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Oregon deadly force laws - is there a duty to retreat?

Discussion in 'Firearm Laws & Legal' started by Hal Jordan, Feb 9, 2016.

  1. Hal Jordan

    Hal Jordan Astoria Member

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    I moved back to my home state of Oregon and finally received my Concealed Handgun License on February 3. Along with it came a letter from the Clatsop County Sheriff's Office (CCSO), with seven paragraphs "intended to highlight some areas of concern." The seventh paragraph says this:

    Remember that utilizing deadly physical force is only justified in the protection of life, never property. If a threat to life exists and that threat can be reduced by fleeing rather than utilizing deadly physical force, you are obligated to flee with the exception of justifiable defense of your home. (Living areas only)​

    I was surprised to read that, because I had studied the Oregon Revised Statutes, and they seemed similar to the laws of Arizona, where I came from last year. So I did some searching and found someone with the same question which he asked in 2011 on the USA Carry forum. The first substantial answer came from user PhilipPeake, who has the forum tag of "Instructor:"

    On "on retreat" - it has a history in Oregon. About 25 years ago, someone was prosecuted for shooting with his concealed handgun. The prosecution argued that there was no need to shoot, he could have run away. The case went to the Oregon Supreme Court. They found for the prosecution, even though there is no law requiring a duty to retreat. Now, about three or four years ago, there was a similar case. The prosecution used the precedent set by the previous case to get a conviction, and the case found its way to the Oregon Supreme Court. The court examined the precedent. They were extremely caustic in their comments about the quality of the legal work behind that finding. They basically demolished it, and found for the defendant. So, 30 years ago, no duty to retreat. 25 years ago, you have a duty to retreat, even though no law says so. As of a very few years ago, you no longer have to retreat.​

    That answer made sense. A few weeks later, forum user Samuel, also with an "Instructor" tag, said this:

    Concerning your duty to retreat, there is no law specifically mentioning duty to retreat but it is expressed in ORS 161.209 by the word "necessary" and that was good enough for the Oregon Supreme Court to clarify on the spirit of the law. The Oregon State Supreme Court then ruled there is a duty to retreat per State v. Charles. There is still a duty to retreat when you can reasonably conceive of retreating per Oregon Supreme Court ruling State v. Sandoval. The ruling stated, "Person is not required to retreat before using deadly physical force to defend against imminent use of deadly physical force by another." In short, you do not have a duty to retreat if there is imminent use of deadly physical force against you. The key word here is "imminent." Short of "imminent" you still have a duty to retreat if reasonably possible.​

    This did not make sense to me. I read the 2007 Oregon Supreme Court ruling on State v. Sandoval, and I did not find the specific sentence that Samuel referenced. The trial court had given the following instructions to the jury in 2006:

    The danger justifying the use of deadly force must be absolute, imminent, and unavoidable, and a necessity of taking human life must be actual, present, urgent and absolutely or apparently absolutely necessary. There must be no reasonable opportunity to escape to avoid the affray and there must be no other means of avoiding or declining the combat.​

    The appeals court said that was fine, but the Oregon Supreme Court said no. They looked at the specific wording of ORS 161.219, which says this:

    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.​

    The Oregon Supreme Court said that the law doesn't specify, imply, or suggest a duty to retreat, escape, or avoid a deadly confrontation. Here's their conclusion:

    Without Charles, we are left with our initial impression of the statute: It sets out a specific set of circumstances that justify a person's use of deadly force (that the person reasonably believes that another person is using or about to use deadly force against him or her) and does not interpose any additional requirement (including a requirement that there be no means of escape). That impression is not altered by the requirement in ORS 161.209 that the use of deadly force be present or "imminent," or by the same statute's reference to "the degree of force which the person reasonably believes to be necessary." We conclude, in short, that the legislature's intent is clear on the face of ORS 161.219: The legislature did not intend to require a person to retreat before using deadly force to defend against the imminent use of deadly physical force by another.​

