Most people are aware that self-defense is a defense to criminal charges, and the recent arrest of a Gresham man for shooting at fleeing suspects reminded most Oregonians that there are limits to what force can be used. Self-defense, or defending others, can also be a defense to a civil lawsuit for assault and battery, and sometimes, so can defense of property.
In criminal law, the concepts of assault and battery have been merged under the statutes and are generally called assault of varying degrees. For civil purposes, they are not. Basically, the idea is that if you swing and miss, you can be sued for assault, and if you swing and hit, you can be sued for battery. In both cases, the defendant actually has to intend to either hit or frighten someone. Battery also encompasses the sexual assaults that have been the basis of suits against churches, the Boy Scouts, and similar institutions in recent years; the assailants committed battery, and the institutions generally have been found negligent for failing to prevent it once they had fair warning.
In theory, a person who commits a criminal assault also would be liable for assault or battery in a civil case, but because most criminal defendants do not have anything to collect, they are rarely sued. It does, however, happen. Business that may attract unruly customers, such as bars and restaurants, probably are more likely to have problems than others, but homeowners also could be at risk, particularly in states that have relatively modest protections against judgment creditors, including Oregon and Washington.
It is also possible to sue someone for assault or battery without a criminal prosecution. The burden of proof is lower, which is why O.J. Simpson could be sued after being found not guilty of murder. Self-defense will sometimes be raised as a defense to a suit for assault or battery. This tends to happen when the underlying incident was a fight or if the defendant felt threatened by the plaintiff.
In Oregon, the law says generally that the criminal laws do not automatically set the standards for civil liability, and there is at least one case in which the court has ruled that it is possible to be liable civilly for assault or battery without committing a crime. In many assault and battery cases, however, the courts seem to apply the same standards, and I think that except in unusual situations, following the standards from the criminal laws are probably enough to avoid civil liability. Washington has only a few published civil cases, so most of the understanding of the law is drawn from the criminal cases, and there probably is not much of a difference between the civil and criminal standards.
With a few exceptions, Oregon and Washington have similar rules for self-defense. The general idea of what force is permitted in self-defense is “don’t do more than what’s reasonably necessary.” You must actually believe that you are threatened. You are allowed to be mistaken whether the other person is, in fact, threatening you or attacking you, but your mistake has to be a reasonable one. “He looked at me funny” isn’t enough, and neither is an invitation to step outside. Waiting for someone to strike first is not required if it appears that he or she is about to, but it has to be a threat of violence instead of an insult, and the level of force used must be of the same level threatened. Application of this standard, however, can be complicated. Often, the details of the incident, which the parties may dispute, will make the question of whether there is a real threat hard to decide.
The first major exception is the “first aggressor” rule. If you start the fight, you can’t claim self-defense if the other person uses the same level of force you do. If, however, the other person escalates to deadly force, you can use deadly force to defend yourself. This commonly leads to cases in which both parties will say “he started it.” Oregon appears to allow an “it’s over” exception to the “first aggressor” rule. Basically, self-defense doesn’t apply if you hit someone after they’re down. It’s not as clear where Washington stands on this issue. A variant on the “first aggressor” rule is the “no duelling” rule. Stepping outside when invited is not a self-defense situation. As always, if you are uncertain about your situation, you may want to talk to a lawyer, and be ready to hear that what you think happened isn’t always going to be what a judge or jury would think happened.
The second major exception applies in Oregon, but not Washington. In Oregon, if you can safely retreat from a fight involving deadly force, you are required to do so and may not defend yourself unless you can’t get away. Washington allows you to stand your ground if you have a right to be there.
Deadly force is generally self-explanatory. If someone could be expected to be killed, the force is deadly. This includes guns, knives, clubs, and similar weapons. Steel-toed boots might qualify, and there is one case in Oregon that appears to suggest that a heavyweight boxer’s punches might be considered deadly.
The courts in Oregon and Washington appear to have disagreed as to whether threatening deadly force is the use of deadly force itself. In Oregon, it is not. You are allowed to warn someone with a weapon when nondeadly force is appropriate. On the other hand, that warning will, as seen below, justify the other person’s use of deadly force, so you’d be taking a big risk if the other person is armed. In Washington, the courts appear to lean toward saying that pointing an unloaded gun is the use of deadly force. If you get into a situation like this (and don’t get shot), you probably will want to talk to a lawyer.
There are only a few circumstances in which deadly force may be used. First, if faced with deadly force, you may use deadly force to defend yourself. Second, in Oregon, you can use deadly force to stop a felony in which the suspect is using or threatening immediate use of force, deadly or nondeadly. In Washington, deadly force can be used to stop a felony against you, or committed in your presence.
The third exception to the use of deadly force often raises questions: What about burglars and prowlers? Oregon allows deadly force to stop a burglar in a house. Washington allows deadly force to stop either burglary or arson in a residence or another felony in a residence, if committed against a person or in the presence of the person using deadly force. Neither Oregon nor Washington allow deadly force to remove nonviolent trespassers or stop nonviolent thieves.
One problem that has caused occasional arguments is the use of traps. A trap can’t tell who trips it, so they’re generally not allowed. Some very large judgments, including punitive damages, have been awarded in other states.
In general, a third person may be defended by force for the same reasons you can use force to defend yourself. You can’t, however, use more force to defend a third person than you would be allowed to use to protect yourself.
In general, if you find yourself in a situation where you had to use force to defend yourself, and you think you may get sued, you probably want to discuss it with a lawyer. Be ready to tell the full story and expect to answer questions about how it looked from both sides. Don’t expect a clear-cut answer. Many of these cases will turn on whose story is believed.