Bicycles & The Law: SELF-DEFENSE FOR BICYCLISTS


Our law firm has represented bicycle riders in legal cases since 1981. We are advocates for bicyclists’ rights to the roads and trails. We volunteer our time to help educate bike riders about their legal rights, and combat harassment by motorists. Our website is designed to provide useful articles and information for bicyclists. Below is a featured article from one of our attorneys.

Sometimes, in spite of everyone’s best efforts, a situation can get out of hand which results in personal danger. The best advice for bicyclists is to avoid confrontation or call police. However, sometimes circumstances do not allow an opportunity to retreat or call for help. Some basic knowledge about the law of self-defense may provide a helpful guideline in these circumstances, and it is good to know that Oregon law provides a citizen with the right of self-defense and a sound, time-proven legal framework that takes escalating danger into account. It is unfortunate that some folks who do not take the time to educate themselves about self-defense law try to make themselves into self-appointed commentators about unreasonable government restriction on self-defense; few subject areas include as much misinformation as is found on certain radio talk shows and Internet discussions as the right of a citizen to use force in their own defense. Experience in application of the law of self-defense is best avoided; popular misconceptions abound, and, like home remedies for a toothache, it is best to never be placed in a position where you have to learn the ropes.

Some critics argue that Oregon’s law of self-defense is not sufficiently protective of innocent civilians. This is an incorrect assessment because Oregon’s law of self-defense takes the facts and circumstances of every incident into account in its requirement that citizens follow the standard of “reasonable” behavior. When the Oregon Legislature enacted the Oregon Criminal Code in 1971, self-defense law codified previous common law and appellate case holdings. Current law is based upon a long history of prior study and well considered applications.

SELF-DEFENSE WITH LESS THAN DEADLY PHYSICAL FORCE

Oregon allows a person to use non-deadly physical force for self-defense or in defense of a third person from what the person reasonably believes is the “use, or imminent use, of unlawful physical force.” The degree of physical force that may be used is limited to the degree of force believed reasonably necessary to rebuff or contain the other person; if it turns out later that some mistake was made, (so long as it was reasonable) then the protection of the law remains applicable. However, if the person who claims the right to use self-defense provoked the other person with the intent of causing injury, or if the person seeking self-defense protection was the initial aggressor, the defense is unavailable unless the provocateur withdraws from the encounter and effectively communicates that withdrawal to the other person.

Even if there is no threat of violence, certain actions create legal justification for the use of non-deadly force. For example, if the defender is attempting to prevent or end another person’s trespass or to prevent or end a theft or criminal mischief, then use of physical force is justified.

DEADLY PHYSICAL FORCE

“Deadly physical force” (defined as “force readily capable of causing death or serious physical injury”) is only lawful when it is used against a person reasonably believed to be attempting to commit a felony involving the threatened or imminent use of physical force against a person, or to defend against a burglary in a dwelling. A dwelling is a place where someone lives and sleeps. Oregon law restricts the use of deadly physical force to situations where it is unavoidable and there is no reasonable way to escape the conflict, which is sometimes referred to as “the necessity rule.”

While every citizen has the duty to attempt to avoid a conflict, there are circumstances where a person need not retreat, such as if the defender is in their dwelling or place of business, or if retreat would create a further safety risk. Most applications of deadly physical force involve an emergency and eventual involvement of law enforcement. Later, the individual facts of each case are weighed under the law in order to assess the gravity of the threat. Sensationalized news accounts about homeowners charged with assault, or robbery victims who have been charged with a crime after they have shot their assailants, inevitably involve a set of facts where there was a clear opportunity to avoid hurting someone and the use of force was no longer justified by the circumstances. Recent examples include situations where a homeowner shoots a car prowler when the car prowler is running away from the scene or when a street robbery victim chases and then shoots the person who has just stolen a purse or wallet; in each case the necessity for use of deadly force is examined; was it out of proportion to the level of danger faced by the shooters? It is unfortunate that some “right to bear arms” or “individual liberty” special interest groups capitalize upon citizen fears of violent assault and home invasion. If Oregon law is examined carefully, the idea that citizens may use any level of force necessary under the circumstances is powerful, reasonable and flexible. Ultimately, it is up to a jury in a courtroom to weigh all the facts and apply the law. The claim that citizens are routinely punished by the law for reasonable efforts at self defense is almost always someone’s bid for attention and does not hold up under careful scrutiny.

RESISTING ARREST

A citizen’s right to resist arrest is extremely limited. Important policy reasons involving personal safety and avoiding public violence prohibit a person from resisting arrest by a person known to be a peace officer, whether the arrest is lawful or unlawful.

However, if a police officer uses excessive force in making an arrest, then the citizen has a right to use physical force in self-defense, but not to resist the arrest itself. In other words, if police are using excessive force then a citizen is entitled to protect him or her self from harm, and this right of self-protection trumps a police officer’s right to make the arrest of a non-resisting citizen. Unfortunately, the location of the line between lawful and excessive use of force by the arresting officer sometimes moves considerably during the arrest process. Police officers are trained to take a person into custody without hurting them so long as the person is not resisting the arrest process. However, cases of excessive force do not usually occur in a laboratory environment and it is difficult to measure when sufficient excessiveness is involved so as to justify resistance. In most instances, the citizen is charged with the underlying offense as well as the misdemeanor of Resisting Arrest; later at their trial, the citizen is then entitled to put on proof about the use of excessive force and to have the jury instructed about the right to defend against excessive force during an arrest.

Hopefully, a basic knowledge of the principles of self defense will never be needed. However, escalating circumstances on the street create leave within the law to take reasonable and sometimes even deadly steps in response.