    The only qualification they gave about that conclusion was in footnote (2):

    If a particular danger is not imminent, a person who wishes to escape criminal liability may well be required to avoid the danger, rather than to seek it out and cause that danger to become imminent. See ORS 161.215(2) (self defense not available if accused was initial aggressor). But the scope of the statutes that we consider here applies only to dangers that are "imminent."​

    I also checked the Clatsop County Code of Regulations but could not find any relevant ordinances. So I don't see any duty to retreat in the Oregon Revised Statutes or the court's interpretation of them. I'm wondering if anyone here has a different take on the issue. I realize that what Samuel posted could be the proof that anyone can appear to be an expert on the Internet. But I'm really curious about what made CCSO say that there's an "obligation to flee" rather than responding with force. Maybe this will start a good discussion that will help the next gun owner who has the same question.
     
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  2. David Bowman

    David Bowman Beaverton OR Archer Defense Concepts

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    "He/She had nowhere to go" Sounds like a good start to your attorney talking to the detectives after the shooting.

    I think it is pretty clear what you could or could not do in this regard, given the situations where we would encounter a bad guy.

    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.

    Sounds to me like this covers most of the situations in which you would encounter a bad guy. There can be so many degrees of this, but I would think that a good lawyer could articulate why it was that you couldn't "retreat" from a bad guy who was robbing you in a parking lot, breaking into your home where your family lives, or attempting to carjack/kidnap you while sitting in traffic.

    I would say that most of those kinds of situations would qualify as "imminent danger" and would meet all the provisions of that statute.

    The most important part of this will be articulating through your attorney what happened, your feelings and impressions and all those key words that police officers like to hear when investigating shootings.
     
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  3. Caveman Jim

    Caveman Jim West of Oly Springer Slayer 2016 Volunteer

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    It seems that contacting the CCSO and ask for specific clarification is the best advice I can relay to you.
     
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  4. Hal Jordan

    Hal Jordan Astoria Member

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    Thanks, David. I can't think of a reason why my gun would even be out of its holster unless there were "imminent use of physical force" happening. And I can't think of a situation where a "threat to life exists and that threat can be reduced by fleeing." If Bubba is beating his girlfriend's head in with a baseball bat, I can't make her life any better by running away.

    Jim, thanks for your response. CCSO ended their letter by saying that they would be happy to answer any questions, so I will do that and report back here. I'm wondering if maybe the text of the letter comes from a time before the Oregon Supreme Court ruling in 2007.
     
    David Bowman likes this.
  5. Koda

    Koda Oregon Bronze Supporter Bronze Supporter 2016 Volunteer

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    never take legal advice from law enforcement, its not their job to interpret the law just enforce it....
     
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  6. Hal Jordan

    Hal Jordan Astoria Member

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    While that is true, I still want to find out why they believe I should run away from an active shooter. It won't cost me anything to ask the question, and it might help the next guy who gets that letter.
     
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  7. dude23

    dude23 PDX Active Member

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    Or enforce what they perceive as law.
     
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  8. Hawaiian

    Hawaiian Tigard Oregon Well-Known Member

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    There are no good outcomes from a gun fight for either party. If you can avoid firing your gun by taking a 'safe' means of retreat, that is the best way to end the threat. You will have saved yourself a whole lot of major headaches.
     
  9. ZigZagZeke

    ZigZagZeke Eugene Silver Supporter Silver Supporter 2015 Volunteer

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    LEOs are often among the people most confused about the law, believe it or not. Advice similar to this from various law enforcement officials is nothing new.
     
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  10. Koda

    Koda Oregon Bronze Supporter Bronze Supporter 2016 Volunteer

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    i would ask them why they are giving legal advice?
     
