Gresham Police Chief on Recent Vigilante

[Cougfan2]

left a out the fact that law enforcement is NOT responsible to you for your safety per SCOTUS. And I have a fear of being assaulted or robbed, which nothing but my being able to defend myself (as I have had to do once) can change.

Deen
NRA Benefactor/Recruiter
WAC member
SWWAC member

Great point. I am sure you said that in your letter to him. Please post it and the Cheif's reply when you receive it.

 

[el gringo loco]

161.249¹
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]

161.219¹
Limitations on use of deadly physical force in defense of a person
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. [1971 c.743 §23]

Even when one or more of threatening circumstances de*scribed in this statute is present, use of deadly force is justified only if it does not exceed "degree of force which per son reasonably believes to be necessary" under ORS 161.209 (Use of physical force in defense of a person). State v. Haro, 117 Or App 147, 843 P2d 966 (1992), Sup Ct review denied

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]

Sorry Trlsmn, but the Chief's characterization:

Lethal force may be used only when people's lives are endangered, not when property is at risk of being taken

was about as accurate as you could get when summing up several statutes and case law in a single sentence. The fact is that Oregon law DOES NOT allow for the use of deadly force in the defense of property alone. It does allow for deadly force in defense of a dwelling, but only when it is reasonably necessary to prevent serious physical injury or death. In other words, if you believe that the person breaking in is going to grab your TV and leave and poses no threat to you, you cannot legally shoot the person. I would argue that the risk of serious physical injury would place a life in danger and is consistent with the chief's characterization.

This guy exemplifies why all CHL holders should go far beyond the required CHL course and take the time to learn the relevant statutes and case law that govern what their response to a given situation should be.

 

[wired]

People who don't want to get shot at shouldn't steal things.

 

[ZachS]

Sorry Trlsmn, but the Chief's characterization:
was about as accurate as you could get when summing up several statutes and case law in a single sentence. The fact is that Oregon law DOES NOT allow for the use of deadly force in the defense of property alone. It does allow for deadly force in defense of a dwelling, but only when it is reasonably necessary to prevent serious physical injury or death. In other words, if you believe that the person breaking in is going to grab your TV and leave and poses no threat to you, you cannot legally shoot the person. I would argue that the risk of serious physical injury would place a life in danger and is consistent with the chief's characterization.

Sure, but if somebody breaks into your house to commit a felony, it's likely reasonable to believe they threaten your life - unless they're running out the door, or surrendering, etc. At the end of the day, these are all standards, not bright-line rules. The best bet would be to take a CHL class or participate in some other type of Q & A session with a lawyer who has handled multiple use-of-force and self-defense cases.

 

[Trlsmn]

Sorry Trlsmn, but the Chief's characterization:
was about as accurate as you could get when summing up several statutes and case law in a single sentence. The fact is that Oregon law DOES NOT allow for the use of deadly force in the defense of property alone. It does allow for deadly force in defense of a dwelling, but only when it is reasonably necessary to prevent serious physical injury or death. In other words, if you believe that the person breaking in is going to grab your TV and leave and poses no threat to you, you cannot legally shoot the person. I would argue that the risk of serious physical injury would place a life in danger and is consistent with the chief's characterization.

This guy exemplifies why all CHL holders should go far beyond the required CHL course and take the time to learn the relevant statutes and case law that govern what their response to a given situation should be.

The law is clear and I stand by my statement that there are holes in his statement that physical injury or prevention of such is the only criteria for use of deadly force. The law is what matters, not some of the law, or a little of the law, or most of the law, in court it is only the law.

If you are so smart why don't you spend your time finding the exceptions that I did.

 

[el gringo loco]

The law is clear and I stand by my statement that there are holes in his statement that physical injury or prevention of such is the only criteria for use of deadly force. The law is what matters, not some of the law, or a little of the law, or most of the law, in court it is only the law.

If you are so smart why don't you spend your time finding the exceptions that I did.

My point was that there is absolutely no provision in the law for use of deadly force without some sort of serious threat to a person. Even the the statuatory provisions that allow for use of deadly force for burglary I or felonies carry with them a legal obligation for there to also have a reasonable belief that the use of deadly force would be necessary to protect a person. I stand by my statements. Case law is just as binding as statuatory law.

My other point was that every CHL holder carries on their person the potential for huge liability and should take the time to limit that liability. I have carried for about 12 years. I look back on my beliefs/reasoning/ and understanding of the law in those first years and thank God that I never was put in a position to make some of those choices before I learned a lot more about the law. My point about a burglary was simply to illustrate that a easily justified shooting with the wrong justification or a few misguided statements becomes criminal quickly. Another reason for those who may use deadly force to know the law, what to say, and to retain a lawyer before talking too much after a deadly force incident.

 

[Cougfan2]

Got a reply from Gresham Police Chief Junginger. Below is my original e-mail to him and below that his reply. I must say I am impressed. No form letter. He took the time to personally reply.

