State v. Burney
619 P.2d 1336, 49 Or. App. 529, 1980 Ore. App. LEXIS 3857 (1980)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The 'choice of evils' or necessity defense is available to a defendant charged with being an ex-convict in possession of a firearm when the possession is a necessary emergency measure to avoid an imminent threat of injury.
Facts:
- A friend of the defendant, an ex-convict, left a pistol in the defendant's pickup truck without the defendant's knowledge.
- Weeks later, after winning money playing pool, the defendant was followed from a club by Patrick Griffin, who was carrying a broken cue stick and acting belligerently.
- As the defendant reached his truck in a parking lot, he heard running footsteps and saw Griffin approaching him in a threatening manner.
- Fearing an attack, the defendant reached under the truck's seat for a tire iron but instead found the pistol, which he had not known was there until that moment.
- The defendant pointed the pistol at Griffin's legs and told him to get away, which Griffin did.
- After the threat ended, the defendant tossed the pistol back under the seat of his truck.
- Police, summoned by Griffin, arrived before the defendant could restart his truck.
Procedural Posture:
- The defendant was charged in an Oregon trial court with being an ex-convict in possession of a firearm.
- The defendant was tried in a bench trial, meaning the judge acted as the trier of fact.
- The trial judge, while stating he believed the defendant's account of the events, ruled as a matter of law that the 'choice of evils' defense was not available for this charge.
- The trial court found the defendant guilty.
- The defendant, as the appellant, appealed the conviction to the Court of Appeals of Oregon.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Is the 'choice of evils' defense, as defined by ORS 161.200, available to a defendant charged with being an ex-convict in possession of a firearm under ORS 166.270?
Opinions:
Majority - Gillette, P. J.
Yes. The 'choice of evils' defense is available to those charged with being an ex-convict in possession of a firearm. The statute defining the defense (ORS 161.200) contains no express exception for this offense, and none should be implied, as a person with a prior felony conviction is as entitled to self-defense as any other citizen. The court found that the defendant's initial possession of the firearm to ward off Griffin's imminent attack could be justified under this defense. However, the justification for possessing the weapon ends when the threat subsides. A question of fact remained as to whether the defendant's continued possession after Griffin left was reasonable, specifically concerning his intent for the weapon. Because the evidence on this point was not conclusive, the case must be retried to allow a trier of fact to determine if the defendant had a reasonable opportunity to divest himself of the weapon in a safe manner.
Analysis:
This decision establishes that a status-based offense, such as being a felon in possession of a firearm, is not a strict liability crime and can be subject to the affirmative defense of necessity. It affirms the principle that the right to self-preservation from imminent harm can temporarily excuse conduct that is otherwise illegal. The ruling creates a two-part inquiry for future cases: first, whether the initial possession was justified by an imminent threat, and second, whether the defendant's continued possession after the threat ceased was justifiable, pending a reasonable opportunity to lawfully dispose of the weapon. This adds a crucial temporal element to the application of the necessity defense in possession cases.