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  11. dude23

    dude23 PDX Active Member

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    I don't think the issue in question is in regards to an active shooter. There are other deadly threats besides a firearm. Potentially anyone who is an able bodied human can pose a threat of deadly force on another human regardless of size or strength differences. One of the best examples of this is trying to retreat from a potential attacker. How do you know you can outrun them? Whether you are physically able is not the only issue, you may stumble on uneven terrain, or from stress.

    Why must an innocent person minding their own business be subject to arbitrary legal hurdles that may further endanger themselves & others if they are attacked or threatened?

    This kind of debate about how many angels can dance on the head of a pin concerning self defense situations can only be something that legal scholars & sheltered middle class or elites could honestly argue over. The realities are things happen so fast & their are so many unforeseen consequences of actions that may turn the situation from its possible you may survive to you're probably going to be beaten or killed.

    What sane society cedes so much power to admitted criminals?
     
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  12. KTM530XCW

    KTM530XCW Vancouver, WA Well-Known Member

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    "(2) Committing or attempting to commit a burglary in a dwelling; or"

    Does this imply you can shoot an intruder even if he doesn't appear to be armed?

    NOT THAT I ADVISE DOING SO
     
  13. Norm0931

    Norm0931 Hillsboro, OR Sgt. Sheep Silver Vendor 2016 Volunteer

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    No, because that statute refers you to another statute in addition to outlining the points it states.
     
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  14. KTM530XCW

    KTM530XCW Vancouver, WA Well-Known Member

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    Ah,good, that makes more sense
     
  15. Norm0931

    Norm0931 Hillsboro, OR Sgt. Sheep Silver Vendor 2016 Volunteer

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    Yeah, remember politicians and lawyers make laws. If they were easy to understand, those two groups would lose power to imprison and fine the common citizen.
     
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  16. ocarolan

    ocarolan Portland, Oregon Well-Known Member

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  17. clearconscience

    clearconscience Vancouver, WA Well-Known Member

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    Don't ask any question about shooting someone to anyone that isn't legally held to keep that info confidential!!!!

    If you do get put in a bad situation and have to shoot someone that person will come out of the wood work and say "yeah they asked me if they can shoot someone"!

    It's no different than doing searches on your computer "how to hide a body"

    Consult a lawyer.

    In a anti's mind (which will probably make up most of your jury) there's never a reason to shoot someone else, even if they are going to kill you, your the guy evil law abiding guy carrying a gun.
    You always have a duty to retreat.
    If your every in that position; God forbid, make sure you have no other choice.

    Your going to have to live with that decision also.
    And if so, do not talk to anyone but a lawyer after that fact. Shut your mouth.
     
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  18. chemist

    chemist Beaverton OR Well-Known Member

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    Duty to retreat if possible? Okay, if my attacker is a legless knife-wielder, I'll back away, then run. But if he's showing me the business end of his gun, I don't think there's any way to safely retreat, whether or not he has legs.

    A young, adrenalized male waving a knife or cudgel is a deadly threat that I cannot imagine turning my back on for any reason. I'll back away of course, but running? That just triggers the pursuit reflex in predators, and I'm too old to win a footrace.

    There's that other rule about DGU's, of course: "I want a lawyer," followed by absolute silence.
    I don't think that participating in this discussion is automatically incriminating - on the contrary, it shows how carefully and seriously we consider the ramifications of being an armed citizen.
     
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  19. gimpy51

    gimpy51 Klamath Falls, Oregon Active Member

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    I love this discussion. Seems to me, the best advice is never, ever listen to LEOs explaining the laws. Go to a source that wrote the laws. In Oregon, we often hear about "gun free zones" and CC permit holders. Numerous in-state municipalities have passed their own laws which violate state laws.

    I have 2 pertinent pdf files from the sources. Can't find a way to upload them. Both important to CC holders in OR.
     
  20. PaulB47

    PaulB47 Hillsboro Well-Known Member

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    This makes no sense from our point of view, but it makes perfect sense from the rulers' point of view, and from the self-interest of those in the criminal "Justice System". Government is not here for us; it's here for them.