<---Not a lawyer, but has had basic LE training and volunteers with a local LE Agency.
Quote:
Originally Posted by poodleshooter1
Let's say you had legal justification to shoot and drew, perhaps because they were approaching with a knife or bat in hand. When you drew your gun they dropped their weapon and stopped advancing. Now you're not able to shoot and are holding them at gunpoint(who would hoster at this point lol).
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Not able to shoot? Not necessarily. Not in Oregon, anyway. Your justification is in their intent to commit a crime. Just because they stopped advancing or dropped their knife/bat/whatever doesn't necessarily mean they have changed their mind.
Maybe you just interrupted their OODA loop and they're taking a second to reevaluate and decide how to now deal with you, a now armed victim.
I'll touch on that later.
But you change the scenario in the very next paragraph by saying the keep advancing.
Those are TWO DIFFERENT scenarios and they can play out quite differently, or similarly depending on different factors.
Scenario #1 They stop advancing and drop their weapons (but don't run. This wasn't specified in the OP, but he seems to conclude that they don't leave, but keep advancing on you after dropping weapons)
Scenario #2: They drop their weapons BUT KEEP ADVANCING
In Oregon, both are still attempting to commit Felonies, and both scenarios justify deadly physical force in your defense, and you can come out of the holster blazing.
Recommended? Maybe. Maybe not. Again, depends on a few factors.
See here:
So in Oregon,
physical force is justified in self defense and in defense of a third party, and a degree of force which the person believes to be necessary
for the purpose.
So whatever level of force is necessary to prevent the illegal use of force can be used upon the attacker(s), so long as I can clearly articulate based on the facts as to why I believed that level of force was necessary.
Those facts include what I observed to be happening at the time, and why that level was necessary given all factors (their numbers, size and weight vs mine, my dispositions [injuries, medical conditions, etc.]).
If I can take a look at the scenario, and I reasonable believe that
the use or imminent use of unlawful physical force is being used against me or a third person, then I am justified in using an appropriate level of force to stop the illegal use of force against me or a third person.
That's just physical force, though:
DEADLY FORCE IN OREGON:
Quote:
ORS 161.219 - 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]
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If they are "using or about to use unlawful deadly physical force against a person" (be it me or a third party), then lethal force is justified.
In Oregon:
Quote:
ORS 163.185 - Assault in the first degree
(1) A person commits the crime of assault in the first degree if the person:
(a) Intentionally causes serious physical injury to another by means of a deadly or dangerous weapon;
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Approaching me with a knife or bat in hand and displaying intent to harm me (the OPs scenario), then I am justified in using Deadly Physical Force.
I am also justified in using the same amount of force in defense of a third party who is in the same scenario, if I believe the attackers are "about to use unlawful deadly physical force against a person."
Quote:
164.395 - Robbery in the third degree
(1) A person commits the crime of robbery in the third degree if in the course of committing or attempting to commit theft or unauthorized use of a vehicle as defined in ORS 164.135 (Unauthorized use of a vehicle) the person uses or threatens the immediate use of physical force upon another person with the intent of:
(a) Preventing or overcoming resistance to the taking of the property or to retention thereof immediately after the taking; or
(b) Compelling the owner of such property or another person to deliver the property or to engage in other conduct which might aid in the commission of the theft or unauthorized use of a vehicle.
(2) Robbery in the third degree is a Class C felony.
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If they don't want to take anything, and just want to beat you up, then it's Assault (posted above), which at the top three degrees is Also a felony (ORS 163.185, ORS 163.175, ORS 163.165)
(Side note for the curious: Fourth degree assault in Oregon is a Class A misdemeanor, and involves Intentionally, knowingly or recklessly causing physical injury to another, or via criminal negligence causes physical injury to another by means of a deadly weapon [ND that injuries a person, doing something dumb while wielding a sword, etc, the key being that the act wasn't committed with intent to harm. It was an "accident".] It can bump up to a felony under certain circumstances.)
So, the two scenarios as presented by the OP (either robbery or assault with a weapon), is the commission or attempted commission of a felony:
Quote:
Originally Posted by poodleshooter1
Let's say the start talking to you and are approaching slowly step by step. If you can, try to create distance and put an object between you and them, sure. But whether you can or can't create distance and place an object between you, do you have legal justification to shoot if they disobey commands to stop advancing, etc. or do you actually have to get to the point where they are two feet from you and able to snatch your gun, and actually trying to snatch your gun?
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Short answer, in Oregon, is no, you don't have to wait until they are that close. You could shoot them right off the bat (pun intended) and be legally justified as they have already shown their intent to commit a felony against you.
