S056404, Opinion — State v. Oliphant

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Argued and submitted April 15, decision of Court of Appeals affirmed in part and
reversed in part; judgment of circuit court reversed with respect to defendant
Wood's convictions for resisting arrest and assaulting a public safety officer;
in all other respects, judgments of circuit court affirmed; Defendant Wood's
case remanded to circuit court for further proceedings October 8, 2009

STATE OF OREGON,
Respondent on Review,
U.

JESSICA LEE OLIPHANT,
fka Jessica Lee Rilatos,
fka Jessica Lee Bayya,
fka Jessica Lee Fairman,
aka Jessica Lee Olson,
Petitioner on Review.
(CC 050245; CA A131381 (Control))

STATE OF OREGON,
Respondent on Review,
v.
FRANCISCA DARLENE RILATOS,
Petitioner on Review.
(CC 050246; CA A131382)
STATE OF OREGON,
Respondent on Review,
v.
KENNETH ROBERT WOOD,
Petitioner on Review.

(CC 050824; CA A131519)
(SC S056404)
(Cases Consolidated)

218 P3d 1281

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CJS, Obstructing Justice or Governmental Administration § 36.

# En Banc

On review from the Court of Appeals .*

Robin A. Jones, Deputy Public Defender, Salem, argued
the cause and filed the brief for petitioners on review. With
her on the brief was Peter Gartlan, Chief Defender, Office of
Public Defense Services.

Tiffany Keast, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. With
her on the brief were John R. Kroger, Attorney General, and
Erika L. Hadlock, Acting Solicitor General.

GILLETTE, J.

The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed with respect to defendant Wood's convictions for
resisting arrest and assaulting a public safety officer. In all
other respects, the judgments of the circuit court are
affirmed. Defendant Wood's case is remanded to the circuit
court for further proceedings.

\* Appeal from Lincoln County Circuit Court, Thomas O. Branford, Judge. 221
Or App 384, 190 P3d 495 (2008).

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# GILLETTE, J.

This criminal case arose out of a jaywalking stop
that degenerated into a mutual affray involving three defen-
dants and two police officers. During the defendants' ensuing
trial for resisting arrest, assaulting a police officer, and other
charges, all the defendants raised the defense of self-defense.
The trial court refused to give a special instruction that the
defendants had requested and gave other instructions to
which the defendants had excepted. The defendants were
convicted of most of the charged offenses. They appealed
their convictions to the Court of Appeals, which affirmed
without opinion. State v. Oliphant, 221 Or App 384, 190 P3d
495 (2008). We allowed defendants' petition for review to con-
sider the parameters of a person's right to use physical force
against a police officer in self-defense during an arrest and
how a jury should be instructed with respect to that self-
defense claim. For the reasons set out below, we reverse in
part and affirm in part the decision of the Court of Appeals
and the judgment of the circuit court, and remand the case to
the circuit court for further proceedings.

Most of the following facts are undisputed, although
their legal significance is much debated. We take our state-
ment primarily from the trial testimony of the police officers
principally involved in the affray and from a transcript of the
recording of the events taken by a patrol car recording device.
When discussing defendants' requested instructions, we view
the facts in the light most favorable to defendants. See
Hernandez v. Barbo Machinery Co., 327 Or 99, 101 n 1, 957
P2d 147 (1998) (court views evidence in the light most favor-
able to the establishment of the facts necessary to require
giving the requested instruction).

On December 21, 2004, sometime before 9:00 p.m.,
Officer Gulbranson was on patrol in Toledo, Oregon, when he
saw defendant Francisca Rilatos enter a crosswalk and start
walking across the street. Gulbranson was acquainted with
Rilatos, who was then 19 years old, five feet, two inches tall,
and known by Gulbranson to have a volatile temper.
Gulbranson testified that he saw Rilatos leave the crosswalk
and walk diagonally to the sidewalk in front of the apartment

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building where she lived, thereby committing the offense of
"improper positioning of a pedestrian in the highway."
Although Gulbranson testified that he had stopped five or six
car lengths before the crosswalk to allow her to cross safely,
Rilatos apparently perceived him to have been speeding
through the crosswalk and began yelling at him to slow down
and shouting profanities at him.1 At that point, Gulbranson
decided to investigate the crime of disorderly conduct. He
contacted the police dispatcher to say that he would be "out
with Cissy Rilatos." Gulbranson also radioed another police
officer, Miller, who also knew Rilatos, requesting "code 3"
backup, which is a call for emergency assistance when an offi-
cer is in dire need of backup because of an injury or threat to
the officer's life.

Gulbranson activated the flashing lights on his
patrol car, which automatically turned on the video and
audio recording devices that captured the events at issue
here. He then got out of the car and called out Rilatos's name,
"Cissy Rilatos." She replied, "I was in the crosswalk," and
continued walking toward her apartment. The officer called
Rilatos's name again and ordered her to "come here," "get
over here," and "get over here right now." Rilatos refused,
shouting, "You know, I was in the crosswalk." Gulbranson
persisted, shouting, "Get over here," to which Rilatos
responded, "Why? You were speeding. I was in the cross-
walk." The verbal exchange continued for several seconds.

