General Provisions

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]

Notes of Decisions

Since the legislature's intention in enacting this section and ORS 161.225 (2) was to codify the common law of self-defense and not to articulate a new standard, 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 requirement of "great bodily harm." State v. Burns, 15 Or App 552, 516 P2d 748 (1973), Sup Ct review denied

Defendant is entitled to a jury instruction on self-defense under either this section or ORS 161.225 (2) if there is evidence in the record that he was in imminent danger of receiving great bodily harm from the other person. State v. Burns, 15 Or App 552, 516 P2d 748 (1973), Sup Ct review denied

The fact that defendant produced and threatened to use a firearm in an attempt to terminate a criminal trespass did not deprive him of the right to claim self-defense under this section for the actual use of the firearm which occurred subsequently. State v. Burns, 15 Or App 552, 516 P2d 748 (1973), Sup Ct review denied

Self-defense is founded on necessity and, where defendant could avoid threatened danger without sacrificing own safety, he was required to do so; refusal to give instruction that person claiming right of self-defense is not required to retreat before using deadly physical force against assailant was not error. State v. Charles, 293 Or 273, 647 P2d 897 (1982). But see State v. Sandoval, 342 Or 506, 156 P3d 60 (2007)

Duty to retreat imposed under this section does not extend to police officers performing their official function. Reed v. Hoy, 891 F2d 1421 (9th Cir 1989)

Even when one or more of threatening circumstances described in this statute is present, use of deadly force is justified only if it does not exceed "degree of force which person reasonably believes to be necessary" under ORS 161.209. State v. Haro, 117 Or App 147, 843 P2d 966 (1992), Sup Ct review denied

Person is not required to retreat before using deadly physical force to defend against imminent use of deadly physical force by another. State v. Sandoval, 342 Or 506, 156 P3d 60 (2007)

Law Review Citations

51 OLR 579-587 (1972)

§§ 161.190 to 161.265

Notes of Decisions

Under Former Similar Statute (Ors 163.110)

There were cases where self-defense would not be a defense but the right to self-defense was still available to establish that the defendant was engaged in a lawful act at the time of the killing. State v. Leos, 7 Or App 211, 490 P2d 521 (1971)

Chapter 161

Notes of Decisions

A juvenile court adjudication of whether or not a child committed acts which would be a criminal violation if committed by an adult must necessarily include an adjudication of all affirmative defenses that would be available to an adult being tried for the same criminal violation. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Citations

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code

(Generally)

Notes of Decisions

Legislature's adoption of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied


Source

Last accessed
Jun. 26, 2021