- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Procedure
- Date Filed: 08-26-2015
- Case #: A142341
- Judge(s)/Court Below: Ortega, P.J. for the Court; Sercombe, J.; & DeVore, J.
- Full Text Opinion
On remand from the Oregon Supreme Court, the Court addressed whether the trial court had plainly erred in its instruction of lawful use of self-defense against police officers during an arrest, and if so, whether the Court should exercise its discretion to remand the case for another trial. Defendant was arrested while dressed in a “hazmat” suit and spraying water from a can labeled “poison” while protesting against pesticides walking in the street through traffic. Eugene Police Department Officer Solesbee confronted Defendant, who responded by lifting the sprayer, and asking Solesbee something to the effect of “Would you want to be sprayed in the face with poison?” Though Solesbee did not believe that the sprayer actually contained poison, Solesbee decided to arrest Defendant. With assistance from two other officers, Solesbee slammed Defendant face-down to the ground, and attempted to handcuff Defendant. Defendant resisted, and tried to pull away from the officers, and, while still on the ground, was tased twice for five-second intervals. At trial, the court denied Defendant’s suggested jury instruction, and used UCrJI 1227 to instruct the jury on when a Defendant may use reasonable defensive force against officers while being arrested. UCrJI 1227 focuses both on the officer’s reasonable belief for the use of force, as well as the defendant’s reasonable belief of unlawful use of force. On appeal, Defendant argued that the trial court had plainly erred by using UCrJI 1227 because it was ambiguous and an improper statement of law. The Supreme Court agreed, and remanded this case to determine whether the plain error was sufficient for remand. The Court determined that the gravity of the error may have changed the outcome of the case, and therefore the case was proper for reversal and remand for a new trial. Reversed and remanded.