Brandishing on your own property

[The Heretic]

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.

Yes, this goes way back several thousand years where the Bible (a lot of English common law is based on it) said it was okay to use lethal force without threat of violence from the invader if the home invasion happened after dark.

Exodus 22:2-3 2 "If the thief is found breaking in, and he is struck so that he dies, there shall be no guilt for his bloodshed. 3 "If the sun has risen on him, there shall be guilt for his bloodshed.

Note: not saying that the religious teachings should be the basis of law, just saying this for historical reasons.

In this day and age, with violent home invasions, it makes sense that lethal force laws would/should recognize the right of a home resident to defend their "castle". If it isn't explicit, then it is usually implicit either in the law or case law.

 

[fd15k]

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.

Have you noticed that 161.219 is linked to 161.209, and is in fact a limitation for 161.209 ? So let's look at 161.209.

161.209¹
Use of physical force in defense of a person

Except as provided in ORS 161.215 (Limitations on use of physical force in defense of a person) and 161.219 (Limitations on use of deadly physical force in defense of a person), 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]

So what does this mean ? It means that if there is no imminent deadly threat, you may not use deadly force period. On top of that, limitations of 161.219 apply. Since I am not a lawyer, there are two really good sources for information on the topic (besides an actual self-defense lawyer) : jury instructions and court rulings. It would be nice if somebody could dig into that.

 

[fd15k]

FD thinks police are there to serve and protect him.

I will give you the benefit of the doubt, and will say what I actually think about the police. Police are there to enforce the law.

 

[97321]

Fd: Respectfully, I believe you are in error in your reading of these provisions. "Notwithstanding ..." means that the provisions following are independant of, not linked to those referenced. It also indicates that where the two may be in conflict, the one does not obviate the effect of the other.
I am no lawyer, but this is my layman's opinion on how to interpret these passages.

 

[fd15k]

Fd: Respectfully, I believe you are in error in your reading of these provisions. "Notwithstanding ..." means that the provisions following are independant of, not linked to those referenced. It also indicates that where the two may be in conflict, the one does not obviate the effect of the other.
I am no lawyer, but this is my layman's opinion on how to interpret these passages.

That's fair.

 

[fd15k]

That's fair.

Here is a citation :

Even when one or more of threatening circumstances de*scribed in ORS 161.219 (Limitations on use of deadly physical force in defense of a person) is present, use of deadly force is justified only if it does not exceed de*gree of force which per*son reasonably believes to be necessary. State v. Haro, 117 Or App 147, 843 P2d 966 (1992), Sup Ct review denied

ORS 161.2091 and ORS 161.2192 refer to each other and must be read together. ORS 161.209 defines the circumstances under which physical force may be used and limits the amount of force that may be used, under any circumstances, to that "degree of force which the person reasonably believes to be necessary for the purpose." In other words, ORS 161.209 defines the so-called "necessity" requirement of Oregon's self-defense law. That requirement applies to all uses of physical force.

ORS 161.219 begins with the phrase, "Notwithstanding the provisions of ORS 161.209, a person is not justified in using deadly physical force upon another person unless * * *." That phrase explains that, although ORS 161.209 authorizes the use of physical force in certain circumstances, deadly force is never reasonable, in the absence of any of the additional threatening circumstances described in ORS 161.219. Nothing in the language of ORS 161.219 eliminates the general "necessity" requirement defined in ORS 161.209. Therefore, even when one or more of the threatening circumstances described in ORS 161.219 is present, the use of deadly force is justified only if it does not exceed the "degree of force which the person reasonably believes to be necessary" in the circumstances. See State v. Wright, 310 Or. 430, 435, 799 P.2d 642 (1990); Commentary to Proposed Criminal Code 23, § 23 (1970).

The legislature has not created an unlimited right to use deadly force against a burglar. The court properly instructed the jury on self-defense.

http://www.leagle.com/decision/19921809843P2d966_11765

 

[Rotty]

Have you noticed that 161.219 is linked to 161.209, and is in fact a limitation for 161.209 ? So let's look at 161.209.



So what does this mean ? It means that if there is no imminent deadly threat, you may not use deadly force period. On top of that, limitations of 161.219 apply. Since I am not a lawyer, there are two really good sources for information on the topic (besides an actual self-defense lawyer) : jury instructions and court rulings. It would be nice if somebody could dig into that.

