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Thread: Open Carry valid CHL holder

  1. #1
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    Hey guys,

    This forum is fantastic, keep up the good work.

    For some reason I keep finding myself a little in the gray as far as this question goes. I'm in Gresham and currently hold a valid CHL. I understand that Oregon is an Open Carry state but I'm unclear one on thing.

    With a valid CHL am I exempt from city open carry laws? I understand that I can go into Portland for example and be immune to their law if it is concealed. But if I open carry into Portland with a CHL does that also exclude me from their ban?

    I tried asking this question to the Multnomah County Sheriff's Office (Dept that issued my CHL) and specifically the CHL department, I got an "I don't know" from the clerk... go figure.

    Thanks for your help guys.

    ~Brian

  2. #2
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    The city's "open carry laws" are only about the firearm being loaded. With a valid CHL you are exempt from the city's rules and are able to open carry loaded. Without a CHL you would be required to not have a magazine attached to the firearm, as well as no ammo being loaded into the magazine, but a CHL exempts you from those restrictions.

    The only restrictions on you (with a CHL) would be from the Oregon Legislative Assembly.

  3. #3
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    Yes, I'm sure somebody will quote the exception as well, directly from the statutes.

    Problem is, police will claim that you will, (I quote)"Cause alarm." Somebody called the Beaverton police on me because I got out of my car, paid for gas, and left - apperently they said I was going to rob the gas station.

    Yea, very well dressed guy in a very nice car holding a $100 bill going up calmly to pay for gas. Right.

    Officer said, (Again, I quote) "We sent 8 squad cars..."

    Overkill. They didn't even show up when I was there, either. I was halfway to Mt. Hood when an officer called me.

    Check out my thread about the "Incident" in Beaverton...
    http://opencarry.mywowbb.com/forum45/16183.html

    Regardless, yes you can do it, because the officer stressed, (I quote) "It is perfectly legal to carry, but you will cause alarm." He didn't even mention the CHL, I brought it up and asked, so he was even more comfortable - but didn't change his answer.

  4. #4
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    brbourdo wrote:
    For some reason I keep finding myself a little in the gray as far as this question goes. I'm in Gresham and currently hold a valid CHL. I understand that Oregon is an Open Carry state but I'm unclear one on thing.

    With a valid CHL am I exempt from city open carry laws? I understand that I can go into Portland for example and be immune to their law if it is concealed. But if I open carry into Portland with a CHL does that also exclude me from their ban?
    Oregon has a law called preemption, which states that the only people who can make firearms laws is the Oregon legislature, and anybody they authorize to make firearms laws.

    Immediately after the preemption law is a statue that gives cities and counties permission to make firearms laws, but specifically states that the permission does not extend to holders of concealed handgun licenses.

    So it works like this:

    Oregon law makes it illegal to conceal a handgun without a license (concealing a long gun is A-OK), but does not make it illegal to carry one openly.

    Cities have permission to pass laws, but only if the laws they pass don't apply to concealed handgun license holders. Portland passed a law saying that loaded firearms (firearms, not handguns) weren't allowed within the city limits, but their law specifically exempts concealed handgun licensed holders (because if it didn't, it would be void per the pre-emption statute).

    An interesting side effect of our rather unusual preemption law is that one needs a concealed handgun license to openly carry a long gun in the city of Portland. Whoever thunk up the idea of needing a concealed license to openly carry, and a handgun license to carry a long gun... must have been a legislator. :P

    Here's the relevant portion of the Portland city ordinance:

    14A.60.010 Possession of a Loaded Firearm in a Public Place. - Printable Version

    A. It is unlawful for any person to knowingly possess or carry a firearm, in or upon a public place, including while in a vehicle in a public place, recklessly having failed to remove all the ammunition from the firearm.

    B. It is unlawful for any person to knowingly possess or carry a firearm and that firearm’s clip or magazine, in or upon a public place, including while in a vehicle in a public place, recklessly having failed to remove all the ammunition from the clip or magazine.

