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Posted: 3/10/2006 12:40:10 PM EDT

Assault charge pending in burglary shooting
By Carrie Petersen
Albany Democrat-Herald

A man who allegedly shot and injured a burglar who had broken into his west Albany residence last summer is now facing a charge of second-degree assault with a firearm.

The shooting happened about 3:20 a.m. June 20, 2005, outside the residence in the 700 block of Walnut Street S.W.

Adam Michael Bradetich, 23, was indicted by a grand jury. He had been scheduled to appear Monday in Linn County Circuit Court, but the court date was set over to March 9.

The man who was injured, Lesley Eugene Autry, 21, was convicted in October 2005 of first-degree burglary and was sentenced to 30 days in jail and 36 months probation. Other charges of theft, assault and robbery, all stemming from the same incident, were dismissed.

According to Albany police at the time, Autry entered Bradetich’s residence and stole electronic items. Bradetich allegedly chased Autry out of the residence and fired two rounds from a shotgun.

Autry sustained a gunshot wound to his left hand and arm, according to police.

A fire department dive team later recovered the gun from the Albany-Santiam Canal. Police said Autry had taken it from Bradetich and tossed it into the canal.

www.dhonline.com/articles/2006/02/14/news/local/news06.txt




Man gets probation, jail time for shooting
BY CARRIE PETERSEN
ALBANY DEMOCRAT-HERALD

Adam Bradetich, 23, who shot and wounded a burglar outside his Albany residence last summer, was sentenced this morning to probation and 30 days in jail.

Bradetich appeared in Linn County Circuit Court this morning and pleaded no contest to attempted second-degree assault.

The shooting happened about 3:20 a.m. June 20, 2005 outside his residence in the 600 block of Walnut Street S.W.

Prosecutor George Eder told the court that Bradetich had seen an acquaintance inside his house stealing items.

Bradetich pursued the burglar outside with a shotgun, and shot and injured the burglar while the man was trying to get away, Eder said.

Once police arrived at the scene, Bradetich cooperated with them, the prosecutor said.

Bradetich's attorney, Paul Kuebrich explained the incident this way:

Bradetich had fired the gun inside the house, but it didn't discharge.

Outside the residence, Bradetich racked the shotgun, while yelling at the burglar to stop, and the gun went off.

At that time, the burglar turned and came toward Bradetich, who fired a second time. It wasn't clear if it was the first or second shot that hit the burglar.

Linn County Circuit Judge Glen Baisinger sentenced Bradetich, who had no prior criminal history, to 36 months probation and 30 days in jail with credit for time served.

He also ordered the defendant to pay $4,384.89 restitution to the victim for medical expenses.

The victim, Lesley Eugene Autry, 21, suffered a wound to his left hand and arm, according to police at the time.

Autry was convicted in October of first-degree burglary. He was sentenced to 30 days in jail and is now on probation.

www.kythri.net/pictures/03-09-06_Shooting.jpg



So, what I've gathered from this is, the "Good Guy" grabs a shotgun, shoots at the "Bad Guy", bad guy comes back, good guy shoots again, bad guy gets minor hits, takes the shotgun away, and throws it in the canal, and runs off.

Months later, when all is said and done, the guy who had his home and his life violated by criminal scum is convicted of a felony, eliminating his right to own firearms.

To add insult to injury, he received the same sentence as the actual criminal.

Outrageous.
Link Posted: 3/10/2006 1:17:41 PM EDT
Prosecutor George Eder told the court that Bradetich had seen an acquaintance inside his house stealing items.

Was he an acquaintance or a burglar. Seems like there's more to the story that it appears.
Link Posted: 3/10/2006 1:40:59 PM EDT

Bradetich allegedly chased Autry out of the residence and fired two rounds from a shotgun.


I think this is what did him in. Its a BIG no-no to shot a fleeing felon. There is no protection for this under Oregon law.
Link Posted: 3/10/2006 2:35:48 PM EDT
[Last Edit: 3/10/2006 2:39:10 PM EDT by kythri]
According to the second article, the first shot (as he was fleeing) was a misfire...

Either way, this happened in Albany.

Part of Oregon's preemption law, ORS 166.172, gives city's the ability to regulat discharge of firearms.


