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Legal Briefs: Persons Arrested Can Assert Right of Self-Defense in Resisting Arrest In State v. Oliphant, the Oregon Supreme Court ruled that the right of self-defense, set out in ORS 161.209, is available to persons being placed under arrest. If the person being arrested reasonably believes the arresting officer is using unlawful physical force, then they have a right to use force in self defense. A case which started out as a simple case of jaywalking escalated unnecessarily into the arrest of three people*. Officer Eric Gulbranson of Toledo, OR confronted Francisca Rilatos, a woman he suspected of jaywalking. While Rilatos and Gulbranson began a verbal battle, her boyfriend Kenneth Wood entered the fray and approached within three to four feet of the officer. Gulbranson then sought to arrest Wood for interfering with a police officer. Gulbranson ordered Wood to the ground, then put his knee on the Wood's back and ordered him to put his hands behind his back. After Wood failed to comply with the officer's command, Gulbranson fired pepper spray into Wood's face from somewhere between 6 to 12 inches away. Wood started thrashing about, and Gulbranson delivered eight "focused blows" to Wood's back and ribs. Wood was charged with assaulting an officer, interfering with an officer, and resisting arrest. The trial court refused to instruct the jury on the right of self-defense and instead instructed them on an officer's right to use force under ORS 161.235 and .239. The Oregon Supreme Court reversed the trial court (and the Court of Appeals), ruling that the right of self-defense applies even in an arrest situation. Therefore, the jury should have been allowed to consider if Wood reasonably believed that the officer was using unlawful force. Under the circumstances of the case, it was not difficult for the Court to reason that the jury could have found that the officer had used excessive, unlawful force from which the defendant had a right to defend himself.
*- Jessica Oliphant, Rilatos' mother, was shoved by backup
Officer Miller and arrested in the same incident.
The court rulings referenced here and in our Taser article caused concern among Portland's rank and file. In the December Rap Sheet, Officer Cody Berne of NE wrote about the "Dangerous decision" by the Oregon Supreme Court. Berne states that Kenneth Wood, who was thrown to the ground, pepper sprayed and beaten by Toledo Officer Gulbranson, got up and "wrapped his arm around" the cop's waist, forcing him against rocks and causing injury to his hip and thumb. Berne probably meant to disparage Wood's behavior‹behavior the Court ruled was legal given the circum-stances. Berne says "in all but extreme cases, willingness to fight the police is inherently unreasonable." That makes sense given the likely consequences, but not under the law. Berne says alcohol, drugs, anger and mental illness lead to violence, and the Court's decision empowers unreasonable people to justify injuring cops. Berne says that Wood "Provoked police to violence." He thinks the Court underestimates the ability of suspects to harm officers. Interactions with police are "Not meant to be fair‹officers must win every single time," he says. Cops accept that their jobs involve risk, but it is different from "firefighters, loggers or other blue collar professions" because criminals are controllable unlike burning timbers. Berne worries that a suspect held at gunpoint who thinks the officer is unreasonable will be allowed to shoot in self defense, which is a good point‹officers should not point their guns at people if it is not necessary.
In the January issue, editor Pete Simpson objected to the narrowing of the use of Tasers by the
Ninth Circuit, touting Tasers' effectiveness. "Injuries are very low and compliance is high. Does
it hurt? Yes, but when it's over, it's over." He contrasts this with pepper spray: "Pepper is the
gift that keeps giving and can adversely affect the police officer trying to make an arrest."
Simpson raises an interesting dilemma, suggesting that Taser use can be within the Ninth Circuit
ruling but a citizen believing it to be excessive can resist under the Oregon Supreme Court ruling.
Unlikely, he says, but it "could happen in the Republic of Portland."
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May, 2010
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People's Police Report
#50 Table of Contents
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