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What defines "Threat of bodily Harm"

Discussion in 'Legal & Political Archive' started by eliduc, Sep 5, 2015.

  1. eliduc

    eliduc Active Member

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    When are you legally within your right to protect yourself with a firearm from bodily harm? Hypothetically, you accidentally tap the car in front of you at a stop sign. You get out of your car to exchange information and the other driver in a fit of road rage takes a swing at you. If he breaks your nose that's bodily harm but in my opinion it doesn't rise to the level required to protect yourself with deadly force. What if he keeps coming after you?

    The reason I ask, I am prescribed an irreversible blood thinner by my hematologist. So, if someone would break my nose it could be a major medical emergency. If I suffered a concussion it could be fatal. I would consider this a special circumstance threat requiring me to protect myself against harm...but would law enforcement and the courts?
     
  2. Certaindeaf

    Certaindeaf SE Portland Well-Known Member

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    Try punching a cop in the nose? Not trying to be funny here.. they'll probably shoot you.
    Try not to get punched in the nose though.. even if that means retreating. My opinion.
     
  3. Dyjital

    Dyjital Albany, Ore Flavorite Member Bronze Supporter

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    Depending upon your ability.

    A judo master would have a hard time convincing a court that the empty handed enraged man coming towards them would seriously harm them.

    An older citizen who is frail would have that defense.
     
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  4. 41Slinger

    41Slinger Harrisburg Oregon Bronze Supporter Bronze Supporter

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    I've seen a guy with a phobic fear of snakes threaten another guy while holding a pipe wrench if he came any closer with the snake and believe me, I know for a fact he would have used it. I agree with Certaindeaf, retreat if you can, but at some point I guess you have to do what you think you need to do and deal with what may come. JMHO
     
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  5. etrain16

    etrain16 Oregon Bronze Supporter Bronze Supporter

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    I seriously doubt you'll get a definitive answer here. The law is somewhat vague, probably with good reason. What might be deadly force against you, with your medication, may not be deadly force against an otherwise healthy person. So the law allows some latitude in the definition of a deadly threat. Keeping in mind, that you'd have to convince the law, the DA and maybe a jury that you believed your life was in danger. The law uses terms like 'reasonable person' in helping to determine the severity of a threat - as in, what would a reasonable person have thought in that same circumstance.

    Here are a few excerpts from the Oregon Revised Statutes - these are all easily available online at no cost. It's a good idea that you be aware of the laws in your state.

    As others have already stated, it is always best to either retreat or simply avoid the circumstance altogether if you can. De-escalate the situation if you can.

    § 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]


    § 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]


    § 161.215¹
    Limitations on use of physical force in defense of a person

    Notwithstanding ORS 161.209 (Use of physical force in defense of a person), 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]
     
  6. Ben Beckerich

    Ben Beckerich NW Oregon Bronze Supporter Bronze Supporter

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    Whatever the grand-jury believes was reasonable.

    Another thing to keep in mind.... even though all shooting go to grand jury in Oregon, the grand jury leans heavily on what the DA tells them and tries to get them to do. So if the DA is interested in prosecuting you, the grand jury is probably going to indict. If he's not, they probably aren't going to.

    Grand juries are kinda good, but also kinda pointless... every time I've been involved in the process (about a half dozen) it's basically just been the assistant DA running the show, telling the jury what to do, and them doing it.
     
  7. Roger65

    Roger65 Portland Active Member

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    Mas Ayoob answers questions related to self defense on the forum over at Glock Talk. One time I asked him a similar question. I had Cataract surgery in both eyes at age 39, and a blow to the face has a higher risk of permanently blinding me.

    So his answer was to get some kind of documentation, something I could show in court that would prove it was reasonable for me, under those circumstances, to beleive I was at risk for grave physical injury. A note from a doctor for example.

    The key, and this is just me talking, is to be able to show that a reasonable person would have acted the way you did under the same circumstances, knowing what you knew at the time.
     
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  8. freestoneangler

    freestoneangler wa Well-Known Member

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    "Your honor, I was in fear for my life"... 9 words to remember.
     
