Guns, Ground and Self-Defense

Be reasonable.

That’s good advice in most situations. It’s also the key idea behind any self-defense case.  

“Most states’ self-defense laws, be they ‘stand your ground’ or not ‘stand your ground,’ are really not that dissimilar,” says Portland criminal defense lawyer Janet Hoffman. “The standards that we already have in place require that the force be reasonable, and that your perceptions of [the threat of] serious physical injury or death be reasonable before you use deadly force.”

That’s what happened in the George Zimmerman case in Florida, which was the first of 23 states to pass “stand your ground” laws since 2005. The law essentially extends the so-called “castle doctrine,” which allows people to defend themselves in their own homes, beyond the castle. 

There’s no such “stand your ground” law here. “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. 

Thanks to the 2007 State of Oregon v. Sandoval ruling by the state Supreme Court, Oregon doesn’t require a “duty to retreat,” either. Eighteen states do have a duty to retreat—that is, they require an attempt to escape an encounter before the use of deadly force. 

At first glance, it appears that a decision to retreat might cut down on deadly confrontations; but as Eugene criminal defense lawyer Terri Wood points out, the time for seeking alternative actions is usually long gone when someone is in imminent danger of dying. “You’re not required to do an extensive investigation when you’re in what you think is a life-threatening situation,” she says.

“Imminent means it’s about to happen,” adds Hugh Duvall, a criminal defense lawyer in Eugene. “You’re about to be shot, you’re about to be struck in the head with a pipe, the bad guy’s about to grab you and drag you into his car.”

But to defend your actions of self-defense, you’d better be able to show that you were being reasonable. “If I come at you with a feather duster and you respond with a gun,” says Ludwig, “you’d have to do a lot of convincing to get a jury to agree that the response with a gun to a feather duster was proportional.”

Duvall says when he evaluates whether a self-defense defense could be successful, he looks for what he calls atmospherics. “Every little detail counts,” he explains. “You look at the big picture, including who the people are, how old they are, their physical abilities, where this encounter is occurring, what circumstances would give rise to someone being afraid or not being afraid.”

In Oregon, where about one in 16 residents has a concealed weapons permit, fear of imminent danger may arise from something innocuous. “If someone makes a sudden move to a fanny pack, they may be reaching for the cellphone to call 911, or they may be reaching for their concealed weapon,” says Hoffman. “All of these things are taken into consideration for a person’s reasonable perception.”

She adds, “My concern is that many people may be armed, and we don’t know who’s armed or not armed.”