Mattimusmaximus
Regular Member
That last part.. Mandatory 30 days! Whoo!!! Vacation!! Not!
-Matt of Hillsboro OR-
-Matt of Hillsboro OR-
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Oregon Zoo Letter
- Thread starter Lord Sega
- Start date
Lord Sega
Regular Member
snip... There does not have to be RAS of a crime - a LEO has the right to stop you and check
D. It is unlawful for any person who possesses a firearm, clip or magazine in or upon a public place, or while in a vehicle in a public place, to refuse to permit a police officer to inspect that firearm after the police officer has identified him or herself as a police officer.
http://www.portlandonline.com/auditor/index.cfm?a=332592&c=28514
RAS is the possible breaking of the Portland ordinance / law, showing that it's unloaded OR showing your CHL is your defense to the detainment investigation / arrest.
The rest of 14A.60.010:
D. It is unlawful for any person who possesses a firearm, clip or magazine in or upon a public place, or while in a vehicle in a public place, to refuse to permit a police officer to inspect that firearm after the police officer has identified him or herself as a police officer. This Section does not apply to law enforcement officers or members of the military in the performance of official duties, nor persons licensed to carry a concealed handgun or persons authorized to possess a loaded firearm, clip or magazine while in or on a public building or court facility.
So, RAS to inspect the firearm to see it is unloaded OR you show your CHL so that loaded or unloaded doesn't matter.
Showing your CHL should end the detention encounter at that point. If you have a CHL, but not on you, showing it in court (after arrest) is an affirmative defense to the charge.
Of course, they could "temporarily seize" the firearm for "officer safety" during the encounter
Also, 30 days is a minimum "must impose" sentence with 6 months + $500 as a maximum "absence of the aggravating factors"
6 months seems excessive if there are no other factors / crimes other than carrying loaded.
E. Penalty
1. In the absence of the aggravating factors listed in Subsection 14A.60.010 E.2., the court may impose a sentence of up to 6 months imprisonment and a fine not to exceed $500 for violation of this section.
2. When this offense is committed by carrying a loaded firearm containing ammunition that employs gunpowder as a propellant in a vehicle, including a transit vehicle, the court must impose a mandatory minimum sentence of 30 days for violation of this Section.
SIDE NOTE: This is for Oregon STATE statutes 166.250 & 166.370 ... I could not find a similar limitation for the Portland ordinance.
§ 166.262¹
Limitation on peace officers authority to arrest for violating ORS 166.250 or 166.370
A peace officer may not arrest or charge a person for violating ORS 166.250 (Unlawful possession of firearms) (1)(a) or (b) or 166.370 (Possession of firearm or dangerous weapon in public building or court facility) (1) if the person has in the persons immediate possession a valid license to carry a firearm as provided in ORS 166.291 (Issuance of concealed handgun license) and 166.292 (Procedure for issuing). [1999 c.1040 §5]
hermannr
Regular Member
I would think the the US Supreme Court ruling in Delaware V Prouse that ruled that a stop just to inspect a license (no other reason noted) for a licensed activity is illegal would negate this Portland Ordinance. Not legal, contrary to the 4A.
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Historyman1942
Regular Member
[strike]
Woops - I should read the staute first. There does not have to be RAS of a crime - a LEO has the right to stop you and check
D. It is unlawful for any person who possesses a firearm, clip or magazine in or upon a public place, or while in a vehicle in a public place, to refuse to permit a police officer to inspect that firearm after the police officer has identified him or herself as a police officer.
http://www.portlandonline.com/auditor/index.cfm?a=332592&c=28514
The preemption in state law voids anything more than what 166.173 allows as well. Portland also restricting the carry of mags on you for an unloaded weapon is void by preemption, and the ORS also defines a loaded weapon. A round in the chamber or in a mag attached to the weapon.
Since that's only for loaded carry they would still have yo know its loaded. RAS that its loaded is not RAS of a crime. Can't Daisy chain RAS per say. The courts have ruled the absence of a license does not give rise to RAS of a crime. So even if they knew for sure it was loaded without any doubt, stopping you to do a license check is unconstitutional. l, just like with drivers.
----- Sent from my mobile phone.
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Lord Sega
Regular Member
Ok, I see your point and I agree. A LEO would need RAS that it is loaded in order to perform the Terry stop to investigate and confirm, and a LEO can't get that from viewing it at a distance prior to performing the stop.
Kind of a Schrodinger's Cat dilemma for the Leo.
