There is more to this story it appears.
The police are reporting that the homeowner fired his warning shot while the perp was walking away. No one has reported as to how they know that (perp said it, police saw it, homeowner opened his yap) so it's impossible to say whether the charges are valid or not.
Further, the homeowner needed to keep his yap shut as he gave a news interview that was NOT what I would consider "in his best interest".
Of the charges listed in the media
1) Unlawful use of a weapon
2) Menacing
3) Reckless endangerment
I don't see "Unlawful Use" (ORS 166.220) sticking.
166.220 (2)(b) offers the following exception: (b) Persons lawfully defending life or property as provided in ORS 161.219
And 161.219 seems to not prohibit the homeowners actions.
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 §23]
The homeowner says the perpetrator was first attempting to kick in his door then tried to break into a neighbors home. If that is true (the police are reported to say "we didn't find any evidence of an attempted break in") then 166.220 would appear to not apply. NOTE: this is the ONLY felony charge.
"Menacing" is 163.190 which states:
163.190 Menacing. (1) A person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.
(2) Menacing is a Class A misdemeanor. [1971 c.743 §95]
Note that thre are no exceptions listed, such as self-defense, defense of another, etc. Situations in which a person would be wholly justified in doing exactly what the menacing statute prohibits. As such, I feel it is unenforceable on constitutional and common law grounds. Unless every person who has, in defending themselves or another, is prosecuted for violating this section, it cannot be applied to others due to the 14th amendments requirement of equal treatment under the law (equal protection clause). Surely we the people do not want this and the "justice" system is not doing it so there is unequal protection (treatment).
Reckless endangerment is 163.195 and reads:
163.195 Recklessly endangering another person. (1) A person commits the crime of recklessly endangering another person if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.
(2) Recklessly endangering another person is a Class A misdemeanor. [1971 c.743 §96]
First, the state must prove a SUBSTANTIAL risk of serious physical injury. Second, the state must prove that it was RECKLESS. While many of us would probably agree that while warning shots are not appropriate, we would probably agree that firing an intentional warning shot, while having some risk, does not raise to the level of SUBSTANTIAL risk. However, many people, and you can rest assured the one allowed to sit on the jury would be among them, would think it highly risky and reckless.
This charge has the highest probability of "sticking".
Then again, we don't know what all the homeowner said to police but we do know that he doesn't appear to have any propensity towards keeping his mouth shut.
It will be interesting to see what further facts come out and what kind of resolution comes of the case.
