WalkingWolf
Regular Member
There is a red light law in OR? I assume their is or they would not be able to stop the ones they catch. NOW it is time to put a citation up for IWB being illegal in OR. Please cite the law?
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There is a red light law in OR? I assume their is or they would not be able to stop the ones they catch. NOW it is time to put a citation up for IWB being illegal in OR. Please cite the law?
hermannr
Regular Member
First let's start with Delaware V Prouse (US Supreme Court). The court ruled that random stops to check for a license for a licensed activity is illegal.
The in Black (4th Circuit) and Thompson (10th circuit), both courts ruled that simple possession of a pistol is NOT good enough RAS to stop and detain someone. (Both Black and Thompson had been convicted of Felon in possession)
Then, lets read ORS 166.250(3)..."(3) Firearms carried openly in belt holsters are not concealed within the meaning of this section..."
So, the next question would be: Is an IWB holster a "Belt holster". As every IWB holster I have ever seen attaches to the belt is some fashion, usually with some sort of clip or loop...I would say an IWB holster fits the definition in ORS 166.250(3) of a "belt holster"
And should you have a dispute about it with LE, I would think you could pick that LEO's pocket in federal court.
Mississippi does not hold (the pistol must be completely visible) because OR law specifically says in a "belt holster" but does not define what a "belt holster" is ORS 166.210.
We-the-People
Regular Member
Hermanner......
While the 10th circuit can be "persuasive" it is not "precendent" in Oregon (9th circuit). A more appropriate case citation would be the US Supreme court or a 9th circuit ruling. You simply can't rely on another circuit's published or unpublished decisions (particularlyu unpublished).
The US Supreme Court has ruled that there is no firearms exception to the Fourth Amendment.
Florida v J.L. 529 U.S. 266 (2000) Unanimous Supreme Court: “This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a “firearm exception,” under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing.”
Delaware v. Prouse, 440 U.S. 648 (1979)......."Stopping a car for no other reason than to check the license and registration was unreasonable under the 4th amendment."
Stopping the IWB OC'er is equivalent to stopping a car to check of license. If a CHL is held (not in possession, simply held) then no violation exists. This is the same as stopping a driver to make sure they have a drivers license....and that has been held to be unlawful absent some specific violation.
Under these two US Supreme Court precedents, there would be no RAS of a crime to suspect that an IWB OC'er (determined to be concealing) was in violation of the laws requiring a permit to conceal or felon in possession. Absent some additional justification that the officer can articulate as a basis for suspicion that the subject was violating the law, it would be difficult to overcome the fourth amendment prohibitions against unreasonable search and seizure. The SCOTUS has clearly stated that the mere possession of a firearm does NOT abbrogate fourth amendment protections (i.e. no firearms exception) and since Oregon is a "Shall Issue" state, there is no reasonable suspicion that a person carrying is in violation of the law. Further, the very fact that the officer is almost assured to testify "because I saw he had a firearm", it would be difficult to argue that he could BOTH see it and that it was concealed.
Still, it's a test case and I wouldn't want to be footing the bill for the legal costs.
While the 10th circuit can be "persuasive" it is not "precendent" in Oregon (9th circuit). A more appropriate case citation would be the US Supreme court or a 9th circuit ruling. You simply can't rely on another circuit's published or unpublished decisions (particularlyu unpublished).
The US Supreme Court has ruled that there is no firearms exception to the Fourth Amendment.
Florida v J.L. 529 U.S. 266 (2000) Unanimous Supreme Court: “This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a “firearm exception,” under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing.”
Delaware v. Prouse, 440 U.S. 648 (1979)......."Stopping a car for no other reason than to check the license and registration was unreasonable under the 4th amendment."
Stopping the IWB OC'er is equivalent to stopping a car to check of license. If a CHL is held (not in possession, simply held) then no violation exists. This is the same as stopping a driver to make sure they have a drivers license....and that has been held to be unlawful absent some specific violation.
Under these two US Supreme Court precedents, there would be no RAS of a crime to suspect that an IWB OC'er (determined to be concealing) was in violation of the laws requiring a permit to conceal or felon in possession. Absent some additional justification that the officer can articulate as a basis for suspicion that the subject was violating the law, it would be difficult to overcome the fourth amendment prohibitions against unreasonable search and seizure. The SCOTUS has clearly stated that the mere possession of a firearm does NOT abbrogate fourth amendment protections (i.e. no firearms exception) and since Oregon is a "Shall Issue" state, there is no reasonable suspicion that a person carrying is in violation of the law. Further, the very fact that the officer is almost assured to testify "because I saw he had a firearm", it would be difficult to argue that he could BOTH see it and that it was concealed.