Just to play devil's advocate... it goes to court and when asked for his RAS the LEO uses gun owner's logic / safety rules against us, i.e.:
"Well, from a distance I am unable to tell if the holstered firearm is loaded, but since an unloaded gun is useless for defense, and safety rules say to treat all firearms as loaded until you have personally verified it's not, my reasonable suspicion was that much more likely than not that the firearm would be loaded otherwise why would he / she be carrying it. Since carrying loaded in Portland city limits is illegal without a CHL I approached the person to investigate whether he /she had a CHL or to confirm the firearm was in fact unloaded."
While it is weak, circular logic, I bet a judge and/or jury would buy it.
We-the-People
Regular Member
The way I see it, carry is not unlawful. If you have a CHL it can be loaded, if no CHL it must be unloaded. Therefore unless the officer has RAS that you don't have a CHL AND that it's loaded then they have no authority to detain you. Keep in mind, the "public building" allowance in state law that allows an officer to inspect a weapon IN a Public Building. But this isn't about a public building so the police can't (though they will try) use that section of state law.
Historyman1942
Regular Member
Again wrong. RAS of a crime, not just that it's loaded is need to do a terry stop. A terry stop allows for the limited search under RAS. Searches beyond this require probable cause. We-the-people gets it. They need to know for a fact it's loaded and have RAS you don't have a CHL. Even if they only knew its loaded, there is what's called an absence of a license because the officer doesn't see a license just by looking at you. The courts have ruled that an absence of a license that is needed to engage in a lawful activity "does not give rise to RAS of a crime."
----- Sent from my mobile phone.
This may be a minor semantical quibble, and if so I apologize but what cops can do pursuant to a terry stop IF there are specific articulable facts that the person is armed/dangerous (what are often referred to as "frisk factors") is a FRISK. Frisks are distinguishable from searches both by their scope (more limited) and by their purpose (a frisk is for weapons only not contraband). Contraband other than weapons can be revealed sometimes by a frisk but at least in my state, officers fortunately are limited from manipulating (feeling) an object further once they determine it's not a weapon (soft and squishy).
Even in case law you will sometimes see frisk and search used interchangeably, but they really are two different animals.
From what little I know of Oregon law, your analysis is sound vis a vis RAS etc.
Fwiw, we (our dispatch center) gets calls not infrequently complaining about somebody open carrying. We use it as an educational opp for the caller to learn that yes - open carry is both legal AND is also not RAS of a crime (of course). I'd say the two legal activities we got the most calls for were open carriers and bikini baristas (wearing merely pasties). The latter are perfectly legal as well to walk around in public but many soccer moms call because they think if the nearly nekkid barista is viewable by the general public, to include their kids, that this is some kind of violation. Another educational opportunity.
Historyman1942
Regular Member
Only thing I want to clear up in your post. Its both Armed AND Dangerous. You put armed/dangerous implying OR. The and is a key part of the ruling in Terry v. Ohio
----- Sent from my mobile phone.
----- Sent from my mobile phone.
You are correct. I did not mean to imply "or" and should have been more explicit with my "and".
Historyman1942
Regular Member
No problem, it just makes a big difference.
----- Sent from my mobile phone.
----- Sent from my mobile phone.
It certainly does, cheers. Glad to see there are people her knowledgeable on the law. It's quite refreshing compared to some sites.
We-the-People
Regular Member
Yep....Armed AND Dangerous under Terry........ I actually straightened out one of my law professors on that one as they were teaching "armed" under Terry. After I called them on it and they reread it, they changed the course. I wonder how long they taught it incorrectly?
Also, the FRISK / SEARCH issue is, as pointed out by another member, two different things. In the FRISK the officer cannot turn out your pockets (as we see done on just about any "cops" show. ONLY if they feel something that could be a weapon are they allowed to do more than simply pat down. ALSO, the frisk is limited to THE OUTER CLOTHING (per Terry).
So, spend an evening watching some "cops" reality show and see just how many times the cops actually comply with Terry. HINT: They break it quite often.
Also, the FRISK / SEARCH issue is, as pointed out by another member, two different things. In the FRISK the officer cannot turn out your pockets (as we see done on just about any "cops" show. ONLY if they feel something that could be a weapon are they allowed to do more than simply pat down. ALSO, the frisk is limited to THE OUTER CLOTHING (per Terry).
So, spend an evening watching some "cops" reality show and see just how many times the cops actually comply with Terry. HINT: They break it quite often.