Self Defense

• Written by Scott Sharp – 5-10-11

Five levels of understanding (Belts): White, Blue, Purple, Brown and Black.  See if you can master them all.

White Belt: Statutory Authority

ORS 161.015 General definitions

            . . .

(6) “Physical force” includes, but is not limited to, the use of an electrical stun gun, tear gas or mace.. . .

ORS 161.055 Burden of proof as to defenses.

(1)   When a “defense,” other than an “affirmative defense” as defined in subsection (2) of this section, is raised at a trial, the state has the burden of disproving the defense beyond a reasonable doubt.

(2)   . . .

(3)   The state is not required to negate a defense as defined in subsection (1) of this section unless it is raised by the defendant “Raised by the defendant” means either notice in writing to the state before commencement of trial or affirmative evidence by a defense witness in the defendant’s case in chief.

ORS 161.190 Justification as a defense. In any prosecution for an offense, justification as defined in ORS 161.195 to 161.275, is a defense.

ORS 161.195 “Justification” described. . . .

ORS 161.209 Use of physical force in defense of a person. Except as provided in ORS 161.215 and 161.219, 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.

ORS 161.215 Limitations on use of physical force in defense of a person. Notwithstanding ORS 161.209, 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;

(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.

 ORS 161.219 Limitations on use of deadly physical force in defense of a person.

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.

Example of written notice:

COMES NOW the defendant and hereby gives notice of intent to rely upon the defense of use of physical force in defense of a person, as defined by ORS 161.209.

Blue Belt: Applying the Statutes

Notice: must be given “before commencement of trial” ORS 161.055. That means you could hand the DA a notice of self defense right before the case is called and voir dire begins.

If Notice was not filed, you may raise this defense by presenting “affirmative evidence by a defense witness in the defendant’s case in chief.” ORS 161.055.

ORS 161.215 Limitations on use of physical force in defense of a person. Notwithstanding ORS 161.209, 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; (consider what “provokes” means).

(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; (so if you start it, you must try to back out and effectively convey that to your “victim”) or

(3) The physical force involved is the product of a combat by agreement not specifically authorized by law. (see Rankin’s MPDTrainer for analysis)

Self Defense must be “intentional”

State v. Stalder, 117 Or.App. 289 (1992) On an assault I case, Defendant testified that the weapon discharged by accident. That testimony did not support giving a self-defense instruction.

State v. Boyce, 120 Or.App. 299 (1993) The beer glass in Defendant’s right hand hit the wall and shattered. Defendant testified that she was unaware that the glass had broken. When the victim “came bursting out towards her,” the broken glass in defendant’s right hand “collided” with the side of the victim’s face. The glass then fell on the floor. Because the victim continued to attack, defendant threw her hands wildly in front of herself to keep the victim away. Defendant testified that she had no intent to smash a glass, broken or not, into the victim’s face.. Because her defense was accident, and there was no evidence to support the theory of self-defense, the trial court was justified in not giving the self-defense instruction.

Jury Instruction (subjective):Reasonable belief is that of an ordinary person standing in the shoes of the defendant, i.e. In the defendant’s position. Therefore any self-defense knowledge or training the defendant had at the time of the incident should be taken into full account by the jury to evaluate the defendant’s assessment of the risk involved in the situation.

Purple Belt: The Big Picture

Check list for self-defense cases:

1. Client’s reasonable belief (subjective)
2. Victim’s prior violence known to client? (reputation evidence must be known to the client as well as violent history)

      State v. Ryel, 182 Or.App 423 (2002)(Reputation evidence must have been known             to the Defendant)

            State v. Whitney-Biggs, 147 Or.App. 509 (1997)(Battered Woman Syndrome;         Violent past must be known to Defendant)

State v. Lunow, 131 Or.App. 429 (1994)(Defendant must have known of    Victim’s violent history)

State v. Wheeler, 43 Or.App. 875 (1979)(Violent history of Victim relevant if         Defendant knew of it)

3. What did client know about self defense
4. Use police as expert. Dept. protocol on use of force. Why client went as far up use of force continuum as they did. (see MPDTrainer CLE on Polie Use of Force continuum)

 

Questions:

1. Was there an overt act by the victim

2. Was it provoked by Defendant

3. Did Defendant reasonably fear imminent injury or death

4. Was it necessary to use or threaten to use force

5. Was level of force reasonable

6. Were Defendant’s actions before and after the fact consistent with Self-defense.

Violent Victim?

