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Thread: Unlawful (preempted) Ordinance challenges across the state.

  1. #1
    Regular Member We-the-People's Avatar
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    Unlawful (preempted) Ordinance challenges across the state.

    Okay, it's been a year since I finished my document on Oregon cities with preempted firearms ordinances (and not preemped ones). I'm not aware of anyone having used the data to challenge any local ordinances in their area, including here locally.

    SO, I am about to embark (started already) challenging one or two cities at a time.

    First up is Medford where there is a "park rule" (but no underlying ordinance to support it) which prohibits all firearms.

    Anyone want to help with your local areas? Step right up!!!!!!


    OREGON FIREARMS ORDINANCES
    http://nebula.wsimg.com/243b901104cb...&alloworigin=1

    ALSO AVAILABLE THROUGH

    Little Brother Solutions at littlebrothersolutions.com
    "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.

  2. #2
    Regular Member We-the-People's Avatar
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    First up is Medford. Here's what's happened so far.

    Medford has no ordinances regulating firearms. But the Parks and Recreation department has "park rules" posted online and posted on signs at some parks which prohibit firearms....PERIOD. That's not allowed per ORS 166.170 and 173



    INITIAL MESSAGE SENT TO THE DIRECTOR OF PARKS AND RECREATION
    Sent 9 June 2015 at 5:59pm

    Mr. Sojthun,

    It has come to my attention that the park rules for City of Medford Parks contain a provision that is prohibited by state law (ORS 166.170) and that this prohibited provision, posted online and physically at at least some parks, could cause serious safety issues. At issue is the prohibition of firearms from public park areas.

    I would like to know whether you are aware of this error in the rules and what corrective action is being taken.

    Thank you,


    RESPONSE FROM Mr. SOJTHUN (Parks director)
    Received 10 June 2015 at 7:31am WOW FAST response even if it is "pass the buck"

    > I have forwarded your concerns to the Legal Department for their direction.
    >
    > Thank you,
    > Brian Sjothun
    >


    MY RESPONSE TO Mr. SJOTHUN
    Sent 10 June 2015 @ 1:39pm

    Brian,

    Thank you for your quick response. Please let me know what the legal department says.

    Thank you,






    CITY ATTORNEYS RESPONSE TO ME
    Received 10 June 2015 @ 4:03pm WOW again a fast response, though she's missed the point (that I wasn't supper clear on just to test the waters).


    > Thank you for your e-mail.
    >
    > State law gives local jurisdictions some authority to regulate or prohibit firearms in public places.
    >
    > ORS 166.173 says:
    >
    > (1) A city or county may adopt ordinances to regulate, restrict or prohibit the possession of loaded firearms in public places as defined in ORS 161.015.
    >
    > (2) Ordinances adopted under subsection (1) of this section do not apply to or affect:
    > (a) A law enforcement officer in the performance of official duty.
    > (b) A member of the military in the performance of official duty.
    > (c) A person licensed to carry a concealed handgun.
    > (d) A person authorized to possess a loaded firearm while in or on a public building or court facility under ORS 166.370.
    > (e) 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. [1995 s.s. c.1 §4; 1999 c.782 §8; 2009 c.556 §3]
    >
    > Medford city parks are considered public places under state law, so the city can prohibit loaded firearms in city parks (except for concealed carry permit holders).
    >
    > Thank you -
    >
    >
    > Lori J. Cooper
    > City Attorney


    AND MY RESPONSE BACK TO THE CITY ATTORNEY
    Sent June 12 2015 @ 12:05am

    Lori,

    Thank you for the quick response. However, while I agree that ORS 166.173 grants the city authority to ban the loaded carry of firearms by non CHL holders, the issue at hand does not comply with 166.173 or 166.170.

    Specifically,

    The prohibition is a complete prohibition per both the rules published online and the signs posted in the parks. Cities have not been given the "express authority" required by ORS 166.170 to prohibit firearms entirely nor to prohibit non CHL holders from carrying unloaded firearms. Under ORS 166.173, as you stated in your reply, only the carry of LOADED firearms by non CHL holders can be prohibited.

    In addition, the park rules are not an ordinance but merely park rules. I find no city ordinance, the requirement for prohibitions under ORS 166.173, authorizing any park rules let alone a prohibition on firearms. In the absence of a city ordinance prohibiting loaded carry of firearms by non CHL holders, the park rules are void per ORS 166.170 (2).

    This puts citizens, the city, and police officers in a difficult, possibly dangerous, and potentially expensive position. The average citizen, after reading the posted rules and then seeing another individual carrying a perfectly lawful weapon, may very well call 911 to report the "crime." At best, this wastes the limited resources of the police and 911 call center. At worst, it can quickly escalate, through any of a number of entirely plausible scenarios, into a deadly and/or expensive situation.

    Sincerely,
    Last edited by We-the-People; 06-12-2015 at 01:43 PM.
    "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)
    Beretta92FSLady
    http://forum.opencarry.org/forums/sh...ons-Bill/page5

    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.

  3. #3
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    Nice followup! Keep us informed.
    Chuck Norris/Ted Nugent That's the ticket for 2016!

  4. #4
    Regular Member We-the-People's Avatar
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    Quote Originally Posted by carracer View Post
    Nice followup! Keep us informed.
    Thanks, I will. Hopefully others will take it upon themselves to take their local cities to task if they are identified as having unlawful ordinances in the PDF that I worked so hard to produce.


    I noticed your tag line. Are you aware that Ted Nugent is anti open carry and called us wierdos? Yeah, he went down a few notches when I heard him talking **** about open carriers.
    "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)
    Beretta92FSLady
    http://forum.opencarry.org/forums/sh...ons-Bill/page5

    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.

