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Thread: Oregon City Inspection Law

  1. #1
    Regular Member Pittsmaster's Avatar
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    Oregon City Inspection Law

    The way I read this the Oregon City police can't inspect a gun that is open carried if you are a CHL holder. So you would have to provide evidence to the fact that you are a CHL holder...and this allows them to ID you, or let them inspect your firearm and find it loaded and then demand that you show you are a CHL holder...and this allows them to ID you. Does that inspection law violate the 4th amendment? Dont they have to have a reason to suspect that the firearm is loaded? Essentially the officers are going to enforce a city firearms inspection law that makes you ID yourself...where state law says its not a crime to legally carry a weapon. I know ORS 166.173 says that Cities or Counties can regulate loaded guns in public and then it says it doesn't apply to CHL holders. But all the while...city police will still make you prove you have CHL if they see you or get calls on you because of the inspection provision. Someone help me understand...I keep going back to the 4A......trying to figure out how they can pass or enforce a law that breaks the 4A.



    Oregon City
    9.24.020 - Carrying or discharge of weapons.
    A. It is unlawful for any person to carry a firearm, loaded or unloaded, in a park, school ground or public building.
    B. It is unlawful for any person on a public street or in a public place to carry a firearm upon his person, or in a vehicle under his control or in which he is an occupant, unless all ammunition has been removed from the chamber and from the cylinder, clip or magazine.
    C. It is unlawful for any person to fire or discharge a firearm within the boundaries of the city.
    D. The provisions in subsections A through C and subsection E do not apply to or affect:
    1. A law enforcement officer in the performance of official duty.
    2. A member of the military in the performance of official duty.
    3. A person licensed to carry a concealed handgun.
    4. A person authorized to possess a loaded firearm while in or on a public building or court facility under ORS 166.370.
    5. An employee of the United States Department of Agriculture, acting within the scope of employment, who possesses a loaded firearm in the course of the lawful taking of wildlife.
    E. It is unlawful for any person carrying a firearm upon his person, or in a vehicle under his control or in which he is an occupant, to refuse to permit a peace officer to inspect that firearm after the peace officer has identified himself as such.
    F. No person shall discharge a bow and arrow, BB gun or air gun within the city limits in a manner likely to endanger persons, animals or property.
    G. The prohibition in subsections C and F of this section does not apply to:
    1. Any person attempting to:
    a. Prevent the commission of a felony upon him or upon his or her husband, wife, parent or child,
    b. Prevent the commission of a felony upon his property or upon property in his possession, or upon or in any dwelling house where he is, or
    c. By lawful means, to arrest a person who has committed a felony or to suppress a riot or preserve the peace;
    2. The member, guest or patron of any licensed organization or business who, for the purpose of shooting practice, discharges a firearm upon an established target range or shooting gallery of that organization or business;
    3. A person conducting an athletic contest who fires blank ammunition toward the sky;
    4. Members of the armed forces firing blank ammunition at military ceremonies; or
    5. Persons authorized by permit of the chief of police to discharge blank ammunition for a lawful purpose. (Prior code § 6-4-2)
    (Ord. No. 12-1004, § 1, 5-2-2012)

  2. #2
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    If you are in a public building you must allow your firearm to be inspected if requested. If it is found to be loaded you must then produce a CHL. Failure to permit the inspection or produce a CHL for a loaded gun will result in your arrest. Otherwise you are not obligated to permit and inspection or produce your CHL simply because you are visibly carrying a firearm or city ordinance says they can.

    The city can regulate loaded carry for non-CHL people, but they cannot heap on additional inspection regulations as these are voided by ORS.

  3. #3
    Regular Member Pittsmaster's Avatar
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    Questions!

    Quote Originally Posted by SteveM View Post
    If you are in a public building you must allow your firearm to be inspected if requested. If it is found to be loaded you must then produce a CHL. Failure to permit the inspection or produce a CHL for a loaded gun will result in your arrest. Otherwise you are not obligated to permit and inspection or produce your CHL simply because you are visibly carrying a firearm or city ordinance says they can.