At that point, Rilatos's boyfriend, defendant Kenneth
Wood, walked out of the tavern across the street, crossed the
street, and walked down the sidewalk toward where
Gulbranson was standing. Gulbranson turned to Wood and
said, "What can I do for you?" Wood responded with words to
the effect of "I'm just going home." Gulbranson then said,
"How about you stay over there." Wood did not stop walking
and, according to Gulbranson, put his hands up. Wood
approached to within three or four feet of Gulbranson.

1 Other witnesses testified that Gulbranson drove through the crosswalk and,
when Rilatos started shouting, put the patrol car in reverse and stopped near her.
Resolution of this disagreement is not necessary to answer the legal issues pre-
sented by the case.

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Gulbranson decided at that point to arrest Wood for the crime
of interfering with a police officer.2 Gulbranson then pushed
Wood in the chest, grabbed Wood by the neck, and com-
manded, "Get on the ground. Get on the ground. Do it now."
Wood responded, "I didn't do nothing." Gulbranson repeated
his command and Wood again responded, "I didn't do noth-
ing." Wood then complied, lying face down on the ground with
his arms under his body.

Gulbranson, who is six feet, three inches tall and
weighs 260 pounds, then placed his knee and left arm on
Wood's back to prevent him from getting up, while reaching
for his handcuffs with his right hand. Gulbranson repeatedly
shouted, "Get your hands behind your back" and "Do it now,
do it now." Wood, who is five feet, ten inches tall and weighs
between 160 and 180 pounds, did not immediately respond.

Meanwhile, Rilatos continued to shout epithets at
Gulbranson, which, according to Gulbranson's later testi-
mony, was distracting to him. In addition, defendant Jessica
Oliphant, Rilatos's mother, came out of the apartment to see
what was going on, and began shouting as well, telling the
officer to "Knock it off" and that "He's not wanted or
anything." When Wood did not immediately comply with
Gulbranson's order to put his hands behind his back,
Gulbranson decided that he "had to escalate." He grabbed his
can of pepper spray, called "Cap-Stun," and sprayed Wood
directly in the face from a distance of between six and 12
inches. (The Cap-Stun aerosol canister is designed to reach
someone six to eight feet away.) Wood responded to the Cap-
Stun spray by pulling his legs up and thrashing about, and
Rilatos, still shouting at Gulbranson to get off Wood,
advanced toward them. Gulbranson yelled at her to get away
from him, threatened to spray her with the Cap-Stun as well,
and in fact did spray a small burst in her direction.

Miller had arrived by then and had started to deal
with Rilatos and Oliphant. Miller told Rilatos that she was
under arrest, but Rilatos continued walking up the stairs to
her apartment. Miller followed her. Oliphant then stepped

2 Gulbranson testified that Rilatos, who by that time was on the stairs to the
apartment, was in a position of advantage over him and, when he saw Wood cross
the street, he then had to "figure out which was the bigger threat."

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between them and pushed at Miller's chest, saying, "That's
my daughter." Miller responded by shoving Oliphant onto a
nearby bench and yelling at her to get away from him. Miller
told Rilatos to place her hands behind her back and then
attempted to grab her arm as she pulled away. Miller
grabbed Rilatos's jacket instead and pulled on it, splitting the
jacket down the back and pinching Rilatos's arm. Miller then
was able to place Rilatos in handcuffs.

While Miller was dealing with Rilatos and Oliphant,
Gulbranson began delivering "focused blows" to Wood's back
and striking Wood eight times in the ribs, all the while shout-
ing, "Let me see your hands, give me your hands." At the
same time, Oliphant was approaching, shouting, "Please
don't hit him," and "He's not wanted or anything," to which
Gulbranson responded by telling her to go away or she would
be going to jail as well.

By that time, Gulbranson saw that 10 or more peo-
ple had come out of the tavern and onto the street and were
watching the fracas. He managed to place a handcuff onto
Wood's left wrist and looked up to see what Miller was doing.
Wood then got to his feet and, as Gulbranson also struggled
to his feet, Wood wrapped his arms around Gulbranson's
waist. Gulbranson said, "Give me your goddam arm." Wood
forced Gulbranson onto some nearby landscaping rocks,
injuring Gulbranson's hip and causing Gulbranson to sprain
his thumb. Wood was then behind Gulbranson, and, when
Gulbranson looked down, he saw that Wood's hand was
touching the front edge of Gulbranson's holster. Gulbranson
began yelling, "Got a gun! Got a gun!" He and Miller, who, by
that time, had forced Rilatos to walk down the stairs and sit
down on the sidewalk, then ordered Wood to get down and
give them his right arm (as noted, the left was already hand-
cuffed) or "you're going to be hurt real bad here."

Miller ordered Wood to stop resisting and attempted
to prevent Wood from standing again by getting behind him
and pushing his legs aside.3 As he did so, Wood drew his legs
back and, with a sort of mule-kick, kicked Miller in the right

3 Two bystanders testified that Miller kicked Wood while he was on the
ground. One of them also testified that Gulbranson had his knee on Wood's back
and was shoving his face into the rocks during this part of the incident.