  5. #5
    Regular Member Lord Sega's Avatar
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    Thumbs up Astoria city code is fixed!!!

    Astoria "fixed" their city code in Sept 2013 to align with ORS 166.170 & 166.173, so parts A & B are now correct.
    I found that part C should have been removed but was still in the city code.
    Also, part D was a 4th amendment (stop / seizure / search) issue.

    I contacted city councilman Russ Warr. He responded extremely promptly, and sent my concerns to the city attorney.

    I e-mailed for updates every couple of months, but no word from the city attorney.

    Just now, while writing this, I checked the city website and surprise! It has been corrected!

    LINK to updated city code of Astoria

    5.010 Carrying Loaded Firearm in a Public Place Unlawful
    (A) No person may possess a loaded firearm in a public places as defined in ORS 161.015.
    (B) Subsection (A) does 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 in the course of the lawful taking of wildlife.

    [Section 5.010 added by Ordinance No. 89-28, passed December 4, 1989; Sections 5.010 (A) and (B) amended and Sections (C) and (D) deleted by Ordinance No. 13-09 passed September 24, 2013.]


    I don't know what or who got them to change and correct it back in Sept 2013 (wasn't me), but I will take credit for finding and pushing for them to fix the C & D errors.

    ---------------

    Now, just need to get them to look at city code 5.005

    5.005 Firearm Defined.
    As used in 5.010, firearm means pistol, revolver, rifle, shotgun, gun, machine gun, pellet gun, BB gun or other similar device, including a miniature weapon, that projects a missile or shot by force of gunpowder or any other explosive by spring or by compressed air.

    [Section 5.005 added by Ordinance No. 89-28, passed December 4, 1989.]


    I believe that their definition exceeds the state legal definition of firearm. I need to locate the ORS and compare.
    "Guns are not the problem … crazy is the problem” ... “We cannot legislate our society to the craziest amongst us.” - Jon Stewart
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  6. #6
    Regular Member We-the-People's Avatar
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    Quote Originally Posted by Lord Sega View Post
    Astoria "fixed" their city code in Sept 2013 to align with ORS 166.170 & 166.173, so parts A & B are now correct.
    I found that part C should have been removed but was still in the city code.
    Also, part D was a 4th amendment (stop / seizure / search) issue.

    I contacted city councilman Russ Warr. He responded extremely promptly, and sent my concerns to the city attorney.

    I e-mailed for updates every couple of months, but no word from the city attorney.

    Just now, while writing this, I checked the city website and surprise! It has been corrected!

    LINK to updated city code of Astoria

    5.010 Carrying Loaded Firearm in a Public Place Unlawful
    (A) No person may possess a loaded firearm in a public places as defined in ORS 161.015.
    (B) Subsection (A) does 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 in the course of the lawful taking of wildlife.

    [Section 5.010 added by Ordinance No. 89-28, passed December 4, 1989; Sections 5.010 (A) and (B) amended and Sections (C) and (D) deleted by Ordinance No. 13-09 passed September 24, 2013.]


    I don't know what or who got them to change and correct it back in Sept 2013 (wasn't me), but I will take credit for finding and pushing for them to fix the C & D errors.

    ---------------

    Now, just need to get them to look at city code 5.005

    5.005 Firearm Defined.
    As used in 5.010, firearm means pistol, revolver, rifle, shotgun, gun, machine gun, pellet gun, BB gun or other similar device, including a miniature weapon, that projects a missile or shot by force of gunpowder or any other explosive by spring or by compressed air.

    [Section 5.005 added by Ordinance No. 89-28, passed December 4, 1989.]


    I believe that their definition exceeds the state legal definition of firearm. I need to locate the ORS and compare.

    It's nice to see that this has changed. My research was started in June 2014 and completed in Sept of 2014. At that time, the Astoria ordinance on the website was apparently inaccurate as it didn't reflect the new wording.

    I agree though that 5.005 is problematic as they expand the definition of firearm. However, the legislature hasn't defined firearm for use in 166.170 and 166.173. The definition of firearm in ORS 166.210 doesn't apply to ORS's before 166.250. Like I said....problematic as they will argue that the legislature didn't define firearm for 166.170 and 173 and so they defined it. I would argue that they don't have express authority to define the term.

    Anyone want to be a test case?
    Last edited by We-the-People; 06-23-2015 at 06:42 PM. Reason: Originally had research dates inverted. Error caught by the very observant Grapeshot and now corrected.
    "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)
    Beretta92FSLady
    http://forum.opencarry.org/forums/sh...ons-Bill/page5

    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.

  7. #7
    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by We-the-People View Post
    It's nice to see that this has changed. My research was started in Sept 2014 and completed in June of 2014. At that time, the Astoria ordinance on the website was apparently inaccurate as it didn't reflect the new wording.

    I agree though that 5.005 is problematic as they expand the definition of firearm. However, the legislature hasn't defined firearm for use in 166.170 and 166.173. The definition of firearm in ORS 166.210 doesn't apply to ORS's before 166.250. Like I said....problematic as they will argue that the legislature didn't define firearm for 166.170 and 173 and so they defined it. I would argue that they don't have express authority to define the term.

    Anyone want to be a test case?
    Typo - completed research before you started it.
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  8. #8
    Regular Member We-the-People's Avatar
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    Quote Originally Posted by Grapeshot View Post
    Typo - completed research before you started it.
    Good catch Grapeshot.....I inverted the dates and will go edit the post. Things like that happen when you are on pain killers for a broken wrist and typing with one hand.....LOL

    Doing better now. No pain killers, typing with both hands, but still having difficulty with the left's dexterity. Slows down a touch typist rather dramatically and seriously messes with the typo rate.
    "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)
    Beretta92FSLady
    http://forum.opencarry.org/forums/sh...ons-Bill/page5

    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.

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