My letter to Chief Junginger.

Dear Chief Junginger,

I read with interest your article on the recent incident with Mr. Witters regarding his shooting at the suspects fleeing the AT&T store. Based on your article it appears you have been getting some criticism from some for arresting Mr. Witters and condemning his actions.

I have been a CHL holder in Oregon for many years and am also active in the pro 2nd Amendment and CHL communities in Oregon. I can assure you that the great majority of CHL holders and pro 2nd Amendment members of the firearms community in Oregon and the rest of the Pacific Northwest believe that Mr. Witters' actions in this case were totally inappropriate.

It is never appropriate to display a firearm, let alone discharge it, if you or immediate bystanders are in no immediate danger of grave bodily harm or death. Shooting at two fleeing suspects that posed not immediate threat to anyone and endangering innocent bystanders over the theft of a couple of cell phones......please!

Mr. Witters actions were not representative of CHL holders as a whole. I would like to thank you for writing reasoned and balanced article about this incident without tarring all CHL holders with Mr. Witters inappropriate actions.

Best Regards,

XXXXXXXXX
Hillsboro, OR

Steve, thanks for the kind words and the support. I know the majority of gun owners who have permits to carry them are conscientious and responsible citizens. However, you know that the poor decision by one person can cause people to stereotype everyone the same. Believe me, I know about that being in law enforcement for 32 years. Again, thanks for taking the time to send me an e-mail. It is much appreciated.



Craig Junginger

Chief of Police

Gresham Police Department

1333 N.W. Eastman Parkway

Gresham, OR 97030

503-618-2313

"In the Company of Heroes"

 

[Hawaiian]

Thanks for posting that. I think his reply was very good.

 

[Trlsmn]

My point was that there is absolutely no provision in the law for use of deadly force without some sort of serious threat to a person.

Again I am making the statement that you are wrong about that. Go back and reread it and see if you can find it, I did.

 

[CEF1959]

Again I am making the statement that you are wrong about that. Go back and reread it and see if you can find it, I did.

Trlsmn is correct. And I agree with him that people carrying firearms for protection of themselves, others, or property, really need to review the statutes regarding the use of force by private citizens. Case law is also relevant, but there's not a lot of it on this issue in Oregon. Other than in self-defense, the issues just don't come up all that often in reported opinions.

 

[2zuks]

Again I am making the statement that you are wrong about that. Go back and reread it and see if you can find it, I did.

I remember in one of my handgun classes the instructor did point out that a defence to shooting someone could be them committing certain felonies. I can't remember the specifics, but there are certain exceptions to the immediate harm thing.

 

[el gringo loco]

Again I am making the statement that you are wrong about that. Go back and reread it and see if you can find it, I did.

I have reviewed the relevant statutes and case law in an attempt to find some portion of the law that I was not previously aware of that would allow for the use of deadly force without a reasonable belief that such force was necessary to defend a person. Please enlighten me as to the exception you believe that you have found. I have included relevant statutes and case law below.

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]

The above statute provides for defense of a person and introduces the reasonableness standard into the equation

161.219¹
Limitations on use of deadly physical force in defense of a person
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. [1971 c.743 §23]

The provisions in this statute provide for two situations in which deadly physical force can be used other than to specifically to protect a person. HOWEVER, State v. Haro (below)

Even when one or more of threatening circumstances de*scribed in this statute is present, use of deadly force is justified only if it does not exceed "degree of force which person reasonably believes to be necessary" under ORS 161.209 (Use of physical force in defense of a person). State v. Haro, 117 Or App 147, 843 P2d 966 (1992), Sup Ct review denied

applies the reasonableness standard from ORS 161.209 AND and the threat to person component to the deadly force standards by stating that the requirements of the statute ALONE are not a sole basis for the use of deadly force.

So, at this point, the law only provides for use of deadly force in order to:
1. Prevent deadly physical force from being used, OR
2. Prevent the commission of a felony crime wherein, among the elements of the crime, is included a physical threat to a person AND the average person would reasonably believe that deadly force was the most appropriate way to stop it. You still need to be able to justify that the threat to person component of this portion of the statute rises to a level in which deadly force is reasonable, OR
3. When someone is committing BURGLARY I and there is a physical threat to a person AND the average person would reasonably believe that deadly force was the most appropriate way to stop it. And, yes, I understand that the threat to a person in one's dwelling is easy to articulate, but the requirement for a threat to a person still exists.

161.225¹
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 (Limitations on use of deadly physical force in defense of a person); 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 (Definitions for ORS 164.205 to 164.270) and any real property. As used in subsection (2)(b) of this section, "premises" includes any building. [1971 c.743 §25]

Again, the law requires a threat to person component. The arson component would, in most all circumstances, include a threat to people in the building, nearby buildings, or to the firefighters who would have to contain the blaze.

161.229¹
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]

This statute says you can't use deadly force to protect property.