    The city can regulate loaded carry for non-CHL people, but they cannot heap on additional inspection regulations as these are voided by ORS.
    So you are saying that when I'm walking down the street in a city with an inspection provision an officer from that city cannot inspect my gun simply because i have a CHL in my wallet? or are you saying they cant inspect it if I show them the CHL? My point is, either way, I have to show them ID. The only scenario I see where I would not have to ID myself while carrying a gun in these cities was if it was unloaded and I was stopped and inspected and they found it was unloaded and then was free to go. Any other scenario an officer could demand ID/CHL if I was stopped with a loaded gun.

    Do we agree?


    Another question I have is what constitutes unloaded? Can I have an empty gun on my hip and a full mag in my pocket? Or how about a revolver on my hip and pocket of loose bullets?

    Thanks for your help.

    Rob

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    Regular Member 1245A Defender's Avatar
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    Well,,,

    Oregon is funny.
    Portland is funnier.
    A pocket full of cartridges is fine, in Oregon.
    A loaded mag equals a loaded gun in Portland.

    look it up!
    EMNofSeattle wrote: Your idea of freedom terrifies me. So you are actually right. I am perfectly happy with what you call tyranny.....

    “If ever a time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin.”

    Stand up for your Rights,, They have no authority on their own...

    All power is inherent in the people,
    it is their right and duty to be at all times ARMED!

  5. #5
    Regular Member Lord Sega's Avatar
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    First, I am not a lawyer, this is just my reading of the ORSs, I could be wrong.
    Second, this is a long post that jumps around the ORSs, I will try it keep it short and to the point.

    So, starting with ORS 166.170 State Preemption, allows cities only two "expressly authorized" ordinances for carry:
    1) ORS 166.172 Authority of city to regulate discharge of firearms, and
    2) ORS 166.173 Authority of city or county to regulate possession of loaded firearms in public places.

    Now, the city ordinance you quoted in the OP, Oregon City 9.24.020 part (E), somewhat copies:

    ORS 166.380 Examination of firearm by peace officer

    (1) A peace officer may examine a firearm possessed by anyone on the person while in or on a public building to determine whether the firearm is a loaded firearm.

    (2) Refusal by a person to allow the examination authorized by subsection (1) of this section constitutes reason to believe that the person has committed a crime and the peace officer may make an arrest pursuant to ORS 133.310 (Authority of peace officer to arrest without warrant). [1969 c.705 §3]


    BUT, the city ordinance is more restrictive (everywhere plus vehicles) than the state ORS (in a public building) and is therefore VIOD. The LEO would have to go by the state inspection ORS.

    Law are supposed to be written to tell people what they can't do, not what people (or LEOs) can do.
    So, you only break ORS 166.180 under part 2, by refusing to allow the inspection, so don't refuse, but don't give in either.
    This is where you start the "Am I being officially detained and if so under suspicion of breaking which law?" and "Am I free to go?"

    The LEO will say you are detained under Oregon City 9.24.020 (A) or (B), but is that RAS enough?
    Also, like Portland, Oregon City 9.24.020 (A) and (B) are VOID under preemption (red parts below):

    A. It is unlawful for any person to carry a firearm, loaded or unloaded, in a park, school ground or public building.
    B. It is unlawful for any person on a public street or in a public place to carry a firearm upon his person, or in a vehicle under his control or in which he is an occupant, unless all ammunition has been removed from the chamber and from the cylinder, clip or magazine.

    Now, arguing whether the law is VIOD or not under preemption is for the courts, not the street, so...
    Assuming the RAS (right or not) then if inspection is demanded / required it is only to "determine whether the firearm is a loaded firearm." So you could, prior to inspection, say (concede) that it is loaded. That should end the need to inspect, but I suppose the LEO will still want to verify. This is a good time to say "I do not consent to any search or seizure of my person or my property, but I will not resist."

