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Old August 3, 2014, 12:21 PM   #1
Koda94
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Understanding ORS 161.219, Oregon

Quote:
ORS 161.219 Limitations on use of deadly 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]
(emphasis mine)

http://www.oregonlaws.org/ors/161.219

In regards to (2) it seems like too much of a "blanket statement" to describe all situations of lethal force exceptions during a burglary. How is it possible to be justified in using lethal force if the defender is not in jeopardy? Also, does this section apply only to the property owner, like say if you see someone breaking into your neighbors house?


I understand that burglary in Oregon is a felony, and I have heard people say that deadly force is justified in preventing a felony but I have not studied up on that aspect enough to say its true, so any clarification on that is a bonus.
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Old August 3, 2014, 12:36 PM   #2
Koda94
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As I Google into this I think I may have just found a possible answer... its important to distinguish the difference between Burglary and Criminal Trespass, the later which is not a felony and a burglary is trespassing with the intent to commit another crime.
http://www.oregonlaws.org/ors/164.255

What still grey to me though is while it might be obvious justification of lethal force if the suspect say was visibly armed but its not so obvious justification if the suspect is not visibly armed.... (if I said that right!). IOW what if the intent of the suspect was simple larceny?
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Old August 3, 2014, 10:02 PM   #3
kilimanjaro
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How are Oregonians going to determine intent? Doesn't seem to be a requirement of the law.
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Old August 3, 2014, 10:47 PM   #4
Aguila Blanca
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Quote:
Originally Posted by Koda94
In regards to (2) it seems like too much of a "blanket statement" to describe all situations of lethal force exceptions during a burglary. How is it possible to be justified in using lethal force if the defender is not in jeopardy? Also, does this section apply only to the property owner, like say if you see someone breaking into your neighbors house?
It's possible because that's what the law says.

Quote:
(2)Committing or attempting to commit a burglary in a dwelling; or
There does not appear to be anything in the law that limits the authorization to use deadly force to prevent a burglary to only the property owner, so the way I read the law you can use deadly force against someone breaking into your neighbor's house.

If something is not against the law, it is legal.

Quote:
Originally Posted by Koda94
What still grey to me though is while it might be obvious justification of lethal force if the suspect say was visibly armed but its not so obvious justification if the suspect is not visibly armed.... (if I said that right!). IOW what if the intent of the suspect was simple larceny?
Where does the law about using deadly force to prevent a burglary say anything at all about whether or not the burglar is armed? (Hint -- it doesn't.)

Without the definitions from the Oregon statutes I can't address the difference between criminal trespass and burglary, but to my mind trespass is entering without permission, while burglary involves breaking in. I mean, have you ever heard of a criminal being charged with "Possession of trespassing tools"? So you see a guy in a black sweatshirt on your neighbor's lawn -- that's maybe trespass. If the same guy has a crowbar in his hand and is trying to pry open a window, that's burglary.
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Old August 3, 2014, 11:26 PM   #5
Frank Ettin
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Quote:
Originally Posted by Koda94
Quote:
ORS 161.219 Limitations on use of deadly 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]
(emphasis mine)

http://www.oregonlaws.org/ors/161.219

In regards to (2) it seems like too much of a "blanket statement" to describe all situations of lethal force exceptions during a burglary. How is it possible to be justified in using lethal force if the defender is not in jeopardy? Also, does this section apply only to the property owner, like say if you see someone breaking into your neighbors house?...
Okay, let's walk through this.
  1. In some ways ORS 161.219(2) is a sort of variation on a Castle Doctrine law. For example, California's version, Penal Code 198.5, reads (emphasis added):
    Quote:
    Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. As used in this section, great bodily injury means a significant or substantial physical injury.
    This is the customary phrasing of a Castle Doctrine -- a presumption of a fear of death or great bodily injury if someone breaks into your home.

  2. This is consistent with the general definition of burglary: The breaking and entering of a dwelling house for the purposes of committing a felony therein.

  3. Note also Oregon's statutory definition of burglary in the first degree, ORS 164.225:
    Quote:
    (1) A person commits the crime of burglary in the first degree if the person violates ORS 164.215 (Burglary in the second degree) and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:
    (a) Is armed with a burglary tool or theft device as defined in ORS 164.235 (Possession of a burglary tool or theft device) or a deadly weapon;

    (b) Causes or attempts to cause physical injury to any person; or

    (c) Uses or threatens to use a dangerous weapon.
    (2) Burglary in the first degree is a Class A felony. [1971 c.743 §137; 2003 c.577 §10]
  4. Historically, under Common Law, the breaking and entering of a person's home was considered a very serious crime and by it's very nature to inherently pose a grave threat to the well being and security of the inhabitants.

Quote:
Originally Posted by kilimanjaro
How are Oregonians going to determine intent? Doesn't seem to be a requirement of the law.
No matter what the particular law regarding the justifiable use of violence against another human might be, you will always have the problem of exercising judgement and articulating why, under the circumstances, you decided that you had no choice but to intentionally hurt of kill someone. You will need to make an assessment based on what's happening.

So if someone kicks in your door and yells, "Where is your jewelry?", that sounds like a burglary. If your neighbor falls through your door, forcing it open, muttering, "dis don't look like my house", you've probably got a lost and drunk neighbor.

So as we've said before, these laws don't create a free-fire zone, nor are they licenses to kill. They are more like escape hatches when your left with absolutely no other choice.
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Old August 4, 2014, 10:49 PM   #6
Koda94
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I think I might be reading too much into determining the "intent" of a burglar. The word burglar itself already describes the intent, hes trespassing to do other crimes and thus you have reason to fear for your safety. So IOW that would mean there is already enough evidence to reasonably presume he is indeed a burglar not a lost drunk. The law does sound like a Castle Doctrine, and I do understand a Castle Doctrine does not create a free-fire zone like Franks example I don't want to shoot a lost drunk... actually I don't even want to shoot a burglar I'm still going to let the jeopardy rule be part of my programming but understanding that the act of burglary escalates the situation to be in jeopardy.... at least in Oregon.
Am I on the right track?
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Old August 5, 2014, 12:00 PM   #7
Glockstar .40
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Quote:
ORS 161.219 Limitations on use of deadly 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]
It also important to note that once the felony has been committed you can no longer under law use deadly force.

You need to be able to discern whether he's committing, attempting to commit or committed the felony. When your emotions and adrenaline are pumping it may not seem like a difference but there's a BIG difference in the court room.
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Old August 5, 2014, 12:52 PM   #8
Frank Ettin
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Quote:
Originally Posted by Koda94
I think I might be reading too much into determining the "intent" of a burglar. The word burglar itself already describes the intent,...
Yes, but that means that you must be able to articulate why a reasonable person would have concluded that the person in your home had the requisite intent to be described as a burglar. So will you be able to articulate why a reasonable person would necessarily decide that the person who broke into your home intended to commit a crime in your home, or was a lost drunk, or was a seeking shelter from a violent storm (assuming the condition exists), or was trying to escape from someone trying to do him harm, etc.
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Old August 5, 2014, 02:48 PM   #9
Koda94
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Yes.
And thats why a Castle Doctrine is not a license to kill.

Thankyou for helping clarify the law, im going to work into my training to look for all the elements of the situation before taking action.
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