Still, it's a test case and I wouldn't want to be footing the bill for the legal costs.
hermannr
Regular Member
First of you you need to understand a Terry stop is a stop for suspician of a CRIME. A traffic violation, or walking down the street with an OC firearm is not a CRIME.
Random stops for license checks of a licensed activity are not legal per the US Supreme Court's decision in Delaware V Prouse, and in Oregon, you do not even need a license to OC a firearm.
The Black and Thompson decisions will be taken into accout if the 9th ever does have a case. Yes, they are not binding...but Delaware V Prouse is Binding.
We-the-People
Regular Member
I understand that completely, I am currently an honors student in a criminology course of study (in addition to business) at a four year college. However, you may beat the rap but you can't beat the ride. Whether you are ultimately found to have been violated or not, it is a large expense to defend against the charges (even when they have no lawful foundation). Lawyers are in the $250 and hour range and you have to find one. Then they have to learn firearms laws as there are very few attorneys who are good at firearms laws (hence my Criminal Justice study).
A friend, and fellow member here, just went through the process. Charges were ultimately dropped before trial but he still incurred attorney's expenses, lost time, hassles, and the confiscation of his property for a good amount of time.
WalkingWolf
Regular Member
Freedom and liberty do not come cheap.
We-the-People
Regular Member
No they aren't.
It also comes as a surprise to most people that you don't get a "free lawyer" to defend yourself in a criminal trial. The "if you cannot afford an attorney one will be appointed for you" line of a standard Miranda warning doesn't include all the disclaimers. The court will determine whether you can afford an attorney or not. Have a house with equity? A paid off car? Savings? Retirement accounts? Well heck, you're rich and can afford an attorney! The court is likely to require you to pay for your defense, even if an attorney is appointed, though it may be at a much lower cost than on the free market if they do appoint one. Then again, do you want to go with whoever they appoint?
My point in all of this is to bring attention to the costs that may be incurred and the need to be prepared to pay those costs in order to maintain your liberty and freedom.
I often carry "sterile" (i.e. no ID on my person) unless I'm in an area that a CHL is required and don't ID myself. Some officers don't like that so the probability of being arrested is not zero.
My family and friends have standing orders. If I'm arrested while OC, do not bail me out unless you hear from me personally that I want to be bailed out. The main reason for this is that bail typically includes "conditions", restrictions on your rights. That's not acceptable to me. Further, in Oregon, the state owns the bail system (no bail bondsmen) and they will do their best to keep the bail posted even if you are aquitted. There has been some case law on this now which makes it harder for them but it's still a fight to get your bail (intended only to ensure appearance) money back. And finally, I know the jails are overcrowded and they're probably going to have to make room for a real criminal in short order. They boot a lot of people from the jail around here that really should still be in jail, they're not going to keep someone like me.
Many people do not comprehend how the system works. They have been sold a bill of goods that doesn't exist. The utopian view, promulgated by society and the education system, that all will be well if you're not guilty of a crime. Even in the case of a "disorderly conduct" or equivalent charge that you are absolutely not guilty of committing, you will incur financial costs and possibly even have your freedom infringed. One of the local OC'ers just went through this. While all charges were eventually dropped, he spent the night in jail, had to bail out, had to hire an attorney, lost the use of his property for months, and faced the potential for jail time.
The state will also "pile on" charges in an attempt to obtain a plea bargain. Even when the police were completely in the wrong, they will often do this. Taking the plea insulates them (to some extent) from civil liability. For the same reason, they may very well drag it out hoping that you either 1) run out of funds or 2) get tired of the BS.
So, as regards the OP question, if you're prepared to defend your actions and deal with the costs (financial, lost liberty, and others), and you believe OCing with an IWB holster is legal (as I do) then go for it. Just be aware of the potential costs, all of them, before doing so. For our founding fathers, the potential cost was hanging, they decided that potentiaol cost was worth it. This is a lower cost, but the OCer must make an informed decision on whether they are prepared to pay the cost if it comes to that.
Jeff Hayes
Regular Member
If you have an Oregon Concealed License who cares if it is IWB or OWB?
We-the-People
Regular Member
Some chose not to ask permission to exercise a right. Others chose food on the table rather than getting permission to exercise a right. Not everyone has a CHL. I myself am considering whether to renew mine or not. I most likely will simply for the fact that I like telling my college it's none of their damn business where my weapon is when they see my empty holster.....or that "it's in my shoulder holster" if I'm wearing a jacket.....which there is a pistol in a shoulder holster in my safe.....hehehehehe