I think your best bet for proper interpretation on of the law is to go talk to lawyer. Anyone can read and quote the law but interpreting it as it applies to a specific situation is a completely different matter. This armchair lawyer interpretation is only going to get someone in trouble. Armchair Lawyer's vs a Lawyer is like comparing an Amateur athlete to a Olympian athlete. Who do you think is going to win?

The situation and the individuals actions will all feed into the interpretation of he law and how it is applied. That is why lawyers go to school for years and years.

 

[41Slinger]

So what you're saying Salted Weapon, is that if the 30% you speak of had to have by law, a sign in their yard or wear a tag that said that the home or person was totally unarmed then we could reduce crime to the overall population by 70%. Wow what a great Idea.

 

[python287]

If the garage is attached it is considered part of the house !

 

[U201491]

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:

That sounds patentable to me

 

[fd15k]

I think your best bet for proper interpretation on of the law is to go talk to lawyer. Anyone can read and quote the law but interpreting it as it applies to a specific situation is a completely different matter. This armchair lawyer interpretation is only going to get someone in trouble. Armchair Lawyer's vs a Lawyer is like comparing an Amateur athlete to a Olympian athlete. Who do you think is going to win?

The situation and the individuals actions will all feed into the interpretation of he law and how it is applied. That is why lawyers go to school for years and years.

Apparently Jury Instructions can't be accessed online (Welcome to the Oregon State Bar Online), so you have a chance, for the good of other forum members, to do what real lawyers (who went to school for years) do - go to the library and photocopy the section on self-defense

 

[Stomper]

I will give you the benefit of the doubt, and will say what I actually think about the police. Police are there to enforce the law.

Even the laws that said blacks must sit at the back of the bus, drink from separate water fountains, eat at seperate lunch counters, use separate toilets, attend separate schools, forbidden to marry a white spouse?

Do you include those kinds of laws, when they were laws?


Laws may come and go, but human/civil rights are eternal. 2A rights ARE civil rights, too.

 

[Stomper]

Also, what say you about how those in the Executive branches of the Federal, State, and Local governments selectively (aka outright refusing) enforcing the laws that are on the books, ranging from the (un)Affordable Health Care Act deadlines, to immigration laws, to "hate crimes" assignment?

 

[Stomper]

Ahhhh... That all too familiar sound of crickets.

 

[mjbskwim]

FD has been on my ignore list for about a year ,so I can't comment on that village idiot

The main thing is to keep ones self safe. If you play it right,there can always be a deadly threat.
Remember all he hings in your home you would not want o be hit with. Just normal house hold things
You never know the level of training of the person entering your home.Te amount of drugs in his system,the state of mind he is in.
how many people has he killed? War or here at home

Do you know? Does your lawyer know?
hese are the things to keep in mind when you do have to use lethal response to a threat

 

[fd15k]

Ahhhh... That all too familiar sound of crickets.

I was away from the computer all day, but if you want to play that game, I am still waiting for that citation on use of deadly force. And I mean interpreted by a recognized authority so that lame folk like myself, Rotty and 97321 can understand. Any 5 year old can copy/paste ORS these days.

While I'm not quite sure how we moved to the role of the police in this thread, I will say that it is not within the role of the police to decide what laws are good and bad. Existence of the laws you mentioned are on the consciousness of the legislatures and courts at the time of their existence. In fact I wouldn't be surprised if police was involved in chasing escaped slaves and similar stuff a century earlier.
Today police are provided with Qualified Immunity, so that they do their job without fear of persecution. Unjust laws, just like before, are to be dealt with through courts (including jury nullification) and legislatures. Police should not be in business of interpreting the laws. Now a thing to remember, is that unlike the Military, law enforcement personnel is not going to be tried for refusal to obey orders. Any officer can refuse to enforce a law, refuse to obey an order, risking to be terminated with loss of benefits. No criminal penalties though. Another thing to remember, is that many departments these days employ discretionary enforcement (whether good or bad), especially for the minor offenses. And since a police department is an employer like any other, they can require their employees to do whatever, including to "protect and serve".

Flame on!

