) deadly force can be used if one of the listed conditions is present AND something else (such as person is in fear for their life).
     
  14. oli700

    oli700 Rogue Valley Well-Known Member

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    in that case he was afraid too
     
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  15. 41Slinger

    41Slinger Harrisburg Oregon Bronze Supporter Bronze Supporter

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    If they're coming in then I'm afraid, very afraid and that should make them also very very afraid. :)
     
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  16. 97321

    97321 Albany Active Member

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    Fd, I disagree with your interpretation. The law is written with "or" as a separator. This is a careful and conscious distinction. I see no inclusion of "and" anywhere in relation to the exclusions from the previously identified restrictions upon the use of deadly force.
     
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  17. MarkAd

    MarkAd Port Orchard Well-Known Member

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    FD thinks police are there to serve and protect him.
     
  18. Stomper

    Stomper Oceania Rising White Is The New Brown Silver Supporter

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    In the case of of using deadly force during a burglary or (attempted burglary) of a DWELLING there doesn't appear to be a qualifier that fear of death or physical harm is required.

    Furthermore, I believe it is established case law that anyone who burglarizes, or attempts to burglarize a DWELLING knows full well there is a high probability they will encounter/confront a dwelling occupant and is prepared to, and/or intends to inflict physical harm and/or death upon said occupant.

    However, there IS a difference in use of force regarding "premises", that's why I made my flippant remark about keeping a cot and fridge in your (detached) garage (to make it a "residence"). Here are the relevant ORS below for your reading pleasure.


    Oregon Self Defense Laws

    161.190 Justification as a defense

    In any prosecution for an offense, justification, as defined in ORS 161.195 to 161.275, is a defense. [1971 c.743 §18]

    161.195 “Justification” described.

    (1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is required or authorized by law or by a judicial decree or is performed by a public servant in the reasonable exercise of official powers, duties or functions.
    (2) As used in subsection (1) of this section, “laws and judicial decrees” include but are not limited to: (a) Laws defining duties and functions of public servants;
    (b) Laws defining duties of private citizens to assist public servants in the performance of certain of their functions;
    (c) Laws governing the execution of legal process;
    (d) Laws governing the military services and conduct of war; and
    (e) Judgments and orders of courts. [1971 c.743 §19]
    Note: See note under 161.015.

    161.200 Choice of evils

    (1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when:
    (a) That conduct is necessary as an emergency measure to avoid an imminent public or private injury; and
    (b) The threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.
    (2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. [1971 c.743 §20]
    161.205 Use of physical force generally

    The use of physical force upon another person that would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:
    (1) A parent, guardian or other person entrusted with the care and supervision of a minor or an incompetent person may use reasonable physical force upon such minor or incompetent person when and to the extent the person reasonably believes it necessary to maintain discipline or to promote the welfare of the minor or incompetent person. A teacher may use reasonable physical force upon a student when and to the extent the teacher reasonably believes it necessary to maintain order in the school or classroom or at a school activity or event, whether or not it is held on school property.
    (2) An authorized official of a jail, prison or correctional facility may use physical force when and to the extent that the official reasonably believes it necessary to maintain order and discipline or as is authorized by law.
    (3) A person responsible for the maintenance of order in a common carrier of passengers, or a person acting under the direction of the person, may use physical force when and to the extent that the person reasonably believes it necessary to maintain order, but the person may use deadly physical force only when the person reasonably believes it necessary to prevent death or serious physical injury.
    (4) A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical self-injury may use physical force upon that person to the extent that the person reasonably believes it necessary to thwart the result.
    (5) 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, as hereafter prescribed in chapter 743, Oregon Laws 1971. [1971 c.743 §21; 1981 c.246 §1]

    161.209 Use of physical force in defense of a person

    Except as provided in ORS 161.215 and 161.219, 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 for the purpose. [1971 c.743 §22]

    161.215 Limitations on use of physical force in defense of a person

    Notwithstanding ORS 161.209, a person is not justified in using physical force upon another person if:
    (1) With intent to cause physical injury or death to another person, the person provokes the use of unlawful physical force by that person; or
    (2) 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 (3) The physical force involved is the product of a combat by agreement not specifically authorized by law. [1971 c.743 §24]

    161.219 Limitations on use of deadly physical force in defense of a person

    Notwithstanding the provisions of ORS 161.209, a person is not justified in using deadly physical force upon another person unless the person reasonably believes that the other person is:
    (1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or
    (2) Committing or attempting to commit a burglary in a dwelling; or
    (3) Using or about to use unlawful deadly physical force against a person. [1971 c.743 §23]

    161.225 Use of physical force in defense of premises

    (1) A person in lawful possession or control of premises is justified in using physical force upon another person when and to the extent that the person reasonably believes it necessary to prevent or terminate what the person reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon the premises.
    (2) A person may use deadly physical force under the circumstances set forth in subsection (1) of this section only:
    (a) In defense of a person as provided in ORS 161.219; or
    (b) When the person reasonably believes it necessary to prevent the commission of arson or a felony by force and violence by the trespasser.
    (3) As used in subsection (1) and subsection (2)(a) of this section, “premises” includes any building as defined in ORS 164.205 and any real property. As used in subsection (2)(b) of this section, “premises” includes any building. [1971 c.743 §25]

