Exemptions for Licensed Hunters/Fishers

I tried searching through the site for an answer, but it seems my search bar isn't working all that well.
I hunt and fish very often; this usually requires me to travel through Portland. I have always wondered about ORS 166.260(3)(B) and Portland City Code 14A.60.010 (C)(12).
Does this exemption technically allow me to carry my pistol on my hip concealed and loaded while driving to my hunt or fishing hole? From the way I have read it (several times), it seems that this is the case. I understand most of the people on here are not lawyers, so I am just trying to make sure that I am not dead wrong.
Also, have any of you been pulled over and had to actually use this exemption?

Seems like you are correct. The exception for CHL holders is in the same list as licensed hunters and fisherman coming or going to a hunting or fishing trip. Note that both of these exceptions are affirmative defenses, which means you could still be detained until you prove you are exempt for some reason. Whether or not that is constitutional is an entirely different question.

Understand this OP: an exemption or exception is something that YOU would need to prove in court ... it is not something the state needs to disprove to obtain a conviction (I assume its a felony otherwise?).

If a cop sees you and you want to claim an exception then expect to be arrested and the gun confiscated as exceptions and exemptions do not exist until you plead them in court.

You want a jury to sit there and try to figure this stuff out? Willing to bet years in prison that they'll believe you and agree with you?

And then there is the $$$ and suffering you will go through if arrested (convicted or not).

Just a word of warning about exceptions and exemptions ... lawmakers put these into the statues knowing what the outcome will be for those who think the system is fair.

davidmcbeth said:

Understand this OP: an exemption or exception is something that YOU would need to prove in court ... it is not something the state needs to disprove to obtain a conviction (I assume its a felony otherwise?).

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I don't believe this to be entirely true. If the exception/exemption is an affirmative defense, then yes, you could be arrested until you prove you are an exception to the law. If the exception/exemption isn't an affirmative defense, then the impetus is on the officer to ensure you aren't an exception before he detains you. That's one of the downsides to concealed carry in Oregon, if you are found to be carrying a concealed weapon, your CHL is an affirmative defense (see 166.260(4)). If you are a licensed hunter/fisherman who is concealing a firearm though, an officer can't stop you because 166.260(3)(b) isn't an affirmative defense, it's solely an exception.

Actually, 166.173 and Portlands city ordinance are the controlling elements of law in the OP's example.

166.173 grants Portland the authority to regulate LOADED firearms in public places for those without a CHL. Since the OP does not have a CHL and 166.173 does not offer protection for licensed hunters and fishermen, he can be regulated by Portland city ordinance.

166.250 doesn't apply at all since the OP does not have a CHL but does have a hunting/fishing license and is ONLY asking about when he is on his way to/from hunting/fishing. This is found in 166.260(3) which states that "ORS 166.250 does not apply to or affect:" and "(3)(b) Licensed hunters or fishermen while engaged in hunting or fishing, or while going to or returning from a hunting or fishing expedition".

166.250 (4) makes a CHL an "affirmative defense" to a charge of violation of 166.250 but 166.260 (1) and (1)(h) make it quite clear that 166.250 "does not apply to or affect" CHL holders. The intent of 166.260(4) is merely to make it clear that a charge of violating 166.250, brought against a CHL holder will not withstand judicial scruitiny.

Now when we turn to Portlands city ordinance the wording is slightly different. It says that the hunting and fishing license (among other things) is an exception to the ordinance and constitutes an affirmative defense. Still, this is intended (though I'm sure they wish they didn't have to) that hunting and fishing licenses exempt the holder from the ordinance if they are going to/from hunting or fishing. The affirmative defense language does the same thing it does in 166.260(4)...to ensure that there is no question that charges will fail to pass judicial scruitiny.

Under the law, an arrest cannot be PROPERLY made unless there is a law, that applies to the individual being arrested, that has been violated. Since 166.250 does not apply to CHL holders or licensed hunters and fishermen going to/from hunting and fishing (per ORS 166.260 (1) and (3)), no PROPER arrest can be made under the premise of violating 166.250. The same is true of the Portland city ordinance under its provisions.

