At first, Sarah, paralyzed by fear, could do nothing. Eventually she squeaked, “Matt, there's a man in our room.” Her husband, laying next to her, was still asleep.
Matt Keirstead awoke just as the late-night intruder laid on the bed, perpendicular to the couple. Matt began to furiously kick the man and succeeded in knocking the intruder to the floor.
“Ow! Ow! Why does this always happen to me?” Matt remembers the man saying.
It was then that Matt realized that the imposing intruder, who was well over 6-feet tall, was also dead drunk and didn't necessarily intend harm.
“As soon as I knew he wasn't threatening, I knew I wasn't going to need to use force,” Matt says, recalling the disturbing night. “But it crossed my mind. I did think about the 12-gauge.”
After some strong words Matt steered the slurring intruder to the door. He then did what he says he should have done in the first place—he locked the door.
In the case of the Kiersteads, cool heads prevailed. But the result could have been very different if Matt had gone for his gun. And using deadly force may have been justified, according to Oregon’s version of the now controversial stand your ground law and Deschutes District Attorney Patrick Flaherty, given that the intruder was arguably “committing or attempting to commit a burglary in a dwelling.”
This law and others like it around the country are in the spotlight after the shooting of Trayvon Martin, an African-American teenager in Florida. Proponents of these laws say they give people the legal security they need to protect themselves. But critics say they make us all less safe.
Statistics reveal an uptick in the number of justifiable homicides in states with stand your ground laws. Should these people have been shot? We don’t know. But we do know that stand your ground laws embolden gun owners to shoot first and ask questions later, and that many attorneys and gun control advocates are likely to push for Oregon legislators to reconsider the controversial law.
The laws and wording differ from state to state, but in most, save for Vermont, New York, Washington D.C. and a few others, deadly force is allowed when someone is threatened in their own home, a concept known in legalese as the Castle Doctrine.
But the Oregon statute, like Florida’s much debated law, goes even further. It allows a person to meet force with force, even deadly force, outside of the home and does away with the long standing legal notion of a person’s “duty to retreat” when threatened outside one's home—now referred to, famously, as “stand your ground.”
Without a 'duty to retreat' clause, Florida now finds itself at the center of a debate about just how much force is justified following the now infamous shooting of Martin earlier this year by George Zimmerman, a 28-year-old neighborhood watch captain. Zimmerman followed, confronted, and eventually shot an unarmed Martin in Zimmerman’s gated neighborhood, believing the 17-year-old to be “a real suspicious guy.”
Martin was, in fact, returning to his parents’ house after walking to a nearby store during half time of the NBA All-Star game for an Arizona Iced Tea and a pack of Skittles.
In 2005, Florida became the first state to adopt a stand your ground law, one that was backed by the National Rifle Association and the now infamous conservative lobbying organization the American Legislative Exchange Council, or ALEC. The law explicitly states that a citizen “has no duty to retreat and has the right to stand his or her ground.”
Critics, including gun control advocates, of the stand your ground legislation say that while the guidelines around justified self-defense may be clear on paper, the real world operates in shades of gray, where the line between murder and self-defense is often muddied.
Moreover, critics say stand your ground laws are also unnecessary given the common and longstanding self-defense laws, which are almost universally recognized by U.S. courts. While it’s not clear if legislators are willing to take on Oregon’s stand your ground provision when they meet again next year, a number of attorneys and gun control advocates say that now is the time to take another look at Oregon's law.
“I think it's absolutely worth analyzing,” says Pete Castleberry, a criminal defense lawyer in Portland. “Do we want to impose this duty to retreat? You're talking about killing someone. That's a huge question.”
Daniel Vice, senior attorney of the Washington D.C.-based nonprofit Brady Center to Prevent Gun Violence, notes that one's duty to retreat isn't just about running away, it's about one's duty to avoid altercations long before they turn deadly. Oregon law, though, encourages no such thing.
“It's certainly a reminder of Oregon's weak gun laws,” says Vice.
Supporters of Oregon's current law, and the right to carry concealed weapons, however, say the law is as it should be.
“I believe that there are bad people in the world who do bad things,” says Oregon Firearms Federation Executive Director Kevin Starrett. “If you have a duty to run away, that's simply not viable,” in all situations without putting yourself in danger.
“[If I had a duty to retreat] just how far would I have to go?” Starrett asks rhetorically.
Like other concealed carry permit holders, Starrett says that he's always armed. And he's not alone.
According to the Deschutes County Sheriff’s office, there are more than 8,500 permit holders in Deschutes County. Statewide, more than 154,000 Oregonians have concealed carry permits, or about one in every 20 people.
Contrary to what gun rights supporters say, not all of these people have been thoroughly vetted. The Brady Center is quick to point out that both Zimmerman and Jared Lee Loughner, the man who killed six people in Arizona and wounded Representative Gabrielle Giffords, were both legally carrying weapons.
While most states have long had concealed carry permit regulations, the stand your ground law is a relatively new concept. Since the law was first enacted in Florida, state data shows that “justifiable” deaths linked to claims of self-defense are up by more than 200 percent.
This trend has been reflected nationally as well. A 2010 FBI study reports 278 “justifiable homicides.” That’s the highest total the agency has seen in 15 years. There are no statistics on how many, if any, of those incidents might have been avoidable.
While Oregon's current law is less explicit than Florida's, organizations like the NRA and ALEC are continuously mining for states that appear fertile for more forceful laws.
As of January 2012, 30 states already have some version of a Castle Doctrine on the books, while Texas, Oklahoma, Kentucky, Arizona and 13 others now contain versions of the stand your ground law. Closer to home, the Oregon Supreme Court set the current precedent when they interpreted Oregon's law liberally in the 2007 case State v. Sandoval. The justices found that Oregon law makes no specific reference to "retreat," "escape," or "other means of avoiding" a deadly confrontation.
The revised rules of engagement put law enforcement and prosecutors in a precarious position. Deschutes County Sheriff Larry Blanton says the use of deadly force must absolutely be a last resort.
“After they've exhausted all other possibilities to remedy the situation [then deadly force is permissible],” says Blanton, noting that there are plenty of people in Deschutes County with concealed guns.
Oregon law, however, makes it easy to invoke self-defense when dealing with a home intruder.
By some accounts, Matt Keirstead, with no duty to retreat in his own home, might well have been within his rights to reach for his gun that summer night in Bend, even if what happened was more a dim-witted home intrusion than a criminal home invasion.
Sandoval, the gun-toting Oregonian who shot and killed another man, was found not guilty despite the fact that he was in his vehicle at the time of the shooting and arguably could have driven away rather than open fire.
Scenarios such as these frustrate opponents of stand your ground legislation who say that Oregon's self-defense laws make the 95 percent of Oregonians who are not carrying guns less, not more, safe.
“You can engage someone, confront and kill them if you become fearful,” Vice says. “And that's particularly dangerous, especially when combined with laws that allow people to carry guns.”
Why hasn't Oregon done more to protect against vigilantism?
As long as the American Legislative Exchange Council maintains a significant presence in Oregon's political sphere, it's unlikely that there will be any amendments made to Oregon's pro-gun self-defense laws. ALEC, a conservative Washington D.C.-based group that sponsored Florida's stand your ground law, lists one-quarter of Oregon legislators, all of them Republicans, as members.
Among the 22 Oregon ALEC members are Rep. Jason Conger (R-Bend), Rep. Gene Whisnant (R-Sunriver) and Mike McLane (R-Powell Butte).