166.172 Authority of city to regulate discharge of firearms. (1) A city may adopt ordinances to regulate, restrict or prohibit the discharge of firearms within the city’s boundaries.
(2) Ordinances adopted under subsection (1) of this section may not apply to or affect:
(a) A person discharging a firearm in the lawful defense of person or property.
(b) A person discharging a firearm on a public or private shooting range, shooting gallery or other area designed and built for the purpose of target shooting. [1995 s.s. c.1 §3]



Basically, I interpret this to read that counties and cities can't prohibit the discharge of a firearm in defense of person or property.

Albany's ordinance on this, 7.16.030 reads:


7.16.030 Discharge of weapons.
(1) No person other than an authorized peace officer shall fire or discharge within the City any weapon which acts by force of gunpowder or other explosive, or by the use of jet or rocket propulsion or spring gun.

(2) No person other than an authorized peace officer shall discharge any air gun or crossbow or bow and arrow except with the permission of the affected property owner or other person lawfully in control of the property. No projectile so discharged may leave the property upon which permission to discharge was granted.

(3) The provisions of this section shall not be construed to prohibit the firing or discharging of any weapon:

(a) By any person in the defense or protection of his/her property or family;

(b) At any shooting or target range maintained or provided by the City of Albany or any public or private school or at any other location designated by the Chief of Police upon determination that the location is of suitable size, design and configuration to safely allow such use; and

(c) By a properly licensed waterfowl hunter, hunting on privately owned property of not less than 20 acres with the permission of the property owner, in full compliance with State and Federal hunting laws, regulations, and requirements, between January 13, 2000, through January 16, 2000, and between January 26, 2000, through February 27, 2000.* (Ord. 5430 § 1, 2000; Ord. 5026 § 1, 1993; Ord. 5011 § 1, 1992; Ord. 4694 § 1, 1985; Ord. 2823 § 13, 1958).

*Code reviser’s note: Section 2 of Ord. 5430 reads as follows:

Section 2: Automatic Expiration: AMC 7.16.030(3)(c) which is created by this Ordinance shall automatically be revoked on February 28, 2000.



Both seem to indicate that it's legal to discharge a firearm in defense of your person OR PROPERTY.

Linn County doesn't appear to have anything in the County Code about firearms whatsoever. (ETA: Just confirmed with a Linn County Sheriff's Deputy, and the Linn County Clerk's Office - Linn County follows the Oregon Revised Statutes, and hasn't enacted any Code of their own.)

I'm searching the ORS 166 stuff, which is where firearms are regulated, and I can't find any other ORS that says that you CAN'T use lethal force to defend your property.

I'm not saying it doesn't exist, I'm just saying that I can't find it in my half-assed search. If you have the info, please, let me know, because I'd love to read it.
Link Posted: 3/10/2006 2:45:59 PM EDT
story seems goofed anyway. accidental discharge and hits the guy while he flees? guy returns and takes another round but manages to get up to the owner and takes away his shotty and throws it in the water ditch? and these two are acquainted? only thing missing is the burglar didn't stick the shotty up the homeowners ass while a third person shot some video of it.
Link Posted: 3/10/2006 3:12:23 PM EDT
That section only regulates discharge of a firearm, and is there to ensure that if they can't get you for injuring/killing a criminal, then they get you for illegal discharge of a firearm.

You need to look at the sections regarding the use of force and deadly force.


161.205(5) says when you can use physical force when protecting self, other person or property:



(5) A person may use physical force upon another person in self-defense
or in defending a third person, in defending property, in making an arrest
or in preventing an escape, as hereafter prescribed in chapter 743,
Oregon Laws 1971. [1971 c.743 s.21; 1981 c.246 s.1]



So we are fine to use force, but so far, not deadly force in defense of property.

The next sections deals with defense of property:



161.225 Use of physical force in defense of premises.

(1) A person in lawful possession or control of premises is justified
in using physical force upon another person when and to the extent that
the person reasonably believes it necessary to prevent or terminate
what the person reasonably believes to be the commission or attempted
commission of a criminal trespass by the other person in or upon the premises.