 

[Stomper]

No one is flaming you. The role of the police came up because you said their job is to enforce the law (BTW- you avoided the Executive branch question altogether), and in another thread about the gun registrations in CT you were questioning (to the effect) how another FWFA member can claim to be a law abiding member if he refused to be in compliance with a gun registration law should one be enacted here in he PNW.

What else you don't (won't) comply with ? How about National Firearms Act of 1934 ?

It's called picking you battles, when to fight or not. Free adults do it all the time. I understand your point but I have personally made a choice and plan to stick with my decision. I am a law abiding citizen of the USA and this is the point where I've decided I'm not going to put up with this s--t anymore. It's very simple.

I don't understand how is this very simple : you are a law abiding citizen, but you won't comply with the law. How do you articulate this ? Perhaps I'm missing some simple truth for real.

We are suppose to comply with the law when the left just rewrites the law illegally and unconstitutionally? Glad our founders did not think that way. Otherwise you would be sipping tea and driving on the wrong side of the road. Which you still can do if you want to move.

Hence my question to you about the racist laws that had one time been in effect. Would you have turned in escaped slaves if required by law? Would you have kept yourself segregated by law? Were the civil rights demonstrations done without "permits" invalid because they broke the law by not getting a permit to march? Would you have turned in hiding Jews during WWII Germany if required by law?

These are very real things that have happened, and may yet again happen within our lifetimes in one flavor or another. Where do you stand when "the law" becomes lawless? Will you be one of those who in the end says, "I was was just following orders"? It was after all, the "consciousness of the legislature", right?

That defense didn't work out so well for a few Teutonic schmucks @ the Nuremberg Trials... So it is established case law that people do indeed have a duty to not obey the law or "orders" when those laws or "orders" are in fact illegal. "The Law" is NOT sacrosanct.

As for "interpreting" the pertinent ORS, it's written in plain English. Obviously I'm literate (and articulate), and it seems quite clear to me what it says right there in black and white.

Concerning the comment that any 5-yr old being able to copy and paste the ORS... It's a damned sight more than what the 5-yr olds currently running the government are inclined or able to do.

The thing I've noticed about you, FD, is that no matter what citation is given it's never of sufficient "authority" for you and it's constantly a "ring around the rosie" debate and endless argument... Kinda like parsing over "what the definition of 'is', is", and only respecting "pedigrees" from the diploma mills run by passive-aggressive, pinchy-faced schmucks who have the personalities of soggy cardboard, and couldn't function in the "real world" with us working peons.

Come to think of it, you are generally calm and stay on (whatever) point within your posts, but the "any 5-yr old" comment you made was rather snarky... You got irritated and lost your composure.

I win.

 

[U201491]

No one is flaming you. The role of the police came up because you said their job is to enforce the law (BTW- you avoided the Executive branch question altogether), and in another thread about the gun registrations in CT you were questioning (to the effect) how another FWFA member can claim to be a law abiding member if he refused to be in compliance with a gun registration law should one be enacted here in he PNW.









Hence my question to you about the racist laws that had one time been in effect. Would you have turned in escaped slaves if required by law? Would you have kept yourself segregated by law? Were the civil rights demonstrations done without "permits" invalid because they broke the law by not getting a permit to march? Would you have turned in hiding Jews during WWII Germany if required by law?

These are very real things that have happened, and may yet again happen within our lifetimes in one flavor or another. Where do you stand when "the law" becomes lawless? Will you be one of those who in the end says, "I was was just following orders"? It was after all, the "consciousness of the legislature", right?

That defense didn't work out so well for a few Teutonic schmucks @ the Nuremberg Trials... So it is established case law that people do indeed have a duty to not obey the law or "orders" when those laws or "orders" are in fact illegal. "The Law" is NOT sacrosanct.

As for "interpreting" the pertinent ORS, it's written in plain English. Obviously I'm literate (and articulate), and it seems quite clear to me what it says right there in black and white.

Concerning the comment that any 5-yr old being able to copy and paste the ORS... It's a damned sight more than what the 5-yr olds currently running the government are inclined or able to do.

The thing I've noticed about you, FD, is that no matter what citation is given it's never of sufficient "authority" for you and it's constantly a "ring around the rosie" debate and endless argument... Kinda like parsing over "what the definition of 'is', is", and only respecting "pedigrees" from the diploma mills run by passive-aggressive, pinchy-faced schmucks who have the personalities of soggy cardboard, and couldn't function in the "real world" with us working peons.

