Did Oregon Man Who Shot the School Shooter Violate Oregon Law in Carrying Gun onto School Property?

I’ve seen some say yes as to that—as an objection to gun control laws, not as an objection to the man’s actions—but I don’t think it’s quite right.

It’s true that Oregon law generally criminalizes gun possession on school property, including by people with concealed carry licenses, if the school board adopts such a no-guns-allowed policy. And apparently the Bend school in which the shooting took place indeed has such a policy.

But Oregon law recognizes a so-called “choice of evils” defense, often called a “necessity” defense, that allows people to violate a wide range of laws if it’s genuinely necessary in an emergency:

(1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when:

(a) That conduct is necessary as an emergency measure to avoid an imminent public or private injury; and

(b) The threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.

(2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.

That means that, even when gun possession is otherwise criminal, it is “not criminal” when it’s necessary to avoid imminent serious harm. Indeed, even felons, who are generally barred from possessing guns, may pick up a gun that’s physically available to them when it’s necessary for imminent self-defense:

We think that the trial judge’s conclusion that ORS 161.200 [the choice of evils statute] is inapplicable to the offense of being an ex convict in possession of a firearm is incorrect. The statute contains no such express exception, and we see no justification for implying one. To the contrary, one who has been previously convicted of a felony is just as entitled to defend himself from an imminent threat of injury as is any other private citizen. We hold that the defense is available to those who have been previously convicted of a felony and, in appropriate circumstances, may justify their resort to a weapon which it would otherwise be unlawful for them to possess.

Likewise, a law-abiding gun owner may go into a school where gun possession is otherwise criminal when it’s necessary to try to stop a school shooting. (Even in jurisdictions that don’t formally recognize a choice-of-evils / necessity defense, the separate doctrines of self-defense or defense of others may provide a defense as to bringing a gun onto school property in such a situation, just as they provide a defense as to using the gun to kill the shooter.)

Nor is this just a matter of prosecutorial discretion. If a prosecutor does file charges in such a situation, the gun owner can raise the defense. And if the evidence is sufficient to potentially trigger the defense (e.g., if the defendant or a witness testifies to facts that a reasonable jury may interpret as sufficing for the defense), then “the state must negate [the defense] beyond a reasonable doubt.”

In this respect, the choice-of-evils defense is much like the defense-of-others defense. Killing someone is generally a crime; but the law recognizes that sometimes it’s justifiable (in particular, to defend yourself or others against death or other very serious harms), and thus provides a defense-of-others affirmative defense.

Likewise, carrying a gun onto school property in Oregon is a crime when the school district forbids it. But the law recognizes that sometimes it’s justifiable (in particular, to defend people against a school shooting), and thus provides a choice-of-evils affirmative defense.

Naturally, the operation of the defense depends on the good sense of prosecutors, judges, and juries—just as the operation of the self-defense and defense-of-others defense do. But it’s the way our legal system deals, even if at times imperfectly, with situations where an emergency need warrants what would otherwise be illegal action (whether that otherwise illegal action would be murder, as to the shooting itself, or a weapons offense, as to the carrying of a gun onto school property).

Of course, the choice-of-evils defense doesn’t work for people who want to carry guns in forbidden places simply to be prepared in case the gun is needed (the usual reason most people who carry guns do so). One can certainly debate whether schools should allow at least some people, such as teachers or other school staff who are trained and licensed, to keep guns on their persons in school.

But even if you think the Oregon law (coupled with Bend’s policy) is foolish in generally criminalizing gun licensees’ carrying a gun onto school property, it’s not so foolish as to criminalizing their carrying a gun onto school property when necessary to stop an in-progress school shooting.

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