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hip with his foot. Miller then began delivering "focused
blows" to Wood's right shoulder. When that proved to be inef-
fective, he struck Wood twice on the brachial nerve,4 which
enabled him to place Wood's right wrist in the handcuff.
Miller then left Wood with Gulbranson and put Rilatos, who
was continuing to scream and stomp toward the officers, in a
patrol car.5 He also placed Oliphant under arrest and put her
in a different patrol car. Officers took Wood to the Toledo
Police Department, where they searched him for weapons,
and then took him to the hospital for treatment of his
injuries.

Wood was charged with two counts of assaulting a
public safety officer (one involving Gulbranson and one
involving Miller), one count of interfering with a police offi-
cer, and one count of resisting arrest.6 Rilatos was charged
with one count of resisting arrest, one count of interfering
with a police officer, and two counts of disorderly conduct.
Oliphant was charged with one count of interfering with a
police officer, one count of disorderly conduct, and one count
of harassment.

Trial of the three defendants was consolidated; all
raised the issue of self-defense. During the trial, defendants
introduced expert testimony concerning the appropriate use
of force by police officers in various situations. One of the
experts testified that the standard to be applied was the
"reasonable officer" standard, i.e., what a reasonable officer
would do in a similar situation. Defendants' experts testified
that Gulbranson's actions, particularly with respect to Wood,
were not reasonable, in light of the fact that-according to
the facts as reported to them -- Wood was not offering more
than static resistance to Gulbranson's commands. The state
also called an expert to testify about an officer's authority to
use force in making an arrest. That expert testified that
Gulbranson's actions with respect to Wood were reasonable,

4 Miller testified that the brachial nerve runs from the neck to the shoulder,
and a focused blow to that nerve is intended to weaken the arm sufficiently to per-
mit the officer to gain control over an individual.

" Even in the patrol car, Rilatos continued to yell profanities and kick at the
windows.

6 Wood also was charged with one count of disorderly conduct, but the trial
court dismissed that count before trial.

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given that Wood presented an "ominous threat" to Gulbranson,
insofar as Wood did not obey Gulbranson's request to "stay
over there," he had his chin lowered as he walked, he
appeared to quicken his pace as he approached Gulbranson,
and Gulbranson knew that Wood had a "reputation" for "vio-
lent and resistive behavior." In addition, Gulbranson and
Miller both testified at length about their thoughts during
the course of the affray.

In his written request for instructions, Wood asked
the court to give the following instructions pertaining to self-
defense: Uniform Criminal Jury Instruction (UCrJI) 1107
("Defense - Physical Force - Defense of Person"), UCrJI 1200
("Definition of 'Resists'"),7 and UCrJI 1227 ("Self-Defense -
Resisting Arrest").8 Rilatos and Oliphant did not include
requests for self-defense instructions in their written
requests. At the conclusion of the trial, all the defendants
requested Special Instruction 101, which was based on word-
ing taken from one of this court's earlier cases dealing with a
defendant's right to use force to defend himself during an
arrest, State v. Wright, 310 Or 430, 799 P2d 642 (1990). That
proposed instruction provided:

"If a peace officer uses excessive force in making an arrest,
the arrestee may use only such physical force as is reason-
ably necessary under the circumstances to defend himself
or herself against the excessive force being used against
him or her."

The trial court declined to give that instruction, stating that,

"as I explained in chambers,[9] ** * although the word
'excessive' is one that is apt in terms of a description of a
person's conduct, legally, I think the standard is that-set
forth in the statute and that's the standard by which a
police officer's conduct needs to be judged. If the jury finds
that the police officer reasonably believed it was necessary
to use whatever level of force he did and the jury believes
that, then the force used is legal.

7 The state also had requested the court to instruct the jury concerning the def-
inition of the word "resists" as provided in UCrJI 1200.

" We discuss and set these instructions out in the text later in this opinion.

9 There is no record of what, specifically, the court discussed with the parties in
chambers.

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"The statute also sets forth limitations on the use of
deadly physical force, and it's that that's the standard. And
if the jury finds that the conduct fit within those permissi-
ble uses, then it's lawful; if they don't, it's not lawful.

"And I don't want to substitute the word 'excessive' as
some kind of undefined, nebulous standard that is different
than what the statute sets forth, that it would become a
subjective reading in a part of a juror's mind of what do they
think is excessive."

All three defendants took exception to the court's refusal to
give that instruction.

The court also explained that it had decided to
instruct the jury about an officer's right to use force by using
instructions based on ORS 161.235 and ORS 161.239, which
describe justification defenses for police officers who have
been charged with crimes arising out of their conduct.10 ORS
161.235 provides:

"Except as provided in ORS 161.239, a peace officer is
justified in using physical force upon another person only
when and to the extent that the peace officer reasonably
believes it necessary:

"(1) To make an arrest or to prevent the escape from
custody of an arrested person unless the peace officer
knows that the arrest is unlawful; or

"(2) For self-defense or to defend a third person from
what the peace officer reasonably believes to be the use or
imminent use of physical force while making or attempting
to make an arrest or while preventing or attempting to pre-
vent an escape."