    Now at that point the LEO could arrest you (loaded firearm), but you quickly state that you have a CHL and are exempt.
    So, yes you will have to show your CHL.

    Your "what constitutes unloaded" question: should be no round in the chamber and none in the firearm, but again they copied Portland and added the magazine / clip as well. It could be read that the magazine / clip must be empty even if carried separately from the firearm, but this goes beyond State Preemption and is VOID.

    Of course, my reading of this (especially the VOID parts) requires someone to get arrested and take it through the courts.
    Unless someone points out the problems in a very nice (diplomatic) way to the city council and gets them to fix / change the ordinance.


    Astoria had similar problems in following State Preemption that they have since fixed, but they still have other problems. One section that should have been removed didn't get removed, and their version of the firearm inspection is still there. I have e-mailed the Astoria City Council about this and they have forwarded it to the City Attorney. I am waiting to hear back.
    Last edited by Grapeshot; 06-12-2015 at 10:05 PM. Reason: Rule #19
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    Regardless of your CHL status and regardless of the loaded status of your firearm a police officer cannot stop you simply for carrying a firearm. They must suspect you of having committed a crime and be able to articulate that suspicion in order to stop you.

    The OC ordinance is void so if OCPD stops you and demands a CHL or firearm inspection then you get to decide if you want to play their games or refuse and be willing to get arrested and then sue the city for violation of your 4th amendment rights and slap them in the face with their void ordinance.

  7. #7
    Regular Member Pittsmaster's Avatar
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    Thanks!

    Quote Originally Posted by SteveM View Post
    Regardless of your CHL status and regardless of the loaded status of your firearm a police officer cannot stop you simply for carrying a firearm. They must suspect you of having committed a crime and be able to articulate that suspicion in order to stop you.

    The OC ordinance is void so if OCPD stops you and demands a CHL or firearm inspection then you get to decide if you want to play their games or refuse and be willing to get arrested and then sue the city for violation of your 4th amendment rights and slap them in the face with their void ordinance.
    Yeah, Sounds like someone needs to be willing to take a ride in order to prove this one out. My problem here is with how all these contradictions in state vs city law even get passed int he first place. I wish I would have been more into this when these city ordinances were passed.

    Thanks everyone for your input!

  8. #8
    Regular Member DaveT319's Avatar
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    I was just wondering about this after having watched the following video:
    https://www.youtube.com/watch?v=skpfzZ5vz14

    For those that don't watch the video: So this appears to be Portland, which as we all know has a loaded carry ban, including no rounds in the magazine (wouldn't want anyone to be able to quickly prevent themselves from becoming a victim...). He is stopped because someone called the cops because he was walking down the street with a gun - which is not in and of itself a crime. The officer takes his gun in spite of the person stating that he doesn't consent to the search or seizure of his property. It appears the weapon was loaded (not possible to confirm in the video, although the person makes a big deal about the cop having pointed it right at him while clearing it or checking to make sure the chamber is empty), which would be a crime without a CHL. The person then refuses to show his ID, stating (correctly) that simply walking down the street armed is not a crime. This all goes on for a few minutes until a supervisor arrives, at which point they say he is free to go.

    The main points to me here are that the guy didn't ID, and didn't show his CHL. For the sake of argument, let's say he doesn't even have one. As far as they know, he doesn't. He points out that simply carrying a gun is not RAS for a stop, per case law. He points out other case law that says he doesn't have to ID without RAS that he's committed a crime.

    Now, OC without a CHL actually IS a crime in Portland. But if they cannot ID him and he cannot be compelled to produce ID or a CHL due to case law, then isn't that law pretty much void? Sure, they can inspect the gun per ORS if he's in a public building, or in public per the Oregon City statute, but beyond that, what can they really do if you don't have to ID yourself, and therefore don't have to prove to them that you are legally allowed to carry? Isn't that assuming guilt and having to prove innocence, which is the opposite of what our legal system is founded on?

