08.20.13 Legal Analysis of Recent Court Cases

Two recent court cases affect gun owners’ rights in Oregon.

The one that has gotten the most attention has also been mostly misunderstood.

This case, State of Oregon vs Jonathan Christian dealt with whether Portland’s ordinance banning possession of loaded guns in public places was constitutional.

It’s important to note that Portland’s ordinance (and now the recently enacted similar ordinance in Multnomah County) did not apply to CHL holders. This is the area that has generated the most concern and confusion. And while this decision cannot be seen as “good” news for gun owners, it does not change current law or add new restrictions, it only reaffirms the ones currently in place.

Kelly Jaske is an OFF member and attorney in Portland. Her  law practice specializes in criminal, ethics, and licensure defense. She prepared the following analysis of this case at our request.

It’s a bad news / good news day for the non-CHL-holder who wants to carry a loaded firearm in Portland.  

 The bad news: On August 15, the Oregon Supreme Court held constitutional a City of Portland ordinance that makes it unlawful “for any person” – subject to exceptions, such as for those holding concealed handgun licenses – “to knowingly possess or carry a firearm” in a public place while “recklessly having failed” to unload.

 The good news, in two parts: First, the court limited its decision to the ordinance’s facial constitutionality.  In a “facial” challenge, a litigant asserts that a law or ordinance is unconstitutional “on its face” – that is, that there exists no set of circumstances under which the provision is valid.  In an “as-applied” challenge, by contrast, a litigant argues that an otherwise constitutional law has been applied in an unconstitutional way.  Taking up only the facial side of things, the court offered no opinion as to whether the way in which the law was applied here – to say nothing of the ways in which it may be applied in other cases – might yet run afoul of state or federal constitutional protections.

 

Second, the court recognized that the Second Amendment encompasses a right to self-defense outside the home, albeit “to a degree yet to be determined.”  By concluding that the Portland ordinance thus “does, to some extent, burden protected conduct falling within the scope of the Second Amendment’s guarantee,” the court lights a path for future, as-applied, Second-Amendment challenges against the city’s prohibition.

The second case, which got far less attention, but was certainly a victory for gun owners (if not for Nile Stark, the defendant) was State of Oregon vs Nile Terrence Stark.

This case dealt with persons who had felonies reduced to misdemeanors and whether or not they could be in possession of firearms.  This has been an issue that has generated tremendous confusion among defendants, DA’s and even the legislature.

Again, Kelly Jakse’s analysis of  what this case means to gun owners:

Barred from firearms by Oregon’s felon-in-possession statute?  Sure, you can move to expunge the conviction; you can seek a pardon; you can request restoration of your gun rights.  But as the Oregon Supreme Court made clear a few days ago, there is another option: If you’re eligible (ask a lawyer on that), move to reduce your felony conviction to a misdemeanor; and when you do, take care that the reduction is memorialized in a “judgment” rather than just in an “order.”  With that new judgment, your conviction no longer triggers Oregon’s felon-in-possession prohibition.

 Subject to several exceptions, Oregon law bars “[a]ny person who has been convicted of a felony” from possessing a firearm.  ORS 166.270(1).  Among the several exceptions, a conviction for a felony offense “shall not be deemed” a felony conviction for purposes of the felon-in-possession statute if “[t]he court declared the conviction to be a misdemeanor at the time of judgment.”  ORS 166.270(3)(a).

 What, though, is meant by “at the time of judgment”?  Does the exception refer only to felony offenses deemed misdemeanors when the original judgments were entered?  Or does it include convictions that come into the world with the felony label only to be reduced to misdemeanor status at some later date?

 On August 15, the Oregon Supreme Court provided answers.  The court held that the phrase “at the time of judgment” refers “to the time of the judgment of conviction that was in effect at the time of the alleged firearm possession.”  In other words, the ORS 166.270(3)(a) exception encompasses not only convictions declared misdemeanors from the outset, but also convictions originally entered as felonies and reduced sometime thereafter to misdemeanors.  

 The gist: The court’s decision makes clear that if you have been convicted of a felony and later have that felony reduced to a misdemeanor judgment (note that an “order” won’t do; the magic document is a “judgment”), the ORS 166.270 felon-in-possession prohibition ceases to apply.

 

Our thanks to Kelly for providing these explanations.