1)      Did defendant’s knowledge of victim’s violent temper or history make her fear and resulting use of self-defense justifiable; and

2)      Even if Defendant did not personally know of victim’s violence, is that information relevant as it increases the likelihood that Defendant acted reasonably?

Sentencing:

            Imperfect Self-defense is a mitigating factor. Mens rea is not the same as for a defendant who intentionally harmed a victim.

 

Jury Instruction (subjective):

Reasonable belief is that of an ordinary person standing in the shoes of the defendant, i.e. In the defendant’s position. Therefore any self-defense knowledge or training the defendant had at the time of the incident should be taken into full account by the jury to evaluate the defendant’s assessment of the risk involved in the situation.

Brown Belt: Refining your Technique

 

1. It is not necessary to wait for the assault to be committed before acting in self defence.

Goodall v. State, 1 Or. 333 (1861)( jury should have been instructed that if they believed that there was ‘reasonable ground for (the defendant therein) to believe his life in danger, or that he was in danger of great bodily harm from the deceased, and that such danger was imminent, and he did so believe, and acting on such belief killed the deceased, he was excusable)

2. Duty to Retreat

State v. Porter, 32 Or. 135, 157 (1897)

Court found no error in an instruction stating that the danger justifying self-defense “must be absolute, imminent, and unavoidable, or the defendant must, from all the circumstances, have honestly believed it to be so.” The language in Rader respecting the doctrine of retreat when a man is where he has a right to be, however, rather than standing for an all-encompassing “no retreat” rule, as defendant and Professor Perkins have suggested is the law in Oregon, simply provides that the victim of an attack is, in some instances not required to retreat when he is in his “castle” or a similarly legally recognized place.

State v. Sandoval, 342 Or. 506 (Or., 2007)(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.)

State v. Luther, 63 Or.App. 86 (1983) (Defendant also requested an instruction on duty to retreat, based on State v. Gray, 46 Or. 24, 79 P. 53 (1905); State v. Rader, 94 Or. 432, 186 P. 79 (1919); and California Jury Instruction–Criminal No. 5.50. The court refused that instruction in favor of reciting ORS 161.209 and 161.219. Nothing in the court’s instructions implied a duty to retreat. Without determining whether defendant’s requested instruction was an accurate statement of the law, we conclude that the court’s general instructions covering self-defense were adequate.)

 

3. Reputation Evidence

State v. Griffin, 19 Or.App. 822 (1974)(Victim’s propensity for violence when drunk comes in)

State v. Wheeler, 43 Or.App. 875 (1979) (Violent past must be known to Defendant)

State v. Williams, 44 Or.App. 387 (1980) (The events in question here took place before the decedent and the witness became acquainted, but some of them occurred sufficiently recently to be relevant to the decedent’s reputation and to the witness’s familiarity with that reputation.)

State v. Peacock, 75 Or.App. 217 (1985) (Violent past must be known to Defendant)

State v. Lunow, 131 Or.App. 429 (1994) (Violent past must be known to Defendant)

State v. Whitney-Biggs, 147 Or.App. 509 (1997)(Battered Woman Syndrome; Violent past must be known to Defendant)

State v. Ryel, 182 Or.App 423 (2002) (Violent past must be known to Defendant)

 

4. What constitutes an act in self-defence

State v. Lockwood, 43 Or.App 639 (1979)(Menacing is acceptable use of physical force and therefore self-defense)

State v. Davis, 65 Or.App. 83 (1983)(Menacing can be self-defense)

State v. DeLaura, 75 Or.App. 655 (1985)(Disorderly conduct can be in self-defense)

 

5. Self Defense must be intentional

State v. Shumway, 291 Or. 153, 156 (1981)( “The affirmative defense of self-defense was clearly raised regarding the first shot, but not the second shot, which was the homicidal act. According to the state’s evidence, the second shot was fired deliberately after any necessity for self-defense had ceased.)

State v. Stalder, 117 Or.App. 289 (1992)(On an assault I case, Defendant testified that the weapon discharged by accident. That testimony did not support giving a self-defense instruction.)

State v. Boyce, 120 Or.App. 299 (1993)( Defendant testified that she had no intent to smash a glass, broken or not, into the victim’s face. Because her defense was accident, and there was no evidence to support the theory of self-defense, the trial court was justified in not giving the self-defense instruction.)

