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Let's discuss Use of Force laws! (Oregon)

Discussion in 'Legal & Political Archive' started by 1337BaldEagle, Mar 1, 2015.

  1. 1337BaldEagle

    1337BaldEagle Earth Active Member

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    Hey folks,
    Time to get your internet warrior lawyer pens out.

    I was reading Oregons Use of Force laws (I read law for fun, I know I'm weird) and I came across where it was permissible to use deadly force in 3 instances when defending a premisses that you are in possession or control of.

    The part in question is "or a felony by force" I could assume that this would mean felony assault, rape and the like. However, I tried to cross reference the phrase "felony by force" and came up with little other than a couple other states that have a similar phrase. It seems that it is a coined phrase but I had little success finding it used for context or used where it lists a definition of the phrase. I'm looking for a meaning and or what kinds of felonies apply, what felonies do not apply.

    Anyway, if you have any instances where this phrase has been used in someones defense that would be great but if you would just like to articulate that's cool too.




    Eagle
     
  2. Koda

    Koda Oregon Bronze Supporter Bronze Supporter 2016 Volunteer

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    I think the by force part is obvious but how many know every single action that is a felony? Its important to remember that at the end of the day your actions will be judged by what a jury considers what a "reasonable" person would have done.
     
    boogerhook likes this.
  3. Karen Payne

    Karen Payne Salem 1911 girl Bronze Supporter

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    I like to use Massad Ayoob's definition

    Ability; Possess means (weapon and/or training), the power to kill or cripple
    Opportunity; they are within the area to carry out their ability to kill or crimple
    Jeopardy; Acting in such a manner that a reasonable and prudent person would Conclude they are in danger of immediate and otherwise unavoidable death or grave bodily harm.

    Following these will keep you on the right path in most states along with Oregon.
     
  4. 1337BaldEagle

    1337BaldEagle Earth Active Member

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    I have no doubt that it would keep me safe if I were to follow those very simple rules. And I have delusion that a jury of my peers would ultimately decide how reasonable the actions are. But I mean no disrespect but that wasn't my question. I'm intrested particularly the term "force" I mean technically force of some kind goes into the commission of any act Although I think it is not being used in that manner. Is it supposed to be susynonymous with violence? How do you suppose that phrase is meant to be enturprated, especially since the previous portion of the sentance speaks of (spesifically) a felony (arson) where you are justified in using lethal force if you reasonably believe that it's nessisary to prevent that action.
     
  5. Gunguy45

    Gunguy45 Well-Known Member

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    There should be some case law in Oregon on the matter. Probably have to search Lexus-Nexus.
     
  6. Karen Payne

    Karen Payne Salem 1911 girl Bronze Supporter

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    No disrespect as I see it :)
    I don't have a Oregon definition but would add to what Massad Ayoob teaches;

    Deadly force or lethal force is that degree of force that a reasonable person would consider capable of causing death or grave bodily harm. It is that degree of force, which a reasonable and prudent person would consider capable of causing death or grave bodily harm.

     
    Mongo1 likes this.
  7. Provincial

    Provincial Near Salem, OR Well-Known Member

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    There is specific Oregon law that applies to property, too.

    § 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]

    This statute is surely detailed by case law, but lays the groundwork for both decision-making at the time, and review after-the-fact.

    It appears that arson is considered deadly force. Does anyone know more specifics about this?
     
  8. boogerhook

    boogerhook Seattle Well-Known Member

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    These are the very standards in WA state for the use of force as taught by the WSCJTC. Keep in mind some states have one more: PRECLUSION. The basic question: Was there any other option you could have taken instead of shooting the person. Of course it opens a can of worms. In hind sight there are more than 20 options every time.
     
  9. pokerace

    pokerace Newberg Well-Known Member

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    I think there is a bill in Oregon congress to change the wording in § 161.225¹ this year,
     
  10. Ratfink

    Ratfink Eastern Conservative Orygun Retired Madman

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    As a"retired" cop, It is Always left up to the District Attorney for the ultimate decision and determination as to what is "reasonable". That office holds the power to file homicide charges or review the case and dismiss said charges. It used to be once upon a time, you could shoot any fleeing felon and to prevent any felony upon a person but the libtards have twisted those laws to confuse and confound the "reasonable" person as to cause sufficient doubt in almost anyone's mind. ( I refer to the twelve rocks in the box)....:confused:
     
  11. 1337BaldEagle

    1337BaldEagle Earth Active Member

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    Care to post the bill number so I dont have to go look? :p
     
  12. pokerace

    pokerace Newberg Well-Known Member

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    I don't remember!! check HB2050,HB2181
     
  13. orygunmike

    orygunmike Beaverton, OR Active Member

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    an excellent resource for all things ORS is "www.OregonLaws.org"
    Along with current ORS text, it provides commentary and case law.

    Regarding ORS 161.225, and your question on "felony by force"....it says this:
    http://www.oregonlaws.org/ors/161.225

    "Since the legislatures intention in enacting this section and ORS 161.219 (Limitations on use of deadly physical force in defense of a person) was to codify the common law of self-defense and not to articulate a new standard, the statutory phrases requiring that there be a felony involving the use or threatened imminent use of physical force against a person, unlawful deadly physical force, or a felony by force and violence are the functional equivalents of the case law requirement of great bodily harm. State v. Burns, 15 Or App 552, 516 P2d 748 (1973), Sup Ct review denied".

