When is a person justified in using deadly force in self-defense? The killing of Trayvon Martin and the circumstances surrounding his death have raised questions about “Stand Your Ground” statutes (like the Florida statute at issue in the Martin death) which allow the use of deadly force in self-defense.
The use of deadly force in self-defense is not a new legal concept. Most states have laws which allow a person to use reasonable force—which includes deadly force—to protect oneself when in one’s home, the so-called “Castle Doctrine.” Historically, the use of deadly force in self-defense did not extend outside of one’s home because laws usually imposed a “duty to retreat.”
Essentially, the use of deadly force outside of the home was allowed only when a person was unable to retreat from the imminent use of deadly force upon oneself. In 2005, Florida was the first state to explicitly extend the use of deadly force in self-defense outside of the home. The relevant section of the Florida statute provides:
- A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
Ch. 776.013(3) Laws of Fla.. This Florida law on its face clearly states that a person who is in a place that he or she has a right to be has no duty to retreat. The law also specifically authorizes the use of deadly force.
Like Florida, Oregon law imposes no duty to retreat when using deadly force in self-defense when outside of the home. Unlike Florida, Oregon’s position on the use of deadly force in selfdefense did not come about through clear legislation. It seems relatively clear what the Florida Legislature had in mind when it passed the “Stand Your Ground” law. However, laws do not always clearly express the intent of the legislature. Oregon passed laws governing the limitations on the use of deadly force in self-defense in 1971. The pertinent section provides:
- 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 161.219. There are obvious differences in the wording of the Oregon law and the Florida law. The Oregon law makes no reference to a “duty to retreat” nor does it use the words: “stand his or her ground.” If just looking at the Oregon statute, knowing when the use of deadly force in self-defense outside of the home is legal does not appear quite as clear compared to the
In 1982, the Oregon Supreme Court had to decide whether Oregon’s use of deadly force in selfdefense law imposed a duty to retreat when outside of the home. Citing previous case law, the Court noted: “(a)ny civilized system of law recognizes the supreme value of human life, and excuses or justifies its taking only in cases of absolute necessity.” State v. Charles, 293 Or. 273, 281 (1982) abrogated by State v. Sandoval, 342 Or. 506 (2007). The Court ultimately decided that Oregon law imposed a “duty to retreat” when outside of the home, thus relegating the use of deadly force in self-defense only when there is no reasonable opportunity to escape. State v. Charles, 293 Or. 273 (1982). For 25 years, this was the rule in Oregon. If you kill in self defense outside of your home, you better not have been able to avoid the killing.
In 2007, the Oregon Supreme Court reversed itself stating that the analysis in Charles was, “distinctly odd.” To determine whether Oregon law imposed a duty to retreat, the Court looked only at the language of the statute. It concluded that: “the legislature’s intent is clear on the face of ORS 161.219: 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. Sandoval, 342 Or. 506, 513-14, (2007). This seems like a bold statement from the Oregon Supreme Court seeing how in the previous 25 years the law was the inverse. The Oregon statute does not make the intent of the legislature nearly as clear as Florida’s “Stand Your Ground” law. Furthermore, the Oregon Supreme Court’s decision in 2007 ignores its previous recognition that “any civilized system of law recognizes the supreme value of human life, and excuses or justifies its taking only in cases of absolute necessity.” Are we to infer that Oregon is no longer a civilized system of law? Perhaps the state of Oregon no longer recognizes the supreme value of human life.
Whether you support or oppose the use of deadly force in self-defense, the Oregon Supreme Court says you have no duty to retreat outside of your home. Is the Oregon Supreme Court’s interpretation of ORS 161.219 the correct interpretation? It has been 41 years since the Oregon legislature passed ORS 161.219. For at least 25 years it has required a duty to retreat, and for the last seven it has not. Perhaps the Oregon legislature should consider revisiting and clarifying ORS 161.219.