Saturday, March 31, 2007

Oregon Supreme Court Affirms "No Duty to Retreat"

The Castle Doctrine has gotten a lot of attention in recent weeks. It’s the radical idea that when faced with a threat to one’s life in one’s own home, that you have “no duty to retreat”. Many states had laws on the books that stated, or Court opinions that had ruled, that a citizen first had the “duty to retreat” when faced with deadly force. In recent months these laws and decisions have come under increasing pressure.

Florida passed a law specifically stating that a citizen had no duty to retreat, and Texas has recently followed suit. Critics call these “shoot to kill” bills, but the right of self defense has been spelled out in many state Constitutions.

Oregon has gone another route, while there have been several bills introduced in the State Legislature to bring the Castle Doctrine to Oregon, none have made it very far. However, the Oregon Supreme Court recently made the point moot when they ruled that existing Oregon law did not include a “duty to retreat”:

In their decision, State of Oregon v. Sandoval, the Supreme Court correctly notes that Oregon law contains no requirement to retreat from an attacker and that previous rulings to the contrary are not only incorrect, but obviously so,

The Court noted "On a purely textual level, ORS 161.219 contains no specific reference to "retreat", "escape," or "other means of avoiding" a deadly confrontation. Neither, in our view, does it contain any other wording that would suggest a duty of that kind."

It went on to describe a previous Supreme Court ruling this way: "The court's analysis did not focus on or even consider the words of the statutes that we now recognize to be pivotal." and "We conclude, in short, 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."

The Supreme Court points out "Indeed, the entire analytical flow of the Charles opinion is distinctly odd: The court did not examine the wording of either ORS 161.209 or 161.219 at all... Instead, the court set out the wording that the Oregon Criminal Law Commission had proposed to the legislature regarding the use of deadly force as part of the final draft of the proposed 1971 Criminal Code, which wording explicitly imposed a duty of retreat to avoid the necessity of using deadly force. Then, after noting that the 1971 legislature had rejected that wording, the court cited a view expressed in the Oregon Criminal Law Commission's Commentary to the 1971 Code to the effect that "the statute probably was not necessary" because of existing Oregon case law.."

This ruling is completely consistent with the Oregon Constitution Section 27:

"Section 27. Right to bear arms; military subordinate to civil power. The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power"

It's encouracing to see so many recent Court cases truly look at the law and respective Constitutions as opposed to the justices making it up as they go along!

Until next time!

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