(2) A person may use deadly physical force under the circumstances set
forth in subsection (1) of this section only:

(a) In defense of a person as provided in ORS 161.219; or
(b) When the person reasonably believes it necessary to prevent the
commission of arson or a felony by force and violence by the trespasser.

(3) As used in subsection (1) and subsection (2)(a) of this section,
premises includes any building as defined in ORS 164.205 and any real
property. As used in subsection (2)(b) of this section, premises includes
any building. [1971 c.743 s.25]

161.229 Use of physical force in defense of property.

A person is justified in using physical force, other than deadly
physical force, upon another person when and to the extent that the
person reasonably believes it to be necessary to prevent or terminate
the commission or attempted commission by the other person of theft
or criminal mischief of property. [1971 c.743 s.26]



Section (2) covers deadly force. You are permitted to use deadly force to prevent arson -- so you can protect your property against that. Otherwise, you cannot, unless the perp. is using "force and violence" -- note this is prevention, not retribution, so once they are no longer persuing a path of force and violence -- like having left the premises, you no longer have justification.
Keep reading...

161.219 lets us use deadly force, including in a dwelling to protect against burglary.
Note "in a dwelling".

Note that 161.229 explicitly says you may NOT use force in defense of property.



161.219 Limitations on use of deadly physical force in defense of a person.

Notwithstanding the provisions of ORS 161.209, a person is not
justified in using deadly physical force upon another person unless the
person reasonably 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.
[1971 c.743 s.23]



As for the "fleeing felon" part -- Only a "peace officer" may use deadly force:



161.239 Use of deadly physical force in making an arrest or in
preventing an escape.

(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 threatened imminent use of physical
force against a person; or
(b) The crime committed by the person was kidnapping, 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 constitutes justification for
reckless or criminally negligent conduct 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. [1971 c.743 s.28]



So I see nothing there which permits you to follow a burglar out of your house and blast away at him -- but I do see prohibitions against doing so.
Link Posted: 3/10/2006 3:32:41 PM EDT

Originally Posted By kythri:
Basically, I interpret this to read...


You should be an attorney.

Sounds like their both dumbasses and Bradetich should never have fired.
Link Posted: 3/10/2006 3:48:20 PM EDT
Like it or not Kythri. you cannot shoot a burglar while he (or she) is fleeing!

You can't kill someone while they are running off with your stereo!

Link Posted: 3/10/2006 4:40:07 PM EDT
The problem with the law as it stands is that you can't shoot someone runninf off with your stereo -- which is (sort of) reasonable, but neither can you shoot someone you disturb cutting your kid's throat if he turns and runs.

Of course, find a jury that would actually convict (outside Portland) might be a challenge.
Link Posted: 3/10/2006 5:17:50 PM EDT
(I'm going to summarize, and not quote the entire post, so I can make sure we're on the same page, and not have to create huge long replies )


Originally Posted By PhilipPeake:
You need to look at the sections regarding the use of force and deadly force.

161.205(5) says when you can use physical force when protecting self, other person or property:
So we are fine to use force, but so far, not deadly force in defense of property.



Right.


161.225 Use of physical force in defense of premises.
(1) Can use force to prevent or terminate criminal trespass or attempted criminal trespass.e premises.
(2) Can use deadly physical force above only if
(a) In defense of a person as provided in ORS 161.219; or
(b) When the person reasonably believes it necessary to prevent the
commission of arson or a felony by force and violence by the trespasser.



I can use physical force to defend my premises, and can escalate to deadly physical force if I'm defending someone else, or if the guy is trying to burn my place down, or trying to commit a felony using force and violence of his own.

This would be where I'm allowed to shoot the guy who's just busted into my house, and is holding a gun menacingly, I'd imagine.


161.229 Use of physical force in defense of property.
Can use force, but not deadly physical force to prevent or terminate theft or criminal mischief of property.



So, I wake up, walk downstairs, and see some punk trying to steal, or stealing my DVD player - I can physically restraing him, etc., but can't use deadly physical force.



161.219 Limitations on use of deadly physical force in defense of a person.
You are not justified in using deadly physical force unless the subject 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.