Come to think of it, you are generally calm and stay on (whatever) point within your posts, but the "any 5-yr old" comment you made was rather snarky... You got irritated and lost your composure.

I win.

Yep blue ribbon.
I will add any law that infringes on the 2nd Amendment will be and is an unlawful law. !!!!!!!!!

 

[fd15k]

No one is flaming you.

Let me start by rehashing what happened in this thread. You made a potentially inaccurate and dangerous statement for which I have requested a citation. That implied that
you are either potentially wrong, OR I am uninformed and this could be an opportunity for me to learn something new. You only cited ORS, which resulted in the interpretation
pissing match with multiple members including yourself, with me being the "wrong" minority. I then found a citation (interpretation) from nothing less but a court of appeals
for the state of Oregon, supporting my position. The rest was just from my academic interest on the subject.

BTW- you avoided the Executive branch question altogether

I didn't avoid it, I skipped it, as it's not very interesting to me. I will re-read what you inquired about it, and will try to answer a bit later.

and in another thread about the gun registrations in CT you were questioning (to the effect) how another FWFA member can claim to be a law abiding member if he refused to be in compliance with a gun registration law should one be enacted here in he PNW.

That was indeed in another thread, and I ended the conversation there for a reason.

Hence my question to you about the racist laws that had one time been in effect. Would you have turned in escaped slaves if required by law? Would you have kept yourself segregated by law? Were the civil rights demonstrations done without "permits" invalid because they broke the law by not getting a permit to march? Would you have turned in hiding Jews during WWII Germany if required by law?

These are very real things that have happened, and may yet again happen within our lifetimes in one flavor or another. Where do you stand when "the law" becomes lawless? Will you be one of those who in the end says, "I was was just following orders"? It was after all, the "consciousness of the legislature", right?


That defense didn't work out so well for a few Teutonic schmucks @ the Nuremberg Trials... So it is established case law that people do indeed have a duty to not obey the law or "orders" when those laws or "orders" are in fact illegal. "The Law" is NOT sacrosanct.

Apparently you are actually interested in the act of Civil Disobedience (or rather my position on it). I will not go into debating on topic of Nazis and other stuff you brought up - it will take me all day
breaking it all apart and I have to work for living (yes, I am not a welfare recipient).

Civil disobedience is simply a PR act. It does not invalidate any laws by itself, but rather aims at public outcry and impact on legislature (and courts to a lesser extent). For CD to be effective, the
issues raised must be supported by significant amount of population. CD comes with a risk of not having the support to strike down the laws and being prosecuted for their violations.
Since it is a PR method, there is no point in disobeying the law while in the closet. It only turns one into a criminal and does not achieve anything.

Citizens of the United States (with a few exceptions) have ability to participate in the democratic process through variety of methods, and they should utilize those methods
whenever they feel they are misrepresented, whenever they feel certain laws are not in their interest. Civil Disobedience is the method of last resort, and due to its risks it should
be avoided as much as possible.

 

[fd15k]

As for "interpreting" the pertinent ORS, it's written in plain English. Obviously I'm literate (and articulate), and it seems quite clear to me what it says right there in black and white.

Many are written in plain English and are simple to understand. Many can be taken based on the preferences of the reader, and additional sources of information might be required. This
thread is a good example of such situation.

Concerning the comment that any 5-yr old being able to copy and paste the ORS... It's a damned sight more than what the 5-yr olds currently running the government are inclined or able to do.

The thing I've noticed about you, FD, is that no matter what citation is given it's never of sufficient "authority" for you and it's constantly a "ring around the rosie" debate and endless argument... Kinda like parsing over "what the definition of 'is', is", and only respecting "pedigrees" from the diploma mills run by passive-aggressive, pinchy-faced schmucks who have the personalities of soggy cardboard, and couldn't function in the "real world" with us working peons.

Come to think of it, you are generally calm and stay on (whatever) point within your posts, but the "any 5-yr old" comment you made was rather snarky... You got irritated and lost your composure.

I win.

"Snarky" comment was in response to your crickets. And yes, I accept your moral superiority.