    C. The following are exceptions and constitute affirmative defenses to a violation of this Section:

    3. A person licensed to carry a concealed handgun.
    If they didn't have #3, the law would be illegal and void and repealed.

    Here is the revelant portions of the pre-emption statue, and the city and county authority to regulate firearms:

    AUTHORITY TO REGULATE FIREARMS

    166.170 State preemption. (1) Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition, is vested solely in the Legislative Assembly.
    (2) Except as expressly authorized by state statute, no county, city or other municipal corporation or district may enact civil or criminal ordinances, including but not limited to zoning ordinances, to regulate, restrict or prohibit the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition. Ordinances that are contrary to this subsection are void. [1995 s.s. c.1 §1]

    166.173 Authority of city or county to regulate possession of loaded firearms in public places. (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:

    (c) A person licensed to carry a concealed handgun.
    And here is Oregon's closest thing to a "brandishing" statute (although it's really more of an "assault" statute if you ask me):

    166.190 Pointing firearm at another; courts having jurisdiction over offense. Any person over the age of 12 years who, with or without malice, purposely points or aims any loaded or empty pistol, gun, revolver or other firearm, at or toward any other person within range of the firearm, except in self-defense, shall be fined upon conviction in any sum not less than $10 nor more than $500, or be imprisoned in the county jail not less than 10 days nor more than six months, or both. Justice courts have jurisdiction concurrent with the circuit court of the trial of violations of this section. When any person is charged before a justice court with violation of this section, the court shall, upon motion of the district attorney, at any time before trial, act as a committing magistrate, and if probable cause be established, hold such person to the grand jury. [Formerly 163.320]

  5. #5
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    Does this also apply to private property weapon bans? As far as I understand, in MI (where I used to live) you are also exempt from private property weapon bans as a valid carrier aswell. I don't believe that is true here, but I want to make sure.

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    brbourdo wrote:
    Does this also apply to private property weapon bans? As far as I understand, in MI (where I used to live) you are also exempt from private property weapon bans as a valid carrier aswell. I don't believe that is true here, but I want to make sure.
    Private property bans have force of law through the trespass statute: you can be asked to leave any establishment for any reason or no reason at all.

  7. #7
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    In all seriousness though, since I "caused alarm" according to Beaverton police, by open carrying - is there any possibility of the officers using this to possibly revoke my CHL?

    Again, like in my recent situation, I did nothing wrong - but if I was to open carry in another area of town and the same officer heard about it, is there any possible legal way for him to have my license revoked, even if I'm doing nothing wrong? Like I said, when I spoke with my friend from the Hillsboro police department, he said that even if you piss them off they can have it revoked. (Not that I would purposely do it, but perhaps the officers would become angry that I'm OCing in the first place, regardless of my actions.)

    Understand the question? If not, I'll clarify more, I just wanted to be as specific as possible.

  8. #8
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    CharlesAFerg wrote:
    In all seriousness though, since I "caused alarm" according to Beaverton police, by open carrying - is there any possibility of the officers using this to possibly revoke my CHL?

    Again, like in my recent situation, I did nothing wrong - but if I was to open carry in another area of town and the same officer heard about it, is there any possible legal way for him to have my license revoked, even if I'm doing nothing wrong? Like I said, when I spoke with my friend from the Hillsboro police department, he said that even if you piss them off they can have it revoked. (Not that I would purposely do it, but perhaps the officers would become angry that I'm OCing in the first place, regardless of my actions.)

    Understand the question? If not, I'll clarify more, I just wanted to be as specific as possible.
    As the issuing authority, they could "revoke" your license for any reason, the same way they could "arrest" you for any reason. But in doing so, they would be in violation of Oregon law, and liable for a a lawsuit under 42 USC §1983.