Burglary is defined as:


164.215 Burglary in the second degree. (1) Except as otherwise provided in ORS 164.255, a person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime therein.
(2) Burglary in the second degree is a Class C felony. [1971 c.743 §136; 1993 c.680 §24]




164.225 Burglary in the first degree. (1) A person commits the crime of burglary in the first degree if the person violates ORS 164.215 and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:
(a) Is armed with a burglary tool or theft device as defined in ORS 164.235 or a deadly weapon;
(b) Causes or attempts to cause physical injury to any person; or
(c) Uses or threatens to use a dangerous weapon.
(2) Burglary in the first degree is a Class A felony. [1971 c.743 §137; 2003 c.577 §10]



And so under 166.219, I'm allowed to shoot him if he "enters or remains unlawfully in a building with intent to commit a crime therein", but once he starts trying to steal my shit, or commit any other crime for which deadly physical force is not allowed, I'm not allowed to shoot anymore?



161.239 Use of deadly physical force in making an arrest or in
preventing an escape.
A peace officer is justified in using deadly physical force, only if he/she meets certain
qualifications, no mention of a non-peace officer



Don't take this the wrong way - I'm not looking for the very narrow circumstances, because I'm itching to shoot someone - I'm just trying to understand all of this.

With that said, it's a damned shame we don't have Texas-style laws here. It's asinine that we can be violated as such, and these maggots are allowed to live.
Link Posted: 3/10/2006 5:20:29 PM EDT

Originally Posted By OregonForester:
Like it or not Kythri. you cannot shoot a burglar while he (or she) is fleeing!

You can't kill someone while they are running off with your stereo!




All of that aside, though, what's still completely screwed up in all of this is that the REAL criminal, the guy who burglarized the house and attempted to steal his stuff, received the exact same punishment as the guy had his home burglarized.
Link Posted: 3/10/2006 6:26:02 PM EDT
I agree with your analysis -- except that deadly physical force is allowed under 161.219 says:



161.219 Limitations on use of deadly physical force in defense of a person.

Notwithstanding the provisions of ORS 161.209, a person is not
justified in using deadly physical force upon another person unless the
person reasonably 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.



If you believe that the person is about to use physical or deadly force against you or someone else you are entitled to use deady force to prevent it.

Its really all about what you believe, and how you justify that belief later.

Convincing a grand jury that you believed someone running away, and who you shot in the back, to be a threat might take some doing.

Link Posted: 3/10/2006 8:01:32 PM EDT
Ok, so it's agreed that you can't shoot a fleeing felon.

However, there was a thread with a video posted in GD a little while back, of a burglar attempting to rob a hotel at gun point. Hotel employee busts out a handgun, burglar turns around to run out, and hotel employee caps him three times. Pretty sure he got off without any punishment.

Does the criminal bearing a firearm make a difference?
Link Posted: 3/10/2006 8:41:31 PM EDT

Originally Posted By A1C_Titan:
Ok, so it's agreed that you can't shoot a fleeing felon.

However, there was a thread with a video posted in GD a little while back, of a burglar attempting to rob a hotel at gun point. Hotel employee busts out a handgun, burglar turns around to run out, and hotel employee caps him three times. Pretty sure he got off without any punishment.

Does the criminal bearing a firearm make a difference?



Three words: roll them over
Link Posted: 3/10/2006 8:47:11 PM EDT
[Last Edit: 3/10/2006 8:50:44 PM EDT by kythri]

Originally Posted By A1C_Titan:
Ok, so it's agreed that you can't shoot a fleeing felon.

However, there was a thread with a video posted in GD a little while back, of a burglar attempting to rob a hotel at gun point. Hotel employee busts out a handgun, burglar turns around to run out, and hotel employee caps him three times. Pretty sure he got off without any punishment.

Does the criminal bearing a firearm make a difference?



Different state, mang.

ETA: Also depends a lot on the DA. I'd imagine that if the video incident (I saw it too) happened in a state with laws like Oregon, and there was a large enough public outcry about the shooter not getting punished, the DA would change his tune.

Linn County's DA, Jason Carlile, is kind of a douche.
Link Posted: 3/10/2006 8:57:03 PM EDT
there is actually more to this story, I will ask and find out.
Link Posted: 3/10/2006 9:51:01 PM EDT

Originally Posted By justinwb:
there is actually more to this story, I will ask and find out.