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  9. The Heretic

    The Heretic Oregon Well-Known Member

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    The other key factor, if it hasn't already been said, is what a "reasonable person" would believe is a serious and imminent threat to themselves or another innocent person.
     
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  10. DuneHopper

    DuneHopper Douglas County. Well-Known Member

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    Just remember , do not shoot to injure. To many people think that is a good and appropriate response.
    In most cases if you say I shot him in the knee to inure him well that guy will probably sue you later on.

    Not to mention you might even get an assault with a deadly weapon charge. A good rule I use, is my firearm is for a Deadly threat. That way I know and will rinse and repeat that to a DA or LEO.
    If I can help it I wont shoot to injure anyone I shoot at.
     
  11. Ben Beckerich

    Ben Beckerich NW Oregon Bronze Supporter Bronze Supporter

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    I can't agree with this sentiment at all, even if we arrive at the same place.

    "do not shoot to injure," isn't a maxim you can apply universally. What if injuring is exactly the minimum amount of force needed to stop the threat? What if a lawyer can make a jury THINK it was? And what difference does it make whether you shoot someone in the leg because you mean to or not, or you shoot someone in the leg and the they survive or you shoot someone in the chest or head and they surivive? Aren't they going to sue the bubblegum out of you either damn way anyway?

    A much less complicated policy is to shoot to stop the threat. Doesn't have jack bubblegum to do with shooting to "kill" or "injure," and happens to BE the criteria that'll be used by others to determine if you were justified or not. It also happens to preclude shooting to "injure," since the best, fastest, most reliable way to end a threat has been proven by thousands of experts to be accurate fire to CoM or CoCNS.... chest and head shots.

    When asked why'd you shoot him in the head instead of the leg, your answer won't be "'cause I don't shoot to injure, y'hear'm sayin'?" with a spit of Copenhagen into a Gatorade bottle... it'll be "because _______ and ______ and ________ and _______ and ________ and _______ law enforcement defensive tactics experts have repeatedly taught that the single best way to stop a threat to your life is to shoot center-of-mass, so that's what I did."
     
  12. DuneHopper

    DuneHopper Douglas County. Well-Known Member

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    LOLOL I sure hope you didn't think I would quote what I posted to a LEO or DA. ?
    I think telling anyone in an open post I would shoot to kill would careless on my part and I wont.
    If one says to the police you are using a specific technique to kill you will surely be in hot water.
    I just think you way over analyzed my post. If you notice how short my post was and how long yours was trying to explain what I meant ? I think you missed allot of what I was saying and then explained areas I never mentioned. I am going to however stand by my thoughts in the post and what I was explaining was just a simply analogy. In a court room it will take novels to simplify this.
     
  13. The Heretic

    The Heretic Oregon Well-Known Member

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    You don't shoot to kill or injure.

    You shoot to stop the threat of serious bodily harm.

    When the threat no longer exists, then you stop shooting.

    However, if the threat is serious bodily harm, then you are doing yourself (and/or everyone else involved) a serious disservice if you intentionally shoot someone in the leg or arm or anywhere except where you would more likely get stop the threat; the torso or the head.

    If your shot to the torso or head results in the threat being stopped and the person survives, then fine, otherwise the attacker is stopped and that is okay too - not your fault, it is theirs.

    If you want your response to be non-lethal, then do not use a lethal weapon in your response, or worse, pretend that using a lethal weapon is a non-lethal response. If you survive, you will get eaten alive in court.:rolleyes:
     
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  14. Oathkeeper1775

    Oathkeeper1775 Coast Range Well-Known Member

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    I think who the two parties are makes a big difference to the law and the grand jury; an angry (urban) mob surrounding your car, breaking glass, tipping your car over, threatening your family, is much different than an old grouch taking a swing at you.

    I believe the law sided with the SUV driver who plowed-through the motor-cycle gang back East..a couple years ago.

    The most-difficult thing for people to remember in the heat of the moment is "prevention" from being killed or injured, rather than "justice" for the attempt....