 

6. Degree of Force Used

State v. Haro, 117 Or.App. 147 (1993)(The legislature has not created an unlimited right to use deadly force against a burglar.)

Self-defense and Resisting Arrest

State v. Hall, 36 Or.App. 133 (1978)(the trial court’s instruction that “a person has the right to self-defense against unlawful physical force by a police officer in the same way he would against any private citizen” is not a correct statement of the law and should not be given on retrial.)

State v. Castle, 48 Or.App. 15 (1980)

jury could have concluded that defendant was resisting arrest even though they found that the officer was the aggressor and used unreasonable or unnecessary force. The defense of self-defense, if established, would have vitiated the resisting arrest charge and would have provided a defense to the assault charge.)

State v. Wright, 310 Or. 430 (1990) (if a peace officer uses excessive force in making an arrest, the arrestee may use only such physical force as is reasonably necessary under the circumstances to defend himself or herself against the excessive force being used against him or her.)

State v. Oliphant, 347 Or 175 (2009)(Whether arresting officer used unreasonable force on the person being arrested)

 

7. Standard for the Jury Instruction

State v. Gray, 43 Or. 446 (1904)( as to whether the defendant, at the time he fired at the deceased, acting from the standpoint of a reasonable man, had reason to believe that he was in imminent peril of great bodily harm or of losing his life.’)

State v. Rader, 94 Or. 432 (1919) (T)he killing of an assailant will not be justifiable unless, judging of the situation from the standpoint of a reasonable man under all the circumstances surrounding the defendant at the time, he had reasonable cause to believe himself to be in imminent danger of death or great bodily harm at the hands of his assailant.

State v. Burns, 15 Or.App. 552 (1973) (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’s requirement of ‘great bodily harm.)

State v. Bishop, 49 Or.App. 1023 (1981)(facts should be looked at in light most favorable to Defendant in deciding whether to give JI)

State v. Burger, 55 Or.App. 712 (1982)

State v. Freeman, 109 Or.App. 472 (1991)(One means of disproving self-defense is to prove that one or more of the limitations in ORS 161.215 is present. A defendant has no burden to disprove the limitations and, consequently, no burden to submit instructions on them.)

State v. Taylor, 123 Or.App. 343 (1993)(JI should have been given even where Defendant struck first)

Black Belt: Advanced Points to Ponder

 

Imperfect Self-Defense can be a mitigating factor for sentencing purposes, and might require a special jury finding of fact

Faulkner v. State, 458 A.2d 81 (Md. App., 1983) (Faulkner, under the law of Maryland as it now stands, was entitled to an instruction on imperfect self-defense. The matter was not fairly covered in the instructions actually given. Therefore, the judge committed reversible error in refusing to give the requested instruction.)

Mullaney v. Wilbur, 421 U.S. 684 (1975)(Burden of Proof in Imperfect Self-Defense) (the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.)

 

Self-Defense and Excusable Homicide Interplay

State v. Leos, 7 Or.App. 211 (1971)There are several distinctions between self-defense and excusable homicide. In self-defense the use of Deadly force is purposeful. In excusable homicide the use of Deadly force is accidental or mistaken. In order for defendant to be entitled to an acquittal based on self-defense he must have reasonably believed that he was in danger of death or great bodily harm. This is not necessary for the defense of excusable homicide. A further requirement of excusable homicide is found in ORS 163.110(1) which provides that the killing must have been committed by the defendant in doing a lawful act, by lawful means, with usual and ordinary caution.   In this type of situation, although self-defense would not be a defense, the right to self-defense is still available to establish that the defendant was engaged in a lawful act at the time of the killing. . . The defendant testified that he was acting in defense of himself when he unintentionally killed his wife. This testimony was sufficient to justify an instruction on excusable homicide. ORS 163.110. Under ORS 163.110(1) before a jury could convict defendant, it must first find that defendant’s act in defending himself was an unlawful act, or that it was a lawful act done without usual and ordinary caution. Immediately proceeding the challenged instruction, the trial court instructed the jury that to acquit based on self-defense they must find that the defendant reasonably believed that he was in danger of death or great bodily harm. From this the jury may well have inferred that they were required to find that the defendant reasonably believed he was in danger of death or great bodily harm before they could find that he had been engaged in a lawful act at the time of the killing. The defendant was entitled to a clear and complete instruction on the law as it related to his theory of the case.