I think there must be. I'm trying to remember some details and the time frame but I think in the late 80s. There was a man in Albany who saw a guy breaking into his car that was parked on the street. He hollered at the guy who continued to rifle through his car, then he shot and killed the guy.

There was a public outcry, the guy went to trial, and was acquitted. I don't remember exactly what they charged him with.

This Bradetich pled no contest and I don't understand why he would have done that if there wasn't something else going on. Makes you wonder if the other guy was trying to steal his favorite bong or something.

NMSight
Link Posted: 3/11/2006 2:22:14 AM EDT

Originally Posted By NMSight:

Originally Posted By justinwb:
there is actually more to this story, I will ask and find out.



I think there must be. I'm trying to remember some details and the time frame but I think in the late 80s. There was a man in Albany who saw a guy breaking into his car that was parked on the street. He hollered at the guy who continued to rifle through his car, then he shot and killed the guy.

There was a public outcry, the guy went to trial, and was acquitted. I don't remember exactly what they charged him with.

This Bradetich pled no contest and I don't understand why he would have done that if there wasn't something else going on. Makes you wonder if the other guy was trying to steal his favorite bong or something.

NMSight




Maybe it was a "coustomer" whod decided the product he recieved was not worth the stereo he traded for it?

Regardless, if tghey run out of your house, don't chase them down and shoot them. We need more laws like FL and TN.
Link Posted: 3/11/2006 7:38:33 AM EDT

Originally Posted By azathoth:
Regardless, if tghey run out of your house, don't chase them down and shoot them. We need more laws like FL and TN.



Oregon laws really are like the FL law already -- if you believe that you, or someone else, is in danger you can use deadly force to stop it. Inside your home, or outside.

The only fly in the ointment is this little gem:



161.200 Choice of evils.

(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.



Although it doesn't say it, this has been interpreted by Oregon's supreme court to require retreat if at all possible. They used another test not mentioned in the law, that of "the reasonable man", and their reasonable man would always try to avoid using deadly force if possible.

We just need to add one more line, saying quite simply that there is no requirement to retreat before using physical or deadly force to meet agression.

We should use the liberal's own tactics, and just slip such an amendment into an unrelated bill -- something on school funding for example.
Link Posted: 3/11/2006 8:02:29 AM EDT

Originally Posted By PhilipPeake:

Originally Posted By azathoth:
Regardless, if tghey run out of your house, don't chase them down and shoot them. We need more laws like FL and TN.



Oregon laws really are like the FL law already -- if you believe that you, or someone else, is in danger you can use deadly force to stop it. Inside your home, or outside.

The only fly in the ointment is this little gem:



161.200 Choice of evils.

(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.



Although it doesn't say it, this has been interpreted by Oregon's supreme court to require retreat if at all possible. They used another test not mentioned in the law, that of "the reasonable man", and their reasonable man would always try to avoid using deadly force if possible.

We just need to add one more line, saying quite simply that there is no requirement to retreat before using physical or deadly force to meet agression.

We should use the liberal's own tactics, and just slip such an amendment into an unrelated bill -- something on school funding for example.





On a completely different note, we need to enact legislation at the state and federal level that prevents amendments unrelated to the host bill.
Link Posted: 3/11/2006 8:31:09 AM EDT
Sliping our little gem into a school funding bill would encourage the dems to back such a law
Link Posted: 3/11/2006 9:23:35 AM EDT
Good information to know, thanks gentlemen
Link Posted: 3/11/2006 11:37:27 AM EDT

Originally Posted By PhilipPeake:
We should use the liberal's own tactics, and just slip such an amendment into an unrelated bill -- something on school funding for example.



Not picking a fight but pointing that out as a liberal tactic is way one-sided. That tactic is used by both sides of the aisle, frequently.


Originally Posted By kythri:
On a completely different note, we need to enact legislation at the state and federal level that prevents amendments unrelated to the host bill.



Totally agree. Also we should prevent the 'gut-and-replace' manuever that has been used before (wait until the bill gets past some hurdles and then amend it by completely replacing the content with something else).

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