    According to the law, there are two reasons they may revoke you. Those are covered in ORS 166.293 (2) and (3)(a):

    166.293 Denial or revocation of license; review. (1) [Removed for brevity]

    (2) Notwithstanding ORS 166.291 (1), and subject to review as provided in subsection (5) of this section, a sheriff may deny a concealed handgun license if the sheriff has reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to self or others, or to the community at large, as a result of the applicant’s mental or psychological state or as demonstrated by the applicant’s past pattern of behavior involving unlawful violence or threats of unlawful violence.

    (3)(a) Any act or condition that would prevent the issuance of a concealed handgun license is cause for revoking a concealed handgun license.

    [remainder truncated for brevity]
    Basically, in plain English, 3(a) says you can be revoked for anything that would have originally caused you to be denied. (2) is the stickler: it's what we call the "willies" clause, because Sheriff's like to try to use it to revoke you if for some reason you give them the willies.

    The willies clause is highly defensible. Just read it for exactly what it says:

    a sheriff may deny a concealed handgun license if the sheriff has reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to self or others, or to the community at large, as a result of the applicant’s mental or psychological state or as demonstrated by the applicant’s past pattern of behavior involving unlawful violence or threats of unlawful violence.
    Does carrying a handgun openly, having never threatened or hurt anyone, give a Sheriff reasonable grounds to believe that you are a danger to yourself or anothers?

    NO!

    Do you have a past pattern (meaning at least twice) of making threats or using unlawful violence (ie., not acting in self defense)?

    Well, I hope not.

    If they do try to mess with you, James Luemberger has a good track record of defending people finding themselves trapped in the willies clause, believes in the OFF mission of unrestricted firearms ownership, and comes reasonably priced.

    That said, most threats to revoke are empty, designed to bring you into compliance. Same as most threats to arrest. Here's a hint: If the police could arrest you based on the circumstances, they would. They wouldn't threaten to. By not arresting you if they have the legal justification to, they are literally ignoring their general orders and not doing their job. Same goes for handgun licenses: if they truly believed they had standing to revoke your CHL, and weren't just threatening you, you'd already be fighting the revocation.

    As for the (3)(a) reasons you may be denied, they are covered in ORS 166.291, relevant portions below:


    166.291 Issuance of concealed handgun license; application; fees; liability. (1) The sheriff of a county, upon a person’s application for an Oregon concealed handgun license, upon receipt of the appropriate fees and after compliance with the procedures set out in this section, shall issue the person a concealed handgun license if the person: (a)(A) Is a citizen of the United States; or
    (B) Is a legal resident alien who can document continuous residency in the county for at least six months and has declared in writing to the United States Citizenship and Immigration Services the intent to acquire citizenship status and can present proof of the written declaration to the sheriff at the time of application for the license;
    (b) Is at least 21 years of age;
    (c) Is a resident of the county;
    (d) Has no outstanding warrants for arrest;
    (e) Is not free on any form of pretrial release;
    (f) Demonstrates competence with a handgun by any one of the following:
    [section removed. essentially says "by taking a safety course" in a lot of words]
    (g) Has never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony;
    (h) Has not been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor within the four years prior to the application;
    (i) Has not been committed to the Department of Human Services under ORS 426.130;
    (j) Has not been found to be mentally ill and is not subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness;
    (k) Has been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, the person was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470;
    (L) Has not been convicted of an offense involving controlled substances or participated in a court-supervised drug diversion program, except this disability does not operate to exclude a person if:
    [section removed. don't matter 'cause we're not druggies anyway]
    (m) Is not subject to a citation issued under ORS 163.735 or an order issued under ORS 30.866, 107.700 to 107.735 or 163.738;
    (n) Has not received a dishonorable discharge from the Armed Forces of the United States; and
    (o) Is not required to register as a sex offender in any state.


  9. #9
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    BUT....Can you OPEN CARY A LOADED GUN on PRIVATE PROPERTY with OUT a CHL with in cities that BAN Open carry with out a CHL?

    Can you Open carry a loaded gun on your own property with out a CHL in cities that ban it?

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