Legal Precedent (and activist judges)

Legal Precedent and the law

People are sometimes surprised when they are told that reading the Oregon Revised Statutes (the law) is not always sufficient, and question why that may be.

The answer is that it is a complex, and changing topic. To try to illustrate this, we will consider her just one small part of the law; when you can defend yourself against an aggressor.

Lets begin by looking at what the relevant section of Oregon law actually says:

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]


Seems pretty straightforward. If someone is trying to or threatening to use either physical force, or deadly force against you, you can use deadly force to defend yourself. The only real limitation is in 1) that they have to be committing or threatening to commit a felony involving that use of force. In general, any crime involving the use of (significant) force or deadly force against you is going to be a felony.

Not quite a "stand your ground" law in the style of that of Florida, but good enough (from the point of view of someone being attacked).

Note that there is absolutely nothing about having to retreat.

State vs Charles (1982)

In the early 1980's, there was one Anthony Arnold CHARLES who was attacked by four individuals in Eugene, OR. He defended himself and one of his attackers was killed. The public prosecutor decided to try him for murder. Charles requested that the jury be informed of his right to self defense. The judge refused, and Charles was found guilty. He appealed his conviction on the basis that the jury were not informed of his right to self defense. The appeal was denied.

Charles then appealed to the Oregon Supreme Court at the beginning of 1982. The court denied his appeal. Their reasoning can only be called strange (State v. Charles 647 P.2d 897 (1982)). Basically they didn't look at the 1971 law (ORS 166.219 above), but dragged up various statements dating from well before that date as well as discussing laws in other states, and proposed laws which were never passed. Off to jail with Mr. Charles.

In addition, this created case law, in pretty much direct contradiction of the actual law, and because case law is (almost) always followed, on the basis of giving equal treatment under the law, Oregon became a "retreat" state, where you had to have absolutely no way to get away before you could defend yourself. This, without any change in the actual law.

State vs Sandoval 2007

One Leonard Contreras SANDOVAL had an encounter with his wife's ex domestic partner. The encounter was described thus:

The two men had a history of combative and sometimes physically violent interactions. 
The shooting occurred on a road that both men frequently traveled. 
When the police arrived on the scene, defendant described the following sequence of 
events: Whitcraft had driven by on the road as defendant was about to turn onto it; 
after defendant turned onto the road behind Whitcraft, Whitcraft stopped his truck 
and backed it into defendant's truck; Whitcraft then turned and aimed a pistol at defendant; 
defendant grabbed a rifle that he was carrying in his own vehicle (both men kept guns 
in their vehicles), opened the door of his truck and fired a single shot at Whitcraft. 
Investigators determined that the shot had entered Whitcraft's skull behind his left 
ear, killing him instantly. Police later found Whitcraft's loaded and cocked pistol 
under Whitcraft's body.

The prosecutor decided to treat it as murder rather than self defense, based upon the CHARLES precedent, because SANDOVAL did not attempt to run away.

To make matters worse, the prosecutor insisted that the following instruction be given to the jury, and the judge agreed:

"The danger justifying the use of deadly force must be absolute, imminent, and unavoidable, and a necessity of taking human life must be actual, present, urgent and absolutely or apparently absolutely necessary. There must be no reasonable opportunity to escape to avoid the affray and there must be no other means of avoiding or declining the combat."

Sandoval was convicted of murder.

He appealed on the basis that the jury instruction was incorrect. His appeal was rejected. He then appealed to the Oregon Supreme Court, which, 25 years later, had a different set of judges. Their analysis (State v. Sandoval (2007)) is very interesting. Not only did they examine the actual law, as written, but of necessity examined the prior case law (Charles). They were not complimentary about the decision. Sandoval's appeal was upheld, and Oregon reverted back to its status of a (pretty much) stand your ground state. Again, with no change in the law.

The point of going over this is to illustrate that simply reading the law is not enough. Activist judges can (and do) stand the law as written on its head, and you have no way of knowing the current state unless you are skilled in legal research and can evaluate the written law through the filter(s) of one or more applicable legal precedents. Lawyers really do earn their money. People that just read out the written law to you without pointing out the hidden dangers of taking it at face value, do not.