    161.229 Use of physical force in defense of property

    A person is justified in using physical force, other than deadly physical force, upon another person when and to the extent that the person reasonably believes it to be necessary to prevent or terminate the commission or attempted commission by the other person of theft or criminal mischief of property. [1971 c.743 §26]

    161.235 Use of physical force in making an arrest or in preventing an escape

    Except as provided in ORS 161.239, a peace officer is justified in using physical force upon another person only when and to the extent that the peace officer reasonably believes it necessary:
    (1) To make an arrest or to prevent the escape from custody of an arrested person unless the peace officer knows that the arrest is unlawful; or
    (2) For self-defense or to defend a third person from what the peace officer reasonably believes to be the use or imminent use of physical force while making or attempting to make an arrest or while preventing or attempting to prevent an escape. [1971 c.743 §27]

    161.239 Use of deadly physical force in making an arrest or in preventing an escape

    (1) Notwithstanding the provisions of ORS 161.235, a peace officer may use deadly physical force only when the peace officer reasonably believes that:
    (a) The crime committed by the person was a felony or an attempt to commit a felony involving the use or threatened imminent use of physical force against a person; or
    (b) The crime committed by the person was kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such a crime; or
    (c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the peace officer or another person from the use or threatened imminent use of deadly physical force; or
    (d) The crime committed by the person was a felony or an attempt to commit a felony and under the totality of the circumstances existing at the time and place, the use of such force is necessary; or
    (e) The officer’s life or personal safety is endangered in the particular circumstances involved.
    (2) Nothing in subsection (1) of this section constitutes justification for reckless or criminally negligent conduct by a peace officer amounting to an offense against or with respect to innocent persons whom the peace officer is not seeking to arrest or retain in custody. [1971 c.743 §28]

    161.245 “Reasonable belief” described; status of unlawful arrest

    (1) For the purposes of ORS 161.235 and 161.239, a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which if true would in law constitute an offense. If the believed facts or circumstances would not in law constitute an offense, an erroneous though not unreasonable belief that the law is otherwise does not render justifiable the use of force to make an arrest or to prevent an escape from custody.
    (2) A peace officer who is making an arrest is justified in using the physical force prescribed in ORS 161.235 and 161.239 unless the arrest is unlawful and is known by the officer to be unlawful. [1971 c.743 §29]

    161.249 Use of physical force by private person assisting an arrest

    (1) Except as provided in subsection (2) of this section, a person who has been directed by a peace officer to assist the peace officer to make an arrest or to prevent an escape from custody is justified in using physical force when and to the extent that the person reasonably believes that force to be necessary to carry out the peace officer’s direction.
    (2) A person who has been directed to assist a peace officer under circumstances specified in subsection (1) of this section may use deadly physical force to make an arrest or to prevent an escape only when:
    (a) The person reasonably believes that force to be necessary for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of deadly physical force; or
    (b) The person is directed or authorized by the peace officer to use deadly physical force unless the person knows that the peace officer is not authorized to use deadly physical force under the circumstances. [1971 c.743 §30]

    161.255 Use of physical force by private person making citizen’s arrest

    (1) Except as provided in subsection (2) of this section, a private person acting on the person’s own account is justified in using physical force upon another person when and to the extent that the person reasonably believes it necessary to make an arrest or to prevent the escape from custody of an arrested person whom the person has arrested under ORS 133.225.
    (2) A private person acting under the circumstances prescribed in subsection (1) of this section is justified in using deadly physical force only when the person reasonably believes it necessary for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of deadly physical force. [1971 c.743 §31; 1973 c.836 §339]

    161.260 Use of physical force in resisting arrest prohibited

    A person may not use physical force to resist an arrest by a peace officer who is known or reasonably appears to be a peace officer, whether the arrest is lawful or unlawful. [1971 c.743 §32]

    161.265 Use of physical force to prevent escape

    (1) A guard or other peace officer employed in a correctional facility, as that term is defined in ORS 162.135, is justified in using physical force, including deadly physical force, when and to the extent that the guard or peace officer reasonably believes it necessary to prevent the escape of a prisoner from a correctional facility.
    (2) Notwithstanding subsection (1) of this section, a guard or other peace officer employed by the Department of Corrections may not use deadly physical force in the circumstances described in ORS 161.267 (3). [1971 c.743 §33; 2005 c.431 §3]
     
  19. freestoneangler

    freestoneangler wa Well-Known Member

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    I've added a small pitch fork to the working end of my Mossberg 500... you know, for picking up trash out in front of the house.:yes:
     
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  20. 97321

    97321 Albany Active Member

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    Then I happen to agree with him. I just still can't fit one in my back pocket.
     
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