There are really two scenarios in the OP:
Scenario #1 They stop advancing and follow your commands to prone themselves out on the ground. You probably won't shoot, and you may decide to hold them there while you dial 911 and get the cops there. Or, run like a bat outta hell to safety.
And no, in this scenario you're not going to reholster, as the threat against you isn't definitely gone.
You don't know what their intentions are. For all you know, once you holster your weapon, they will jump up and attack you. So you're going to hold them there until the local Police/Deputies arrive and the threat to your life is removed. And yes, you will be drawn down on and ordered to drop the weapon. Do as you're told.
Drop the gun as the police arrive (away from your assailants on the ground, obviously), and keep your hands up. Everybody will be detained, and yelling at the cops that you're innocent won't change that, or speed the process up. They don't know who is who until they get everybody detained and ask some questions.
Scenario #2: They drop their weapons BUT KEEP ADVANCING
The question for Scenario 2 is, has their intention to commit a felony against you changed?
If they are still advancing, they can still commit "seriously physical injury" against you with their hands.
Especially if there are thee of them against you!!
But it's reasonable to believe that after moving toward you in a threatening manner with weapons, if they don't run away but keep advancing on you without weapons, ignoring your commands, then their intentions haven't changed.
If they drop their weapons (or even if they don't!), and just turn tail and run, then yes, their intention to commit a felony against you has obviously changed. They are going to leave you alone or go and get guns (or friends) and come back, so you should get out of there, but you probably shouldn't shoot them.
Definitely call 911, get to safety, and file the report. Give the Police every detail you have.
It could also depend on what they're saying. If it's along the "we're gonna kill you" or "give me your money" variety then they are attempting to commit Murder, assault, or robbery in Oregon, which are all felonies.
Again, justified under ORS 161.219 as they are "committing or
attempting to commit a felony."
SHOOTING IN BOTH SCENARIOS IS JUSTIFIED:
Scenario 1: Attempting to commit a felony. It's not necessarily your job to wait to see if they change their mind. They are attempting to commit a felony, and deadly physical force is justified. If they do change their mind upon your challenge before you start shooting, then by all means, hold them their until LE arrives, but challenging is a way to protect yourself and clarify their intentions. But if it's already clear and you're the only guy there who could be their victim, it's pretty clear that you're the target. So challenging isn't even required. If there's time, do it. If they're already too close, you probably don't want to wait.
Scenario 2: Again, attempting to commit a felony, with or without weapons (without weapons is Assault in the Second degree which is a B Felony, ORS 163.175)
If they say, "We're so sorry you're on candid camera!" It could be different. But those people are likely to freak out and run for cover screaming.
But if they're pulling a stunt like that they might get shot anyway, because again, BOTH scenarios are felonies and shooting is justified.
Quote:
Originally Posted by poodleshooter1
What are the elements of such a situation?
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As others have said, millions of options.
Totality of the circumstances is important:
1) Number of attackers
2) Their demeanor (what are they saying, how are they looking at you?)
3) Their actions (are they advancing or retreating?)
5) Their disposition (their numbers, their physical strength and abilities)
4) Your disposition (no retreat option, no chance of successful escape, and as others of mentioned, physical disabilities or limitations, illness, etc.)
6) Location. (Where are you? Any help nearby? Or are you in a scenario that they've obviously trapped you?)
As has been stated, there are a million elements, all of which contribute to your decision, your justification and the local authorities findings upon their investigation.
What you'll find is that it comes down to state and local laws.
Shooting in BOTH of the scenarios the OP presented (Have weapons, drop them, but don't leave, or drop weapons and keep advancing) is justified in Oregon, because there are clear and articulate facts that would lead to the reasonable belief that those individuals are attempting to commit a felony against you (or a 3rd party if it's the guy next to you).
As many have said, talk it over with a lawyer,
and know your local use of force laws, and be able to articulate why you were justified. If you don't know the laws and/or can't articulate your reason for using Physical Force or Deadly Physical Force, carrying a weapon can result in a lot of legal problems. Definitely have a lawyer handy.
If you are legally justified, and can articulate it, then you probably won't wind up in a scenario where you unjustifiably shoot someone.
Yes, people make mistakes, but reduce those chances by knowing the legal requirements.
Quote:
Originally Posted by TDC20
The court case is a result of a disagreement with my judgement by the State's attorney. They are claiming that I committed a crime. I contend that I did not.
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If you know the laws, and can articulate your use of force, chances are the DA won't file charges against you. You may be detained, but if the witness(es) and evidence are on your side, more likely than not you will be released.
ETA: Holy %$&% that is long.
But I hope it's useful and/or educational. Or at least interesting and thought provoking.
Stay Safe!
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