2007 ORS § 161.219¹

Limitations on use of deadly physical force in defense of a person

Notwithstanding the provisions of ORS 161.209 (Use of physical force in defense of a person), a person is not justified in using deadly physical force upon another person unless the person reasonably believes that the other person is:

(1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or

(2) Committing or attempting to commit a burglary in a dwelling; or

(3) Using or about to use unlawful deadly physical force against a person. [1971 c.743 §23]

Notes of Decisions

Since the legislature's inten­tion in enacting this sec­tion and ORS 161.225 (Use of physical force in defense of premises) (2) was to codify the common law of self-de­fense and not to articulate a new standard, the statutory phrases requiring that there be a "felony involving the use or threatened imminent use of physical force against a per­son," "unlawful deadly physical force," or a "felony by force and violence" are the func­tional equivalents of the case law require­ment of "great bodily harm." State v. Burns, 15 Or App 552, 516 P2d 748 (1973), Sup Ct review denied

Defendant is entitled to a jury instruc­tion on self-de­fense under either this sec­tion or ORS 161.225 (Use of physical force in defense of premises) (2) if there is evidence in the record that he was in imminent danger of receiving great bodily harm from the other per­son. State v. Burns, 15 Or App 552, 516 P2d 748 (1973), Sup Ct review denied

The fact that defendant produced and threatened to use a firearm in an at­tempt to terminate a crim­i­nal trespass did not deprive him of the right to claim self-de­fense under this sec­tion for the actual use of the firearm which occurred sub­se­quently. State v. Burns, 15 Or App 552, 516 P2d 748 (1973), Sup Ct review denied

Self-de­fense is founded on necessity and, where defendant could avoid threatened danger without sacrificing own safety, he was re­quired to do so; refusal to give instruc­tion that per­son claiming right of self-de­fense is not re­quired to retreat before using deadly physical force against assailant was not error. State v. Charles, 293 Or 273, 647 P2d 897 (1982). But see State v. Sandoval, 342 Or 506, 156 P3d 60 (2007)

Duty to retreat imposed under this sec­tion does not extend to police of­fi­cers performing their official func­tion. Reed v. Hoy, 891 F2d 1421 (9th Cir 1989)

Even when one or more of threatening circumstances de­scribed in this statute is present, use of deadly force is justified only if it does not exceed "de­gree of force which per­son reasonably believes to be necessary" under ORS 161.209 (Use of physical force in defense of a person). State v. Haro, 117 Or App 147, 843 P2d 966 (1992), Sup Ct review denied

Person is not re­quired to retreat before using deadly physical force to defend against imminent use of deadly physical force by an­oth­er. State v. Sandoval, 342 Or 506, 156 P3d 60 (2007)

Law Review Cita­tions

51 OLR 579-587 (1972)

Notes of Decisions

Under Former Similar Statute (ORS 163.110)

There were cases where self-de­fense would not be a de­fense but the right to self-de­fense was still available to es­tab­lish that the defendant was engaged in a lawful act at the time of the killing. State v. Leos, 7 Or App 211, 490 P2d 521 (1971)

Chapter 161

Notes of Decisions

A juvenile court adjudica­tion of whether or not a child committed acts which would be a crim­i­nal viola­tion if committed by an adult must necessarily include an adjudica­tion of all af­firm­a­tive de­fenses that would be available to an adult being tried for the same crim­i­nal viola­tion. State ex rel Juvenile Dept. v. L. J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Cita­tions

2 EL 237 (1971); 51 OLR 427-637 (1972)


1 Legislative Counsel Committee, CHAPTER 161—General Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­161.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­161ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.