Self-Defense can be based on Prior physical violence between the parties

The right to self-defense seems to be perennially under attack, no pun intended.  The continuing issue seems to be, “When is it OK to fight back, and how much can you fight back?”  Oregon law requires you to attempt to retreat before using force, provided it is safe to do so, but only if you are not in your home.

But what if someone has been attacking you over the course of a few days?  Do you have to retreat before assuming they are going to seriously assault you if they start something in a public place? The trial court in State v. Beisser, A148833 (August 28, 2013), said that where the victim of assault had dumped the defendant’s cleaning bucket in the mud and started pushing the defendant, the defendant could not introduce several days’ worth of prior altercations to show that he was in reasonable fear for his safety when he beat the tar out of the victim.  Instead, the trial court found that the jury could only consider the actual incident leading to the defendant’s arrest in determining whether self-defense was appropriate.  Looking at the offers of proof, it’s hard to see how the trial court reached that conclusion.

First, the “victim” in the case, Beisser’s roommate named Saner, had gotten drunk a few days before and exploded at Beisser, yelling at him about bringing home a TV and setting it up to watch in the living room.  Hardly a rational response.  But the second incident really informs the self-defense analysis.  A few days after the TV incident, Beisser was taking a bath, and Saner went into the bathroom (according to Saner, because Beisser’s radio was too loud), and when Beisser tried to get out of the bath, another roommate said that he saw Saner shoving Beisser under the water three times.  Hardly just a “frank exchange of differing viewpoints” as the euphemism goes, and made even more threatening by the fact that Beisser was taking a bath.  Beisser broke his toe in that encounter, and had a third party witness (another roommate) to confirm his story about what happened.

So finally, when Saner again began getting in Beisser’s face and provoking him about the bucket, Beisser went on the attack.  Beisser only got to tell the jury that “Saner did not make any verbal threats and was not pushing hard enough to knock him down, but that Saner was taunting and shoving him.”  Slip Op. at 6.  So apparently Beisser went to town on Saner, and Saner came out of the fight worse for wear (and filed charges).

How about if that person came into the bathroom when you were taking a bath, started yelling at you, and shoving you under the water a few times when you tried to get out?  The next time you saw that person and they started to get physical, would you assume that nothing was going to happen?  Or would you immediately figure, “here we go again” and try to defend yourself before he got a cheap shot in?  I mean, really, self-defense has to consider the parties’ history with each other.

And the Court of Appeals held exactly that.  The court said that the bathtub dunking and the TV incident were relevant to the claim of self defense during wash bucket incident pursuant to State v. Lunow, 131 Or App 429, 885 P2d 731 (1994).  Slip Op. at 9.  The Court of Appeals also noted that excluding the testimony of the roommate that witnessed the bathtub altercation was error, because allowing an eyewitness to testify to a prior physical altercation was not in any sense improper “bolstering.”  Id. at 10.  Because this evidence would have a substantial effect on a reasonable jury’s view of a self-defense claim, the conviction had to be reversed and remanded for a new trial.  Id. at 11-15.

At least from the Court of Appeals decision, it is difficult to see how the trial court got to the point of excluding this evidence.  Even if the defendant was particularly unsympathetic (and I’m not saying he was or wasn’t–I don’t know), even jerks have the right to defend themselves.  It’s good to see the Court of Appeals affirm the right to self-defense, even where it just looks like simple common sense to do so.

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