Now, in the real world, can the cops arrest you and haul you in (whether using a CHL or a hunting/fishing license)? Sure they can, they have the badges, the guns, all kinds of buddies, and the backing of the state to use force. In fact, they can arrest you because they just don't like the way you look, or whatever other reason they want to give. HOWEVER, it would be an abuse of their power, a violation of the citizens civil rights, and should result in charges being dismissed and civil suit being filed (and won) against the department and the officers as individuals.

Be sure to read my tag line....IANAL......but I am a Criminal Justice scholar

In my state, we have certain exceptions and they are affirmative defenses ...
http://scholar.google.com/scholar_case?case=11307301063353488578&q=29-35&hl=en&as_sdt=4,7

In the case cited above, the only elements the state needs to prove is: 1) you have the gun and 2) you have no cc permit ... thats it. And the law of the cited case does have an exception .. in fact the trial judge made an error where the judge instructed the jury that the state had to prove the exception was not met .. the appellate court, and quite correctly, corrected this viewpoint and noted that an exception is an affirmative defense (not that it made any difference in the outcome of the case as the jury seemed to ignore this jury instruction).

Then its on YOU to prove you actually qualify for an exception ... exemptions/exceptions all are affirmative defenses....

In this case it is clear that the error could not possibly have affected the verdict. The court did improperly instruct the jury that an essential element of the offense defined in General Statutes § 29-35 was that the defendant was not, at the time 406*406 the offense was committed, a person excepted from the prohibition of General Statutes § 29-35 and that the state had the burden of proof on this element. Because it is concluded, and properly so, that the state never had the burden of proving that the defendant was not within the category of persons excepted from the statute, it is of no consequence that the jury erroneously believed that the state had proven the non-applicability of the exception beyond a reasonable doubt. This instruction was unnecessary to the charge. We have held that where the court, in its instructions to the jury, erroneously charges on a matter which is not necessary to sustaining the verdict, that error is harmless. See Ramonas v. Zucker, 163 Conn. 142, 148, 302 A.2d 242 (1972). See also State v. Roy, 173 Conn. 35, 42-44, 376 A.2d 391 (1977). from the opinion cited

I am NOT a criminal justice scholar ... but I am a qualified expert on regulations that have exemptions and exceptions ...

Is a cop supposed to assume that the license or permit you hand him is still valid?

In OR you have to be going to, coming from, or participating in a licensed hunt or fishing event to be covered...still need some kind of license, state nanny permit, to get past Portland and their ilk. But yes, in OR if you are going hunting or fishing it is the equivilant of having a CHL.

Here in WA they are a bit more open...it only has to be an outdoor recreational activity, no license necessary (a walk in the park is an outdoor recreational activity BTW)

davidmcbeth said:

Understand this OP: an exemption or exception is something that YOU would need to prove in court ... it is not something the state needs to disprove to obtain a conviction (I assume its a felony otherwise?).

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No, it's a misdemeanor.

(ORS 166.250)

EMNofSeattle said:

No, it's a misdemeanor.

(ORS 166.250)

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In Oregon:

If you do not have a CPL, and you are 1: Openly carrying in a holster on your hip, you are exempt from ORS 166.250. see ORS 166.250(3) In Oregon If you meet any one of the exceptions in ORS 166.260 (like the one that allows: if you are going to, or coming from, or participating in, licensed hunting or fishing)...you are EXEMPT from ORS 166.250

Exempt means, that law does not apply to you. Just like as in RCW 9.41.060(8) exempts you from WA state RCW 9.41.050 (and a couple other laws) if you are going to, coming from, or participating in, and outdoor recreational activity.

EMNofSeattle said:

No, it's a misdemeanor.

(ORS 166.250)

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Well then they'll only screw you over badly instead of totally.

davidmcbeth said:

Well then they'll only screw you over badly instead of totally.

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It's even less in Washington. Oregon you can be jailed up to 1 year exactly for unlawful ccw, in Washington it's only 90 days maximum sentence. I'm amazed myself, I don't know the punishment for unlawful ccw in all states, but in my state it's surprisingly light. Oregon is worse, but considering that in several states carrying a gun without the permission slip is a felony, it's still not that bad, now if only we could pass constitutional carry in more states