    It takes a lot for a jury to issue a death sentence, one person cannot be allowed to hold that authority....but that simply may be a Categorical Imperative paradigm. :D

    I also believe that a "response in kind" will weigh-heavily on a grand jury; not as simple as "paper....rock....scissors".
     
  15. eliduc

    eliduc Active Member

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    I agree that to retreat away from the threat of harm is the best choice if it is an option. If I came upon a burglar in my home I would not shoot him just because the law allows it, only if I was threatened with eminent harm. If I was outside and I knew my home was being burglarized I wouldn't go in to engage the burglar. Just making that choice might put me in a bad legal position. Why did I choose to confront the burglar when I I had the choice to retreat? Whatever the property loss it would not be worth the legal problems connected with a shooting. . The expense of defense would no doubt be more than the property loss and that is what insurance is for.
     
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  16. Ben Beckerich

    Ben Beckerich NW Oregon Bronze Supporter Bronze Supporter

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    I doubt it's ever that cut and dried. I think most home owners are surprised. Several times in my life, I've gone into or through my house to "clear" it, believing there's at least a possibility that someone unwelcome might have been in there... but knowing the odds were overwhelmingly that there wasn't. Should I have called the police in those "maybe" instances? There never was anyone in there. But if there HAD been, a million armchair quarterbacks would have been angrily shouting "he should have called the police!" the next day when it got posted here and across the internet. I'm gonna guess the reality is that the number of times a gun owner goes to take a look and there's actually a burglar there is similar to the number of times gun owners buy lottery tickets and actually win. But that one unfortunate bastard..... better be on his game.

    Yea.. if I drive up to my house and can SEE flashlights shining around inside and my front door is kicked in....... sure, I'll call the cops. I just don't think it's ever that easy.
     
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  17. revjen45

    revjen45 Snohomish County Well-Known Member

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    Not to mention that saying you shot to injure indicates that in your own mind you didn't think lethal force was justified. The Persecuting Shyster could throw that in your face and the surviving Orc will say he just asked if Anttwon lived there and you shot him. You shoot when not shooting is the only worse option.
     
  18. Koda

    Koda Oregon Bronze Supporter Bronze Supporter 2016 Volunteer

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    that’s not just you talking that is the key. In this case a well documented medical condition that makes any blood loss a potentially life threatening injury is pretty reasonable understanding that said person has a right to protect themselves from an unprovoked attack. This doesn’t mean you should not be diligent to de-escalate any situation or not over-react but there is no reasonable expectation that anyone with your medical condition should be expected to choose to enter physical combat that you didn’t escalate.

    just my opinion, IANAL

    Its also my opinion that if the OP is asking this question he needs to read the book Deadly Force by Massad Ayoob. If there was just one book that completely covers the subject of self defense in a manner that the legal layman can understand this book is it.
     
  19. mjbskwim

    mjbskwim Salmon,Idaho Well-Known Member

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    The question was about grave bodily harm not shooting to injure shooting to stop didly skwat,shooting to head and shoulders

    I have a herniated umbilical (Belly button) from lifting more than I should or whatever.
    I would not let someone punch me in the stomach because I don't know if it would tear more open and kill me. I have bad hands and shoulders,so defending myself against some big kid may not turn out good
    You never know how hard someone can hit. Mike Tyson could kill men with one punch.
    Bad example? There are far more dangerous people out there than Tyson ,walking the streets.
    And eliduc 's example of traffic accident. Who knows when the other guy will go off? Sure retreat if you can,but maybe he's pretty fast. Not always possible,I don't care how fast and ninja you think you are. But if the guy gets out with attitude,then get back in the car,sure.
    But I digress.
    You should have some idea of what punishment your body can take,then believe that you are right in the response you take. If you don't believe you were in harms way,you will falter in court and lose.

    As I have said in other threads,you never know who you are dealing with.How many people they have killed,what training they have had,if they just lost a family member,their spouse just left them.
    We don't have time to interview a bad guy to see what he may be capable of doing to use
     
  20. jbett98

    jbett98 NW Oregon Bronze Supporter Bronze Supporter

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    Ask George Zimmerman, he should know.