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Pointing a Firearm is Not Use of Deadly Forceby: 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:
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...A Ballistics Test is a Searchby: Ryan Scott • November 10, 2023 • no comments Assume your client is arrested and his firearm is seized. There wasn't a warrant, just PC to seize the firearm. The police subsequently perform a ballistics test on the firearm and connect the firearm to earlier shootings. In that situation, you absolutely should move to suppress the ballistics test and all evidence that flowed from it. The reasons are as follows: → continue reading...Next 20 Articles Case Reviews
Oregon Court of Appeals, November 29th, 2023by: Rankin Johnson RESTITUTION - Sex abuse evaluations FREE SPEECH AND EXPRESSION - Conduct during expressive activity Oregon Court of Appeals, November 8th, 2023by: 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 Oregon Court of Appeals, October 25th, 2023by: Rankin Johnson JUVENILE DELINQUENCY - Burden of proof CIVIL COMMITMENT - Firearm limitations SEARCH AND SEIZURE - Conduct constituting a stop Oregon Supreme Court, October 19th, 2023by: Rankin Johnson DEFENDANT'S STATEMENTS - Compelling circumstances Oregon Court of Appeals, October 18th, 2023by: Rankin Johnson RESTITUTION - Reasonableness of costs _________________________ |
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