    Pretty straight forward. You can only use deadly force if, among other conditions, the situation you face meets "functional equivalents of the case law requirement of great bodily harm" ... (Ability, Opportunity and Jeopardy).

    Buy and read "The Law of Self Defense" by Andrew Branca. A must read for anyone interested in self defense.
     
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  14. 1337BaldEagle

    1337BaldEagle Earth Active Member

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    Interesting take though, what would your take be on the clause in 161.255 (not 161.219) speaking to:

    is it "presumed" by the state that arson satisfies all requirements without there having to be threat of deadly force?

    Arson does not necessarily imply force of threat to yourself.

    Example: You return home from shopping to your locked and secure house. You know no one is inside lawfully. You pull up and see a man with a lighter bent over a gas tank and a pile of wood at the base of your house.

    Is it legally permissible to take lethal force to prevent the arson?

    The way I read it seems, yes, otherwise the second clause (a felony by force and violence by the trespasser) would just be redundant.

    I know we are getting mildly off topic here but posted specifically about that deadly force MUST be included in the equation.

    I would also like to point out that State vs Burns was an armed robbery and had nothing to do with attempted arson.


    Eagle
     
  15. ZigZagZeke

    ZigZagZeke Eugene Silver Supporter Silver Supporter 2015 Volunteer

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  16. orygunmike

    orygunmike Beaverton, OR Active Member

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    Respectfully ... you're attempting to build your education on a very important topic in a forum not suitable for such an endeavor. While I respect your interest in becoming proficient on this vital topic, you don't yet have enough foundational knowledge on the topic to ask the right questions or comprehend the answers.

    Again, read Branca's "The Law of Self Defense".... then read it again. Read Ayoob's "Deadly Force"...and Ayoob's " In the Gravest Extreme". And take a course from a good instructor on the topic.

    Once you have a very firm grasp of Branca's 5 Elements of Self Defense: Innocence, Imminence, Proportionality, Reasonableness, and Avoidance ... you will be in a good position to handle the statutes/ORS.


     
    Last edited: Mar 2, 2015
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  17. 1337BaldEagle

    1337BaldEagle Earth Active Member

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    I like how you artfully sidestepped the question. I have no doubt that the 3 titles you mentioned are good reads and I have seen many videos that Ayoob has made on the subject. Further, the CHL class I took made it exceedingly clear on how to be "well within" the law.

    Though I would never wish to have to test the law to which I am speaking I think articulation, yes even one on an internet forum, can be educational and meaningful as long as it is taken within context, that it is advice or comments from an internet forum.

    The premise that I don't know how to ask the right questions kind of mildly left a bad taste in my mouth.

    In every state I would say Ayoob's Ability, Opportunity, Jepordy, formula would hold up in most every instance.

    But that is not what I asked you. Ayoob's formula for self defense is a cookie cutter and does not discuss what is permissible by state, or specifically Oregon, but instead makes a standard by which "if you do this, you should be good."

    The most obvious example of where Ayoob's formula is restricted to more stringent requirements than state law would be Texas, where there are many ways one could used lethal force outside of Ayoob's formula and it would be permissible.

    And that is what I am asking. Perhaps it is not a question you wish to answer. And that is okay, but to imply that I have not done my research kinda rubs me the wrong way but probably shouldn't since I doubt you meant anything by it.

    Eagle.
     
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  18. Gunguy45

    Gunguy45 Well-Known Member

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    What he's getting at is the same thing I pointed out earlier: DO NOT try to read the text of the law and then make decisions from it. Because the law as it stands isn't necessarily just the TEXT, it's also the existing case law interpreting the statute, which can narrow down the text quite a lot.

    For instance, Washington law says (approximately, I don't have the time now to get the RCW) that any felony committed upon a person justifies deadly force. However, our courts have ruled that it's basically only SOME felonies. So for instance, in WA, an assault, even a slap, committed in the course of a trespass is a felony. But the courts have ruled that the assault has to be serious enough that it is likely to produce death or greivous injury.

    It gets more complicated, but I dont' have time to go into the exact details. But the point is that you can get yourself into a lot of trouble trying to interpret a specific statute unless you have the tools and skills necessary to research the relevant case law. Ayoob, Branca, and others have put together some some very good rules which will save you a lot of grief unless you just happen to get incredibly unlucky. Basing your actions or understanding on your reading of a specific statute is a good way to make a wrong decision on use of force. If you have serious questions about the statute in question, contact a defense attorney who knows their stuff and have them research the relevant case law.
     
  19. 1337BaldEagle

    1337BaldEagle Earth Active Member

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    I'm not trying to read text and disregarding caselaw. It amazes me how many people jump to that conclusion. I merely, posed a question to a forum in hopes that someone has information pertaining to the specific query. Perhaps someone has researched this specifically and would care to share findings. That's what I'm looking for.

    If you would note I asked for caselaw on the subject in post number 13 because the case orygunmike used was State vs Burns and had nothing to do with arson. It had to do with armed robbery.

    And by the way I did search Lexus-Nexus with little results that specifically pertained to my arson question but got a ton of examples for "forcible felony." And for that I thank you.

    Eagle