ORS 161.239 provides:

"(1) Notwithstanding the provisions of ORS 161.235, a
peace officer may use deadly physical force only when the
peace officer reasonably believes that:

"(a) The crime committed by the person was a felony or
an attempt to commit a felony involving the use or threat-
ened imminent use of physical force against a person; or

10 Another statute, ORS 133.235(4), provides, "In order to make an arrest, a
peace officer may use physical force as justifiable under ORS 161.235, 161.239 and
161.245."

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"(b) The crime committed by the person was kidnap-
ping, arson, escape in the first degree, burglary in the first
degree or any attempt to commit such a crime; or

"(c) Regardless of the particular offense which is the
subject of the arrest or attempted escape, the use of deadly
physical force is necessary to defend the peace officer or
another person from the use or threatened imminent use of
deadly physical force; or

"(d) The crime committed by the person was a felony or
an attempt to commit a felony and under the totality of the
circumstances existing at the time and place, the use of
such force is necessary; or

"(e) The officer's life or personal safety is endangered
in the particular circumstances involved.

"(2) Nothing in subsection (1) of this section consti-
tutes justification for reckless or criminally negligent con-
duct by a peace officer amounting to an offense against or
with respect to innocent persons whom the peace officer is
not seeking to arrest or retain in custody."

All three defendants objected to the court's proposed
course of action, pointing out that the officers were not on
trial-the defendants were-and the primary consideration
relevant to the question of the defendants' right to use force
in self-defense was the defendants' reasonable belief in the
necessity of using force, not the officers' belief. All three
defendants argued that instructing the jury on an officer's
justification defense would confuse the jury and wrongly sug-
gest that, if an officer's use of force was lawful, then a defen-
dant would not have the right to defend himself. The court
responded that, as long as the officer reasonably believed
that it was necessary to use the force that he used, then the
force used was legal and, by definition, not excessive. The
court therefore rejected defendants' arguments.

The trial court instructed the jury as follows. With
respect to Wood, the court first reviewed the two charges of
assaulting a public safety officer, explaining the elements of
the first of those offenses, and then giving the uniform
instruction on self-defense:

"With regard to the charge of Assaulting a Public Safety
Officer, the defense of self-defense has been raised by

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Kenneth Wood. A person is justified in using physical force
on another person to defend himself from what he reason-
ably believes to be the use or imminent use of unlawful
physical force. In defending, a person may only use the
degree of force which he reasonably believes to be neces-
sary. The burden of proof is on the State to prove beyond a
reasonable doubt that the defense does not apply."

The court told the jury that the same elements, definitions,
and the defense of self-defense also applied to the second
charge of assaulting a public safety officer.

After instructing the jury on the charge of interfer-
ing with a police officer, the court turned to the charges of
resisting arrest, which had been filed against Wood and
Rilatos. The court instructed the jury as follows:

"Oregon law provides that a person commits the crime
of Resisting Arrest if the person intentionally resists a per-
son known by him or her to be a peace officer in making an
arrest.

"In this case, to establish the crime, the State must
prove beyond a reasonable doubt the three elements-
Lincoln County, Oregon, the date, and that the person
intentionally resisted a person known by him or her to be a
peace officer in making an arrest. Again, here the culpable
mental state alleged is intentionally, and it has the same
definition as I previously gave to you.

"With regard to the charge of Resisting Arrest, if the
defendant knew that the person making the arrest was a
peace officer, whether the arrest was a lawful or an unlaw-
ful arrest is not a defense to the charge of Resisting Arrest.

"A peace officer is justified in using physical force on a
person being arrested when, and to the extent, that he
reasonably believes it necessary to make an arrest and/or-
excuse me, or to prevent the escape from custody of an
arrested person, unless he knows that the arrest is not
lawful.

"The use of deadly physical force by a peace officer is jus-
tified only in the following circumstances-and there are
five when the crime committed by the person being
arrested was a felony or an attempted felony that involved
the use or threatened imminent use of physical force

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against a person; or when the crime committed by the per-
son being arrested was Kidnapping, Arson, First Degree
Escape, First Degree Burglary, or any attempt to commit
one of these offenses; or when, regardless of the offense, it is
necessary to defend the officer or another person from what
he reasonably believed to be the use or threatened use of
deadly physical force; four, when the crime committed by
the other person under arrest was a felony or an attempted
felony and, under the totality of the circumstances existing
at the time and place, the use of deadly physical force is nec-
essary; and fifth, the officer's life or personal safety was
endangered [in] the particular circumstances involved. So
those are the five limits regarding the use of deadly physi-
cal force by a police officer.

"What is deadly physical force? Deadly physical force
means physical force that, under the circumstances in
which it is used, is readily capable of causing death or seri-
ous physical injury.

"What is serious physical injury? Serious physical
injury means a physical injury-which I previously defined
to you-that creates a substantial risk of death, or causes
serious or protracted disfigurement, or causes protracted
impairment of health, or causes protracted loss or impair-
ment of the function of any bodily organ.

"Finally, with regard to the charge of Resisting Arrest,
the [defense of] self-defense has been raised. A peace officer
may use physical force on a person being arrested only when,
and to the extent that the officer reasonably believes it nec-
essary to make an arrest.

