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The Limits of Defending Property During a Crisis

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September’s contribution to the worst year ever comes in the form of wildfires that turn the skies of the American west coast orange and red. Certain Oregon residents are making evaluations more difficult than they have to be by stopping unfamiliar drivers at gunpoint.

Most of Clackamas County, Oregon is under an evacuation order due to the proximity of wildfires. However, some residents refuse to evacuate and are staying to “defend” their property. Some residents have created homemade signs with wire fences warning looters that they may be shot. Clackamas County Sheriff Craig Roberts reports that several people attempting to “protect property” are setting up armed checkpoints. The “checkpoints” do not have the support or backing of county law enforcement and are illegal.

Residents are behaving erratically as some local officials believe that “Antifa” are armed with chainsaws and starting fires by cutting down telephone phones in order to loot homes. The FBI’s Portland office put out a statement that “reports that extremists are setting wildfires in Oregon are untrue.” Adjacent Oregon Sheriff offices have also debunked reports that Antifa is involved. Nevertheless, makeshift signs that “looters will be shot” dot the landscape amid the yellow hazy skies.

Limits of Defending Property

Assaulting People in Vehicles

There have been various complaints that protestors of police brutality have surrounded vehicles and demanded that they exit the vehicle for unknown purposes. These complaints have been compared with the situation in Oregon where people afraid of Antifa pull firearms on people in vehicles and threaten them. While people from both sides of the political spectrum argue over who is worse, both situations are in a legal sense the same criminal charge.

Assault is the threat of nonconsensual touching of another person. Assault still applies if the defendant touches the personal property of another that is within the victim’s personal space. Touching a woman’s purse as a means of threatening her person would be considered an assault.

Touching a vehicle in order to intimidate the occupants of the vehicle is arguably a form of assault. The vehicle is part of the victim’s personal space at that moment. There is no difference between a vehicle and a purse if a criminal defendant touches either object with intent to do harm to the person in the vehicle or holding the purse.

Being armed as no bearing on whether an act constitutes assault. However, being armed may be considered an aggravating factor that may increase the potential penalty of a criminal sentence. For instance, instead of serving two years in prison, an aggravating factor may increase a criminal sentence to three years in prison.

Shooting At Random Strangers – Even On Your Own Property – Is a Bad Idea

It may be tempting to assume that every stranger attempting to enter your home is a potential looter or burglar. However, there are many reasons to think twice before firing that weapon. Public officials are required to check homes amid an evacuation order and a large wildfire. It is illegal in many states to set up automatic traps in one’s own home because such traps may endanger the lives of firefighters or police officers who may have to enter a house during an emergency. Similarly, shooting random strangers is ill-advised as that stranger may simply be a firefighter or local sheriff attempting to enforce the evacuation order.

The Reasonable Person Standard

Many jurisdictions will use the “reasonable person” standard in evaluating whether self-defense or defense of property applies to a given situation. The “reasonable person” standard judges the defendant against a template person – a “reasonable person” rather than judge a defendant based on his or her own beliefs.

The rationale should be obvious – some people are easily triggered by very irrational things. Rather than run the risk that such dangerous people may get off on a self-defense argument, the law asks whether a “reasonable” person in the same circumstances would behave the same way.

With regards to these Oregon fires, a jury would be asked to determine whether a reasonable person would believe that unknown Antifa looters were causing these fires. The question is up the jurors, but affirmative defenses such as self-defense puts the burden of proof on the defendant. While the burden of proof is on the prosecution to prove that a defendant actually assaulted or murdered someone, the burden of proof is on the defendant to prove that his or her actions are excusable. If a defendant in these cases cannot prove that it was reasonable to believe that there are Antifa looters about, then he or she loses.

Should I Contact a Lawyer?

Defense of property is an important defense that you can raise when you are faced with a lawsuit and/or criminal charges. However, each state has its own laws regarding the amount of force that is reasonable and whether that doctrine applies in certain circumstances. A local criminal lawyer can advise you of your rights before proceeding.

Jason Cheung

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