161.239¹
Use of deadly physical force in making an arrest or in preventing an escape
(1) Notwithstanding the provisions of ORS 161.235 (Use of physical force in making an arrest or in preventing an escape), 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]

I am tailoring this discussion to the armed citizen rather than a police officer. However, notice that a police officer (when you include the requirements of Tennessee v. Garner) must have a threat to a person included as a component in order to use deadly force. The police officer must believe that allowing the person to escape constitutes a continuing threat to people before they can use deadly force.

161.245¹
"Reasonable belief" described
• status of unlawful arrest
(1) For the purposes of ORS 161.235 (Use of physical force in making an arrest or in preventing an escape) and 161.239 (Use of deadly physical force in making an arrest or in preventing an escape), 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 (Use of physical force in making an arrest or in preventing an escape) and 161.239 (Use of deadly physical force in making an arrest or in preventing an escape) unless the arrest is unlawful and is known by the officer to be unlawful. [1971 c.743 §29]

This allows for your perception of the events to be factually incorrect, but an incorrect understanding of the law is in no way a defense.

 

[el gringo loco]

161.249¹
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]

This would allow someone to shoot a person in any circumstance provided:
1. They were totally ignorant of the deadly force requirements in the law, AND
2. The cop ordered them to shoot in a situation wherein the use of deadly force would be illegal.

161.255¹
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 (Arrest by private person).
(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]

The only time deadly force can be used in a citizen's arrest is in defense of a person.

In conclusion, I can see where someone could read the statute alone and believe that there were exceptions to the the threat to person standard. However, relevant case law is just as binding as the words in the statute alone. State v. Haro and other case law that is used to define the reasonableness standard and how it is applied to the deadly force statutes, place additional restrictions that may not be explicitly spelled out in ORS.

 

[ZachS]

In conclusion, I can see where someone could read the statute alone and believe that there were exceptions to the the threat to person standard. However, relevant case law is just as binding as the words in the statute alone. State v. Haro and other case law that is used to define the reasonableness standard and how it is applied to the deadly force statutes, place additional restrictions that may not be explicitly spelled out in ORS.

 

[dontreadonme]

This section of the criminal code is a must read and must understand for anyone that has a gun for defensive purposes.

Justification as a defense
https://www.oregonlaws.org/ors/161.190

This is a good website, legalese notwithstanding ... in another section (https://www.oregonlaws.org/ors/161.219) it says that "...a person is not justified in using deadly physical force upon another person unless the person reasonably believes that the other person is... Committing or attempting to commit a burglary in a dwelling..."

So, in a dwelling or not ... if I were this this guy, I wouldn't brandish my hi-power until life was threatened.

My 2cents

 

[Spad]

The sad thing is stealing a car and the jail time given for the offense is a farce. Consistantly we have people who do this for profit. Does this make the average citizen mad, you bet it does. Firing a gun at the perp/car thief is an example of the frustration that arises from the lenient treatment of these offenders. That said, there is no doubt you can't fire at a fleeing perp, act as a vigilante in the above cited incident. The police have a tough enough job with out having to arrest a citizen who is taking the law into his own hands. The Chiefs response to the above comments shows that he really is a fellow citizen who we can be proud to know. Bill

 

[Trlsmn]

El gringo loco, I'm glad you took the time to read it all and do your homework, everyone should. Your analysis is 99% correct, where you have made your own judgment is at the arson section, it does not specify you must be in physical danger. I could have just said this many posts ago but my object was for people to take the time to learn for themselves.

Key here is not confusing the words property and premises.

 

[Martini_Up]

I read up to "afford the right" and about puked. What happened to America? Why does a public servant think the .gov "affords" me a right? And where in the Constitution does it say you have the right to walk down a road without fear if not the 2nd amendment itself???

FvkThatGuy!!

 

[pokerace]

[Because the community sometimes doesn't have access to all of the information in such incidents, including crime reports and witness statements, minds sometime get made up and opinions are formed with only the apparent facts at hand.
/QUOTE]

And why don't we.:huh:

 

[Gunner3456]

Just got a reply to my email to chief Junginger...

From: "Junginger, Craig" <Craig.Junginger@greshamoreg...
To:
Subject: FW: Attn. Craig Junginger
Date: Jun 2, 2010 5:13 PM

Bob, thank you for taking the time to write to me. I appreciate your comments and appreciate you sending them to me. As I said in the opinion piece, I support the U.S. Constitution and for what it stands for; however, it is for everyone and nowhere does it say to take the law into your own hands.



I know that the majority of residents feel the same way that we do, but, I couldn't let people blame my officers for doing what was the right thing to do with Mr. Witter.



Again, thanks for the e-mail.



Craig Junginger

Chief of Police

Gresham Police Department

1333 N.W. Eastman Parkway

Gresham, OR 97030

503-618-2313

"In the Company of Heroes"

There's his email address. [email protected]

Oops, I see someone already got it.