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Thread: A loaded question

  1. #1
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    Consider the following:

    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]

    And the 'express authorization by state statute' to restrict 'loaded firearms':


    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:
    (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. [1995 s.s. c.1 §4; 1999 c.782 §8]
    ORS 161.015 defines 'public place' but not 'loaded firearms'. For THAT definition we go to:

    166.360 Definitions for ORS 166.360 to 166.380.
    As used in ORS 166.360 to 166.380, unless the context requires otherwise:
    (1) “Capitol building” means the Capitol, the State Office Building, the State Library Building, the Labor and Industries Building, the State Transportation Building, the Agriculture Building or the Public Service Building and includes any new buildings which may be constructed on the same grounds as an addition to the group of buildings listed in this subsection.
    (2) “Court facility” means a courthouse or that portion of any other building occupied by a circuit court, the Court of Appeals, the Supreme Court or the Oregon Tax Court or occupied by personnel related to the operations of those courts, or in which activities related to the operations of those courts take place.
    (3) “Loaded firearm” means:
    (a) A breech-loading firearm in which there is an unexpended cartridge or shell in or attached to the firearm including but not limited to, in a chamber, magazine or clip which is attached to the firearm.
    (b) A muzzle-loading firearm which is capped or primed and has a powder charge and ball, shot or projectile in the barrel or cylinder.

    (4) “Public building” means a hospital, a capitol building, a public or private school, as defined in ORS 339.315, a college or university, a city hall or the residence of any state official elected by the state at large, and the grounds adjacent to each such building. The term also includes that portion of any other building occupied by an agency of the state or a municipal corporation, as defined in ORS 297.405, other than a court facility.
    (5) “Weapon” means:
    (a) A firearm;
    (b) Any dirk, dagger, ice pick, slingshot, metal knuckles or any similar instrument or a knife other than an ordinary pocket knife, the use of which could inflict injury upon a person or property;
    (c) Mace, tear gas, pepper mace or any similar deleterious agent as defined in ORS 163.211;
    (d) An electrical stun gun or any similar instrument;
    (e) A tear gas weapon as defined in ORS 163.211;
    (f) A club, bat, baton, billy club, bludgeon, knobkerrie, nunchaku, nightstick, truncheon or any similar instrument, the use of which could inflict injury upon a person or property; or
    (g) A dangerous or deadly weapon as those terms are defined in ORS 161.015. [1969 c.705 §1; 1977 c.769 §2; 1979 c.398 §1; 1989 c.982 §4; 1993 c.741 §2; 1999 c.577 §2; 1999 c.782 §6; 2001 c.201 §1]
    Realizing that this Statute specifies that these definitions are for ORS 166.360-.380 I'm wondering if they would be applicable to the rest of state law as there are no other definitions for 'loaded firearms' that I have yet found. (I suppose there may be something under the hunting reg's, but I haven't looked yet.)

    Let us presume for the moment that this is the 'definitive' definition though. Would this not throw Portland's (IMHO poorly/arrogantly worded) ordinance (See below) against loaded firearms, and magazines not attached to the firearm, into question?

    14A.60.010 Possession of a Loaded Firearm in a Public Place.
    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:
    1. A police officer or other duly appointed peace officers, whether active or honorably retired.
    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 under ORS 166.370.
    5. A government employee authorized or required by his or her employment or office to carry firearms.
    6. A person summoned by a police officer to assist in making arrests or preserving the peace, while such person is actually engaged in assisting the officer.
    7. A merchant who possesses or is engaged in lawfully transporting unloaded firearms as merchandise.
    8. Organizations which are by law authorized to purchase or receive weapons from the United States or from this state.
    9. Duly authorized military or civil organizations while parading, or their members when going to and from the places of meeting of their organization.
    10. A corrections officer while transporting or accompanying an individual convicted of or arrested for an offense and confined in a place of incarceration or detention while outside the confines of the place of incarceration or detention.
    11. Persons travelling to and from an established target range, whether public or private, for the purpose of practicing shooting targets at the target ranges.
    12. Licensed hunters or fishermen while engaged in hunting or fishing, or while going to or returning from a hunting or fishing expedition.
    13. A person authorized by permit of the Chief of Police to possess a loaded firearm, clip, or magazine in a public place in the City of Portland.
    14. A security guard employed at a financial institution insured by the Federal Deposit Insurance Corporation while the security guard is on duty.
    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.
    Portland's city code makes it clear that they prohibit the posession of a loaded magazine for a firearm you are currently in posession of even if it's not attached to the firearm, which is NOT a restriction 'expressly authorized by state statute' as it pertains to the 'possession' of an 'element relating to firearms and components thereof, including ammunition', and ergo SHOULD be null and void per ORS 166.170.

    Thoughts?

  2. #2
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    Oh come on!....60+ views and no one has an opinion?

  3. #3
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    Well since 166.360 hasdefinitions for ORS 166.360 to 166.380, but not 166.170 & 166.173 thenthe definition of "loaded firearms" in 166.173would stillbe up for debate.

    If there is no indication in Oregon codes that state what the definition of "loaded firearms" in 166.173 is,then there is obviously a flaw in the law. You could try it out and go to court:what:.

    IMO, there are two questions to be asked here:

    1. Does 166.360 contain the only definition of "loaded firearm", if not, are definitions in other areas similar or congruent with 166.360's definition of a "loaded firearm"?

    2. Provided a yes to the above: Is there a "catch all" ORS statute or"case" that says/impliesdefinitions will be taken only from other parts ofstate code if not expressly written for the section in whichcontains the word(s) you arerequiring a definition for?


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    Phssthpok wrote:
    Consider the following:

    14A.60.010 Possession of a Loaded Firearm in a Public Place.
    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.
    Thoughts?
    Well, I could argue that my having not removed all the ammunition was not reckless at all, but very deliberate and intentional...

  5. #5
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    rpyne wrote:
    Phssthpok wrote:
    Consider the following:

    14A.60.010 Possession of a Loaded Firearm in a Public Place.
    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.
    Thoughts?
    Well, I could argue that my having not removed all the ammunition was not reckless at all, but very deliberate and intentional...
    Plus...where is the law requiring the action (removing the ammunition) that THIS law makes it illegal to 'fail' to perform? (Think in terms of the IRS and 'failure to file' charges.)

    Worded as it is one is left with the impression that it's a two element requirement for conviction: 1) you must have FAILED to perform a required action, 2) that failure must be RECKLESS in nature.

    That's why I said that IMHO the ordinance is very poorly/ARROGANTLY worded.



  6. #6
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    To me, there are several contradictions in these laws. 166.170 basically says that no county or city can enact ordinences without state authorization, then they turn around in 166.173 and give them that authorization. 14A.60.010 basically state(to me anyway), that unless I am a CHL holder I cannot open carry in any public places. Am I missing something or just cunfusing the whole issue. Franckly, I hate lawyerspeak anyway, why can't they just word it so you can understand it?

  7. #7
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    What's the general consensus on our AG?

    Do you think it would be worth while to ask for an unofficial opinion? Seriously

  8. #8
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    Unfortunately, 166.360 states including but not limited to which says to me that you can't take from, but you can add to it. That's where the catch is, so I wouldn't try it with out a CHL.

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