"If a person being arrested [physically] opposes an
arresting officer, the officer may use reasonable force to
overcome the opposition. If, however, the officer uses unrea-
sonable physical force to arrest a person who is offering no
unlawful resistance-as I have defined that term for you-
that person may use physical force for self-defense from
what the person reasonably believes to be the use or immi-
nent use of unlawful physical force by the officer. In defend-
ing, the person may only use that degree of force which he
reasonably believes to be necessary. The burden of proof is
on the State to prove beyond a reasonable doubt that this
defense does not apply."

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(Emphasis added.) Notwithstanding the court's suggestion in
the foregoing that it had defined the phrase "unlawful resis-
tance" for the jury, the trial court offered no such definition or
instruction. Moreover, the trial court did not give the jury the
uniform jury instruction defining the term "resist," UCrJI
1200, which both the state and Wood had requested, and
which would have illuminated the concept of "unlawful
resistance." That uniform instruction is based on ORS
162.315(2)(c),11 and provides:

"Resists-use or threatened use of violence, physical force,
or any other means that create a substantial risk of physi-
cal injury to any person and includes, but is not limited to
behavior clearly intended to prevent being taken into cus-
tody by overcoming the actions of the arresting officer. The
behavior does not have to result in actual physical injury to
an officer. Passive resistance does not constitute behavior
intended to prevent being taken into custody."

The trial court did not give a self-defense instruction
with respect to any other offense charged against Rilatos or
any of the charges against Oliphant.

Ultimately, the jury convicted Wood and Rilatos of
all the charged offenses. It convicted Oliphant on the charge
of interfering with a police officer but acquitted her of the
charges of disorderly conduct and harassment. Defendants
filed a combined appeal from their convictions to the Court of
Appeals, assigning error to the trial court's failure to give
their requested special instruction based on Wright and to
the trial court's decision to instruct the jury on the police offi-
cers' justification defense. As noted, the Court of Appeals
affirmed without opinion. In this court, the three defendants
jointly reprise the arguments that they made to the Court of
Appeals.

11 ORS 162.315(2)(c) provides:

" 'Resists' means the use or threatened use of violence, physical force or
any other means that creates a substantial risk of physical injury to any person
and includes, but is not limited to, behavior clearly intended to prevent being
taken into custody by overcoming the actions of the arresting officer. The
behavior does not have to result in actual physical injury to an officer. Passive
resistance does not constitute behavior intended to prevent being taken into
custody."

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As a preliminary matter, we observe that Rilatos and
Oliphant argue, in a vague and general way, that they were
entitled to self-defense instructions with respect to all the
charges against them, but that only Rilatos received a self-
defense instruction, and then only with respect to the charge
of resisting arrest. We easily dispose of those arguments. Nei-
ther Rilatos nor Oliphant requested a self-defense instruc-
tion in their written requests for instructions, and neither
objected to the trial court's failure to give the instruction with
respect to the charges of interfering with a police officer or
disorderly conduct. In addition, as noted, Oliphant was
acquitted of the disorderly conduct and harassment charges.

Furthermore, neither Rilatos nor Oliphant were
entitled to self-defense instructions with respect to the
charges of interfering with a police officer or disorderly con-
duct. A person's right to self-defense is set out in ORS
161.209, which provides:

"Except [in circumstances not present here], a person is
justified in using physical force upon another person for
self-defense or to defend a third person from what the per-
son reasonably believes to be the use or imminent use of
unlawful physical force, and the person may use a degree of
force which the person reasonably believes to be necessary
for the purpose."

As is evident from the plain wording of that statute, the self-
defense justification applies only when the defendant uses
physical force against a person in response to the other per-
son's use or imminent use of force. Oliphant's conviction for
interfering with a police officer was based on evidence that
she stepped between Miller and Rilatos as Miller was
attempting to arrest Rilatos, and then pushed on his chest to
prevent him from following Rilatos. To that point, Miller had
not used force on anyone, nor had he threatened to use force.
Therefore, the evidence did not support a self-defense
instruction for Oliphant and the trial court did not err. See
State v. Shumway, 291 Or 153, 155, 630 P2d 796 (1981) (any
error in trial court's self-defense instruction was harmless
because issue of self-defense was not presented by the evi-
dence); State v. Fuller, 203 Or 608, 611, 280 P2d 980 (1955)
(trial court correctly refused to give self-defense instruction

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where no evidence introduced or offered by defendant would
have raised issue of self-defense).

Similarly, Rilatos's conviction for interfering with a
police officer was based on evidence that she repeatedly
advanced toward the officers as they tried to arrest Wood.
Her disorderly conduct convictions were based on evidence
that she yelled profanities at both officers during the entire
incident and that she kicked the windows of the patrol car
once she had been placed inside it. Those actions on Rilatos's
part involved no use of force against another person. Again,
the evidence did not support self-defense instructions for
Rilatos on those charges and the trial court did not err in fail-
ing to give them.