 

Self-Defense can be a defense to an unlawful possession of a firearm charge

State ex rel. Juvenile Dept. of Coos County v. Poston, 127 Or.App. 538 (1994)Child’s limited possession of the gun meets the requirement of ORS 166.250(2)(a)(B) that possession for a lawful purpose be only temporary. Once his reasonable belief that he might need to defend his mother evaporated, child ended his possession of the gun. Although we share the trial court’s concern about allowing children to bring handguns to this case, child lawfully possessed the handgun temporarily for defense.

Generic Mischief and Questions

ORS 161.055 Burden of proof as to defenses.

…

(3) state is not required to negate a defense as defined in subsection (1) of this section unless it is raised by the defendant “Raised by the defendant” means either notice in writing to the state before commencement of trial or affirmative evidence by a defense witness in the defendant’s case in chief.

Is raising the issue by notice, pre-trial enough to require DA to disprove Self-Defense. A plain reading of the statute can lead to that conclusion.

Does this mean that self-defense evidence brought out during cross examination is not sufficient to get a JI on self-defense?

 

ORS 161.209 Use of physical force in defense of a person. Except as provided in ORS 161.215 and 161.219, 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.

Compare this phrase to Unlawful use of a weapon and the arguments prosecutors make regarding that. Use those arguments against prosecutors.

Compare the police use of force continuum and how little is necessary from an aggressor to move up the scale. Consider resisting arrest charges and how often the police’s own use of force can cause a defendant’s resistance.

Self-Defense does not seem to be a defense to an animal abuse charge. Choice of evils might be.

Self-Defense Quick Reference Chart

Statutes involving Self-Defense ORS 161.015- 161.219

Notice must be given before trial or evidence during Defendant’s case in chiefORS 161.055

Limitation on Self-Defense ORS 161.215(1) Relating to Provocation(2) Relating to Initial Agressor (3) Relating to Mutual Combat

Self-Defense MUST be INTENTIONALState v. Shumway, 291 Or. 153, 156 (1981)(Second shot was accidental)State v. Stalder, 117 Or.App. 289 (1992)(Discharge of weapon by accident) State v. Boyce, 120 Or.App. 299 (1993)(Broken beer glass recklessly hit aggressor)

Victim’s Prior Violence MUST be known to DefendantState v. Wheeler, 43 Or.App. 875 (1979)State v. Lunow, 131 Or.App. 429 (1994) State v. Whitney-Biggs, 147 Or.App. 509 (1997)(In Re Battered Woman Syndrome) State v. Ryel, 182 Or.App 423 (2002)

Was there an Overt Act by the Victim?It’s not necessary to wait until the assault to use Self-DefenseGoodall v. State, 1 Or. 333 (1861) State v. Taylor, 123 Or.App. 343 (1993)(JI should have been given even where Defendant struck first)

Did Defendant Reasonably Fear Imminent Injury or Death?State v. Gray, 43 Or. 446 (1904)State v. Rader, 94 Or. 432 (1919) State v. Burns, 15 Or.App. 552 (1973) (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’s requirement of ‘great bodily harm.)

Was it Necessary to Use or Threaten to Use Force? ORS 161.209

Was Level of Force Reasonable?State v. Lockwood, 43 Or.App 639 (1979)(Menacing is acceptable use of physical force and therefore self-defense)State v. Davis, 65 Or.App. 83 (1983)(Menacing can be self-defense) State v. DeLaura, 75 Or.App. 655 (1985)(Disorderly conduct can be in self-defense) State v. Haro, 117 Or.App. 147 (1993)(The legislature has not created an unlimited right to use deadly force against a burglar.)

Self-defense and Resisting ArrestState v. Hall, 36 Or.App. 133 (1978)State v. Castle, 48 Or.App. 15 (1980) State v. Wright, 310 Or. 430 (1990) (if a peace officer uses excessive force in making an arrest, the arrestee may use only such physical force as is reasonably necessary under the circumstances to defend himself or herself against the excessive force being used against him or her.) State v. Oliphant, 347 Or 175 (2009)(Whether arresting officer used unreasonable force on the person being arrested)

Standard for the Jury Instruction – Subjective, Reasonable BeliefState v. Burns, 15 Or.App. 552 (1973)State v. Bishop, 49 Or.App. 1023 (1981)(Facts looked at in light most favorable to Def) State v. Freeman, 109 Or.App. 472 (1991) State v. Taylor, 123 Or.App. 343 (1993)