John is stealing from James, and James threatens to shoot John. Since it is not legal to use deadly force in defense of property, can John now legally use deadly force to defend himself against John?
8
-
Which US state does this apply to?The answer will not be the same in all.– David SiegelJul 9, 2022 at 15:00
-
@DavidSiegel Oregon– SomeoneJul 9, 2022 at 15:00
-
1But if John does not immediately comply with James' instructions to submit, or put the property down and leave the scene, doesn't his belligerence constitute a potential threat to James? How does James know that he is unarmed and means no harm?– Michael HallJul 9, 2022 at 15:43
-
@Michael Hall The question is not whether James has a right to use force. The question is whether John, the thief, has a right to use force to defend himself against James.– David SiegelJul 9, 2022 at 18:14
-
@DavidSiegel, but if John the thief defends himself against James the homeowner, does James then have the right to defend himself against John's defensive counter attack? And on, and on... Eventually it isn't a matter of offense or defense, there is a fight going on with an intruder who's intentions are unknown. It is the intruder who has put themselves at risk and lack of immediate compliance should be perceived as a threat. You watch TV and Movies I presume? "You aren't going to shoot me" they say as they walk up and take the gun away, going on to commit violence...– Michael HallJul 9, 2022 at 18:34
|
Show 3 more comments
1 Answer
It Depends
This will depend on the jurisdiction. In the US it will depend on the state. In some states it is legal to use deadly force in defense of property. In some an aggressor is not entitled to self defense.
Oregon Rule
The page "Self-Defense and Deadly Force in Oregon" by Susan G. Hauser states:
According to Oregon law, “A person may use physical force upon another person in self-defense or in defending a third person, in defending property, in making a [citizen's] arrest or in preventing an escape.”
“In Oregon,” says Portland criminal defense lawyer Lisa J. Ludwig, “it’s not really organized around a location so much as the reasonable perception of a threat.” One may defend one’s life, no matter the location, or use force in defense of a person or defense of property.
Oregon Laws
ORS 161.209 provides that
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.
ORS 161.215 provides (in relevant part) that:
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 ...
ORS 161.219 provides that:
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.
ORS 161.225 provides (in relevant part) that:
(1) A person in lawful possession or control of premises is justified in using physical force upon another person when and to the extent that the person reasonably believes it necessary to prevent or terminate what the person reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon the premises.
? (2) A person may use deadly physical force under the circumstances set forth in subsection (1) of this section only:
(2) (a) In defense of a person as provided in ORS 161.219 (Limitations on use of deadly physical force in defense of a person); or
(2) (b) When the person reasonably believes it necessary to prevent the commission of arson or a felony by force and violence by the trespasser.
ORS 161.229 provides that:
A person is justified in using physical force, other than deadly physical force, upon another person when and to the extent that the person reasonably believes it to be necessary to prevent or terminate the commission or attempted commission by the other person of theft or criminal mischief of property.
Analysis
When the question states:
it is not legal to use deadly force in defense of property
this is incomplete. While deadly6 forcwe cannot be used to defend "property" under ORS 161.229, a person may use deadly force to defend "premises" under ORS 161.225. This includes both a home an any other building.
Under ORS 161.215 one who provokes another or is the aggressor in a confrontation may not use physical force, and therefore is not entitled to assert a right of self defense.
Under ORS 161.219 one may use deadly force against a person who is "Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person"
Conclusion
As John is stealing from James, it would appear that John is the aggressor, and has provoked James. Moreover, John is (probably) engaged in a felony, and may well be using physical fore in committing that felony, depending on details not states in the question. Thus it would seem that in the circumstances described in the question, John does not have a right of self-defense as against James in Oregon, and will not prevail if he raises the issue of self defense in an Oregon court
answered Jul 9, 2022 at 15:03