We turn to what we view as the fundamental issue12
presented in this case: Under what circumstances does a per-
son have a right to use force in self-defense when he or she is
being placed under arrest? Wood13 contends that a defendant
may use force to defend himself against what he reasonably
believes to be an officer's unlawful use of force against him,
whether the officer's use of force actually was unlawful or
not. Because the focus is on the defendant's reasonable belief,
Wood argues, the trial court erred in instructing the jury to
determine whether the officers' use of force was lawful, and to
do so by focusing, inter alia, on the officers' belief in the rea-
sonableness of their actions. The state, by contrast, argues
that, "if an officer uses only lawful force to effect an arrest,
the arrestee may not respond with force, whether or not he
reasonably thinks he is defending himself against unlawful
force." (Emphasis in original.) Those contrasting views aptly
frame the issue.

We begin with first principles: Justification, includ-
ing the justification of self-defense, is a defense. ORS
161.190. That means that, once self-defense has been raised
by a defendant, the state has the burden of disproving it

12 In their combined brief to this court, defendants in general, and Wood in par-
ticular, do not make any argument specifically addressing the self-defense instruc-
tion that the trial court gave respecting the charges against Wood for assaulting a
police officer. We therefore confine our discussion to the issue of a person's right to
self-defense in the context of a charge of resisting arrest.

13 Although all three defendants jointly sought review in this court, for conven-
ience and clarity, we refer in this part of the opinion to Wood because he is the
defendant whose case most clearly raises the issue presented.

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beyond a reasonable doubt. ORS 161.055. As noted, a per-
son's right to self-defense is governed by ORS 161.209, which
provides that a person may use physical force to defend him-
self "from what the person reasonably believes to be the use or
imminent use of unlawful physical force." (Emphasis added.)
The plain wording of the statute thus establishes that, in
general, a person's right to use force in self-defense depends
on the person's own reasonable belief in the necessity for such
action, and not on whether the force used or about to be used
on him actually was unlawful. That interpretation is borne
out by this court's case law. See, e.g., State v. Holbrook, 98 Or
43, 70, 188 P 947 (1920) ("The law [respecting the right to use
force in self-defense] is that the matter must be considered
from the standpoint of a reasonable man in the plight of the
defendants at the time, under all the conditions surrounding
them, as disclosed by the testimony."); State v. Jones, 179 Or
636, 639, 173 P2d 960 (1946) (same). It also is supported by
legislative history. The Commentary to the Proposed Oregon
Criminal Code, Final Draft and Report, sections 22 to 24
(July 1970) (adopting ORS 161.209), quotes with approval
the following statement by this court in State v. Rader, 94 Or
432, 456, 186 P 79 (1919):

"It is not the intent of the assailant which harms the one
he attacks, neither is the latter bound by it nor required to
ascertain it. * * * It is the imminent danger, real or appar-
ent, of great bodily injury to himself which justifies a defen-
dant in protecting himself."

Commentary to sections 22 to 24.

The cases and the Commentary specifically deal
with a person's right to use force in self-defense against
another private citizen. That begs the question whether a dif-
ferent rule applies when a person reasonably believes it nec-
essary to use force against a police officer who is making an
arrest. Nothing in the wording of ORS 161.209 suggests that
the rule is altered in such a circumstance. The text of that
statute contains two exceptions, neither of which is pertinent
here.14 Moreover, in at least one case, this court has sug-
gested that a defendant would have a right to assert self-
defense if there had been

14 ORS 161.209 states that it applies "[e]xcept as provided in ORS 161.215 and
161.219." ORS 161.215 provides:

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"an overt act of a hostile character on the part of [a police
officer] or any demonstration on the part of said officer that
would have induced the defendant as a reasonably prudent
man to believe that he was in imminent danger likely to
cause death or great bodily injury."

State v. Weber, 246 Or 312, 318, 423 P2d 767 (1967).

At the same time, however, the law is clear that a
person may not use physical force to resist arrest, even if the
arrest is unlawful:

"A person may not use physical force to resist an arrest
by a peace officer who is known or reasonably appears to be
a peace officer, whether the arrest is lawful or unlawful."

ORS 161.260; see also ORS 162.315 (a person may not resist
arrest by intentionally using or threatening to use violence,
physical force, or any other means that creates a substantial
risk of physical injury to any person against a person known
to be a peace officer making an arrest).15

"Notwithstanding ORS 161.209, a person is not justified in using physical
force upon another person if:

"(1) With intent to cause physical injury or death to another person, the
person provokes the use of unlawful physical force by that person; or

"(2) The person is the initial aggressor, except that the use of physical
force upon another person under such circumstances is justifiable if the person
withdraws from the encounter and effectively communicates to the other per-
son the intent to do so, but the latter nevertheless continues or threatens to
continue the use of unlawful physical force; or

"(3) The physical force involved is the product of a combat by agreement
not specifically authorized by law."

ORS 161.219 provides:

"Notwithstanding the provisions of ORS 161.209, a person is not justified
in using deadly physical force upon another person unless the person reason-
ably believes that the other person is:

"(1) Committing or attempting to commit a felony involving the use or
threatened imminent use of physical force against a person; or

"(2) Committing or attempting to commit a burglary in a dwelling; or

"(3) Using or about to use unlawful deadly physical force against a
person."

