OCDLA Library of Defense - Latest Case Reviews

Blog Threatening to Go And Get a Gun: Is That UUW? by: Ryan Scott • December 5, 2023 • no comments If I point a gun at you in a menacing way, that will likely constitute the crime of Unlawful Use of a Weapon, barring any defenses. But what if I tell you that if you don't leave my neighborhood, I'm going to go inside, get a gun, and then come back out and shoot you? Is that UUW? Here's what the Oregon Supreme Said about the subject, when tasked with deciding whether the "use" in UUW encompassed threatening someone with a firearm. The problem with both arguments is that they neglect to distinguish between threatening to use a weapon and using a weapon as a threat. The two are not—or at least, not necessarily—the same. One may threaten to use a weapon without ever touching it, as when, for example, a person says to another, "If you do not give me your money, I will get my gun and shoot you." That does not constitute a current "use" of a weapon, as it is a threat to use it sometime in the future. In contrast, one also may use a weapon as a threat, as when one person points a gun at another and says, "Give me your money." In a sense, that is a threat to use the weapon in the future; there is an implicit warning that, if the money is not forthcoming, the gun will be fired. But—and this is key—it is also a current use of the weapon as a threat. State v. Ziska, 355 Or 799, 808, 334 P3d 964 (2014) 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. It usually takes awhile before issues of first impression start winning. This is the exception. by: Ryan Scott • November 15, 2023 • no comments Everyone knows my favorite legal issues involve arguments that aren't the law . . . yet. I have a personal list of arguments that I promoted that initially met with great resistance from the courts, prosecutors and other defense lawyers. Not all defense lawyers, but a lot. The most common argument I hear is that a number of defense lawyers are concerned that if they argue an issue that isn't firmly rooted in case law, they lose credibility with the judge. I disagree, for any number of reasons, but I've heard the argument enough that I know it's a real thing. But one issue I came up with last year won the first time it was argued and it hasn't stopped. Unfortunately, it's something that -- in many cases -- the state can fix, and they've started doing so. But there are exceptions and often those exceptions arise in cases back from the appeal or PCR, and if properly raised, the issue can substantially undermine the state's case. → continue reading... Next 20 Articles Case Reviews Oregon Court of Appeals, November 29th, 2023 by: Rankin Johnson RESTITUTION - Sex abuse evaluations FREE SPEECH AND EXPRESSION - Conduct during expressive activity → read the full summaries... Oregon Court of Appeals, November 23rd, 2023 by: Rankin Johnson DEFENSES - Sufficiency → read the full summaries... Oregon Supreme Court, November 17th, 2023 by: Rankin Johnson JUVENILE LAW - Discovery → read the full summaries... Oregon Court of Appeals, November 15th, 2023 by: Rankin Johnson - → read the full summaries... Oregon Court of Appeals, November 8th, 2023 by: Rankin Johnson RECKLESS DRIVING - Sufficiency PROBATION CONDITIONS - Polygraphs as probation condition SEX OFFENDER NOTIFICATION - Offense-free time SEX OFFENDER NOTIFICATION - FAILURE TO PERFORM THE DUTIES OF A DRIVER - Premises open to the public → read the full summaries... Oregon Court of Appeals, October 25th, 2023 by: Rankin Johnson JUVENILE DELINQUENCY - Burden of proof CIVIL COMMITMENT - Firearm limitations SEARCH AND SEIZURE - Conduct constituting a stop → read the full summaries... Oregon Supreme Court, October 19th, 2023 by: Rankin Johnson DEFENDANT'S STATEMENTS - Compelling circumstances → read the full summaries... Oregon Court of Appeals, October 18th, 2023 by: Rankin Johnson RESTITUTION - Reasonableness of costs → read the full summaries... _________________________

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