    For me, this is an important issue, because I OC all the time, as I refuse to get a permission slip from the government in order to exercise my right. If I have to get a license to carry, then my right is actually a privilege, and I don't buy that. So I will not be getting a CHL any time soon. But I also refuse to disarm based on the locale I'm in. Often times, I just conceal in those places. If they don't see it, they don't know that I'm technically violating the law, even though the law violates the 2nd Amendment. However, if I should decide to test the validity of the OC ban in Portland, I'm trying to figure out what my chances are of taking the ride and having to go to court. If I stick to my guns (pun intended) and refuse to ID or produce a CHL, they should have no grounds to proceed further.

    Interested to see others takes on this issue.

  9. #9
    Regular Member We-the-People's Avatar
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    Quote Originally Posted by DaveT319 View Post
    So this appears to be Portland, . . .
    I believe it is Portland Maine, not Oregon. Not sure on that but I seem to recall that this was in Maine when I first saw it and did some digging.




    Quote Originally Posted by DaveT319 View Post

    Now, OC without a CHL actually IS a crime in Portland.

    Incorrect. OC LOADED without a CHL is a violation of city law. OC itself is not a crime.




    Quote Originally Posted by DaveT319 View Post


    But if they cannot ID him and he cannot be compelled to produce ID or a CHL due to case law, then isn't that law pretty much void? Sure, they can inspect the gun per ORS if he's in a public building, or in public per the Oregon City statute, but beyond that, what can they really do if you don't have to ID yourself, and therefore don't have to prove to them that you are legally allowed to carry? Isn't that assuming guilt and having to prove innocence, which is the opposite of what our legal system is founded on?
    Okay here we go.....
    The inspection in a public building (ORS 166.380) is a 4th amendment violation without RAS that the person does not have a CHL (there are 180,000 plus CHL's in Oregon....basically 1 in 16 adults heading quickly towards 1 in 20). Without RAS of a crime (that the person is carrying without a CHL) the 4th amendment doesn't allow the detainment required to inspect a weapon as per ORS 166.380.
    As far as I know that hasn't been challenged so take the above however you want to proceed.

    The "or in public per the Oregon City Statute"...... the Oregon Revised Statutes ONLY allow cities to regulate the loaded carry of firearms by non CHL holders. The ORS does NOT allow cities to make suspicionless stops (i.e. inspect weapon) as ORS 166.380 allows in a public building. SO.....
    The city requirement to allow inspection violates both state law and the US 4th amendment.
    AGAIN....hasn't been challenged in court because every time it's charged, Portland drops the charges if the accused demands trial.





    Quote Originally Posted by DaveT319 View Post

    However, if I should decide to test the validity of the OC ban in Portland, I'm trying to figure out what my chances are of taking the ride and having to go to court. If I stick to my guns (pun intended) and refuse to ID or produce a CHL, they should have no grounds to proceed further.
    If you choose to be a test case, have a lot of money ready and the lawyer already lined up. Personally, I'd love to see this challenged and defeated but I have a CHL so I can't be a test case and I don't have the money to be one so I'm not looking to be one. I push where I can push for the time being.

    Good luck in whatever you decide.
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
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    Disclaimer: I am not a lawyer, nothing in any of my posts should be considered legal advice. If you need legal advice, consult a reputable attorney, not an internet forum.

  10. #10
    Newbie Cletus's Avatar
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    Quote Originally Posted by Pittsmaster View Post
    Yeah, Sounds like someone needs to be willing to take a ride in order to prove this one out. My problem here is with how all these contradictions in state vs city law even get passed int he first place. I wish I would have been more into this when these city ordinances were passed.

    Thanks everyone for your input!
    It all comes down to ORS 166.173 Simply put, exemption from preemption. ******** isn't it? I emailed my Rep this morning regarding this statute. With SB941 now signed we shouldn't need permits (or permission for rights we already possess) because every one will have background checks. Right? (sarcasm)

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