15 Before the enactment of ORS 161.260, Oregon law gave a person the right to
use force to resist an "unlawful" arrest. The Commentary to the Proposed Oregon
Criminal Code, Final Draft and Report, section 32 (July 1970) (adopting ORS
161.260), makes clear that the primary concern of the drafters was to discourage
people from engaging arresting officers in combat because of differences of opinion
concerning the validity of an arrest.

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This case, then, presents an apparent conundrum: A
person may not use force to resist arrest, even if the arrest is
unlawful, but any person is entitled to use such force as is
necessary to overcome what the person reasonably believes
to be the unlawful use of physical force by anyone, including
a police officer. How can a person obey the statutes prohibit-
ing the use of force to resist arrest and still exercise his right
under ORS 161.209 to use force in self-defense? To answer
that question, as this court stated in Wright,

"it is crucial to distinguish between (1) the use of physical
force in resisting arrest and (2) the use of physical force in
defending oneself, i.e., self-defense, against excessive use of
force by the arresting officer. The former is unlawful.
Depending on the circumstances, the latter may be justifi-
able and not criminal.

"If a peace officer uses excessive force in making an
arrest, the arrestee has a right to use physical force in self-
defense against the excessive force being used by the offi-
cer. * * * In that circumstance, the arrestee is not 'resisting
arrest,' but, rather, is defending against the excessive force
being used by the arresting officer."

310 Or at 434-35.

In Wright, the court noted that the state had con-
ceded that the defendant had presented evidence at trial that
the arresting officers had used excessive force, by which the
court meant unlawful force under ORS 161.235, which pro-
vides that an officer is justified in using physical force only
when and to the extent that the officer reasonably believes it
is necessary to make an arrest, prevent an escape from cus-
tody, or for self-defense or defense of a third party. Id. at 435.
For that reason, the court observed, the defendant in Wright
was entitled to defend himself against that excessive use of
force. Id. Because of the state's concession, however, the court
in Wright was not required to confront the issue that is pre-
sented here-whether the actual lawfulness (under ORS
161.235 and ORS 161.239) of the officer's use of force is rele-
vant to the jury's consideration of the defendant's self-
defense claim. Here, of course, the state did not concede that
the evidence could be found to show that the officers used

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excessive or, to be more precise, unlawful force in arresting
Wood, and the issue is squarely presented.

We think that the answer to that question follows
directly from the wording of ORS 161.209, which makes the
defendant's reasonable belief that unlawful force was being
used (or about to be used) against him paramount. Thus,
while actual lawfulness of Gulbranson's and Miller's conduct
might in some way be deemed pertinent to assessing those
officers' own culpability in some other forum, such as in one
hearing criminal charges or a civil action against them, that
subject is not a consideration respecting Wood's right of self-
defense. Wood had a right to have the jury consider the cir-
cumstances surrounding the event from his own point of
view. If Wood believed, and a reasonable person in his posi-
tion would have believed, that the use or imminent use of
force against him exceeded the force reasonably necessary to
effect the arrest, then he was entitled to defend himself from
that use of force. Moreover, as we have already noted, the
burden of proof was on the state to disprove the existence of
that defense beyond a reasonable doubt.

In this case, however, the court, in instructing the
jury on the charge of resisting arrest, gave the jury instruc-
tions based on ORS 161.235 and ORS 161.239, which
describe an officer's right to use force, including deadly force,
in effectuating an arrest or preventing an escape. Those stat-
utes, and the instructions that the court gave the jury based
on them, provide that an officer is justified in using the
degree of physical force in those circumstances that the offi-
cer reasonably believes is necessary. Those instructions thus
inserted an irrelevant issue-the arresting officers' actual
state of mind-into the jury's deliberations concerning
Wood's claim of self-defense. The trial court erred in so
instructing the jury with respect to Wood's claim. Instead,
Wood was entitled to have his right to self-defense explained
to the jury in terms of what a reasonable person in his posi-
tion would have believed was occurring. What the officers
believed was not (indeed, could not have been) any part of
Wood's state of mind.16

16 We describe what the jury should have been told because the trial court's
error in instructing the jury as it did requires a new trial, and that trial must focus

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In Wood's case, that error was not harmless. To
"resist" arrest, a person must use or threaten to use "violence,
physical force or any other means that creates a substantial
risk of physical injury to any person," including "behavior
clearly intended to prevent being taken into custody by
overcoming the actions of the arresting officer." ORS
162.315(2)(c). Evidence was presented at trial (including
through Gulbranson's own testimony) from which the jury
could have found that Wood did not "resist" under that defi-
nition of the term until after Gulbranson sprayed him in the
face with Cap-Stun pepper spray and began delivering
"focused blows" to his back. In that case, whatever the offi-
cer's perception for the necessity (and, therefore, the actual
lawfulness) of using such force, the jury could have found
that a reasonable person in Wood's position would have
believed that the officer was using unlawful force against
him.

In addition, because we conclude that there was evi-
dence from which a jury could have found that Wood did not
resist arrest, we think that Wood's convictions for assaulting
a public safety officer also must be reversed. That is so
because Wood's convictions for assaulting a public safety offi-
cer were based on evidence that he injured the officers in the
course of engaging in what he claimed was the justifiable use
of force to defend himself. If a jury finds that that use of force
was justified, then it would also be appropriate for the jury to
reconsider the evidence supporting the charges of assaulting
a public safety officer.

