Pointing a Firearm is Not Use of Deadly Force

by: Ryan Scott • December 4, 2023 • no comments

More than once, I've had cases where the defendant was charged with unlawful use of a weapon for pointing a firearm at a trespasser. The prosecutor initially believed that even if the defendant reasonably believed he was acting in defense of his property, his actions were unlawful because you cannot use deadly force to protect property.

You may already see the problem. Threatening the use of deadly force is not the actual use of deadly force. Consequently, the limitation on defense of property -- you can't use deadly force -- does not apply when the deadly force is merely threatened.

Don't take my word for it.

Pointing a firearm at someone does not constitute the use of deadly force. State v. Burns, 15 Or App 552, 562, 516 P2d 748 (1973)(With respect to self defense, and limitations on the use of self defense, "the threat of deadly force does not constitute the use of deadly physical force."); State v. Taylor, 182 Or App. 243, 48 P3d 182 (2002)

Consequently, when a defendant has merely pointed a firearm, and is claiming self-defense, it is error to instruct the jury on the “limitations of use of deadly force.” Taylor, 182 Or App at 248 (“We further conclude, under Burns, that the trial court erred in giving the instruction because there was no evidence that defendant actually used deadly physical force.”

In Taylor, a firearm was pointed but not discharged. The defendant claimed self-defense. The jury was instructed on the limitations of deadly force. As in Taylor, giving the instruction was error.

The Taylor court also found the error was not harmless. It agreed with defendant’s argument, which it quoted as follows:

"By giving an instruction about the use of deadly physical force, the trial court suggested to the jury that it could find defendant had used such force, when, legally, it could not. This could have confused the jury and prejudiced defendant. If the jury improperly found that defendant had used deadly physical force, it would have assessed the legality of his actions in light of the limitations on the use of such force. It would have subjected defendant's actions to a more stringent test to determine whether they were legally justified."

Taylor, 182 Or App At 248.

Anyway, I mention this, because this particular error may not be common, but they do happen, and I'm guessing I'm not the only defense attorney who's had a client in that situation.