As discussed above, Rilatos also was charged with
resisting arrest, and the trial court instructed the jury with
respect to her self-defense claim at the same time and in the
same way that it did for Wood. Rilatos's conviction for resist-
ing arrest was based on evidence that she pulled her arms
away from Miller to avoid being handcuffed and taken into
custody. Before Rilatos pulled her arms away from Miller,
Miller had not used any physical force on Rilatos, nor had he
threatened to use force beyond that necessarily involved in
taking her into custody by handcuffing her. Rilatos did not

on Wood's state of mind, the only state of mind relevant to his defense of self-
defense.

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respond to that action on Miller's part with any other use of
force. In those circumstances, the evidence did not support a
self-defense instruction for Rilatos on the resisting arrest
charge against her and, therefore, any error in the instruc-
tion that the trial court gave the jury with respect to Rilatos's
self-defense claim was harmless.

Finally, because the issue may arise on retrial, we
turn to consider whether the trial court erred in refusing to
give the special instruction that defendants requested. That
proposed instruction provided:

"If a peace officer uses excessive force in making an arrest,
the arrestee may use only such physical force as is reason-
ably necessary under the circumstances to defend himself
or herself against the excessive force being used against
him or her."

That instruction was based on the following statement by
this court in Wright:

"We conclude that, if an officer making an arrest uses exces-
sive force, the permissible use of physical force by the arres-
tee is limited to the use of such force as is reasonably nec-
essary under the circumstances for self-defense against the
excessive force being used by the arresting officer."

Wright, 310 Or at 436.

Defendants cannot be faulted for believing that
Wright was pertinent. However, as discussed above, the state
in Wright had conceded that evidence was presented at trial
that the officers had used "excessive force" in arresting the
defendant. Moreover, as noted above, context shows that, by
the phrase "excessive force," the court in Wright was refer-
ring to force that was unlawful under ORS 161.235, which
focuses on the officer's state of mind. See Wright, 310 Or at
434-35 (illustrating proposition). The only issue addressed in
the case was whether a defendant who had been subjected to
unlawful force by a police officer during an arrest was enti-
tled to a self-defense instruction that did not state that an
arrestee's right to use physical force in self-defense must be
reasonable under the circumstances. The court held that the

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defendant was not entitled to such an instruction because it
was not a correct statement of the law. Id. at 437.

Because the existence of evidence of the unlawful-
ness of the officers' use of force was a given in Wright, we do
not think that the instruction that defendants culled from
this court's statements in that case is appropriate.17 We also
agree with the trial court that the proposed instruction
requires the jury to decide whether a police officer's use of
force was "excessive," a term that is not found in the statutes
governing either self-defense or resisting arrest. As we have
discussed in detail above, ORS 161.209 provides that a per-
son is entitled to use force in self-defense against what the
person reasonably believes to be the use or imminent use of
"unlawful" physical force. Asking the jury also to consider
whether an officer's use of force was "excessive" is not helpful
or correct, particularly when this court, in Wright, itself
appeared to view the word "excessive" as synonymous with
"unlawful."18 The trial court did not err separately in refusing
to give defendants' special instruction based on Wright. The
trial court will be required on remand, however, to give some
instruction that conforms to our analysis as to whose state of
mind is the proper focus of the self-defense claim.

Finally, we address one further matter that is likely
to arise on remand. Defendant Wood requested, and the trial
court gave UCrJI 1227, the uniform jury instruction on "Self-
Defense-Resisting Arrest," which begins as follows:

"The defense of self-defense has been raised.

"A peace officer may use physical force on a person being
arrested only when and to the extent that the officer
reasonably believes it necessary to make an arrest. * * *. "

17 Formulating a jury instruction from this court's analytical observations in
any kind of case can be difficult. This court's statements of the law often are both
fact- and case-specific. We do not deny that such an effort sometimes must be
made, but we note that any such enterprise requires caution.

18 Indeed, a difficulty with Wright lies in its reliance on statutes-some of
which may have been irrelevant to the specific task before the court-to announce
principles governing a defendant's right to defend himself.

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As our previous discussion shows, that statement impermis-
sibly shifts the focus of the jury's deliberations on a defen-
dant's self-defense claim from what the defendant reasonably
believes to what the officer believes. That is incorrect and
should not be included in the instructions to the jury during
the trial on remand.19

The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court is
reversed with respect to defendant Wood's convictions for
resisting arrest and assaulting a public safety officer. In all
other respects, the judgments of the circuit court are
affirmed. Defendant Wood's case is remanded to the circuit
court for further proceedings.

19 In addition, as we observed above, notwithstanding the fact that the Com-
ment to UCrJI 1227 ("Self-Defense-Resisting Arrest") requires, and both defen-
dant and the state requested the court to give, an instruction defining the term
"resists," the trial court neglected to do so. That failure-which certainly was inad-
vertent-made it impossible for the jury properly to evaluate whether Wood's con-
duct constituted the crime of resisting arrest. Neither the state nor any of the
defendants called that failure to give complete instructions to the court's attention,
however, and we mention it only to assist in assuring that the jury in any retrial is
fully instructed.