• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

The Open Carry Report

cotillion

Regular Member
Joined
Sep 17, 2011
Messages
18
Location
medford
A little OVER moderated don't ya think? When you're dealing with things people are passionate about obviously words will be slung around. Especially when stupid notions like open carrying long guns are supported.

Just sayin!
 

01rednavigator

Regular Member
Joined
Nov 27, 2011
Messages
17
Location
Oregon
I am sorry warren but I just have to say this cause it has bugged be in all of your videos. You need to take a speech class! Your speech pattern is very annoying and sounds childish!
 

Historyman1942

Regular Member
Joined
Mar 10, 2011
Messages
55
Location
Salem, OR
And if we "just cooperate" and show our papers, like good little sheep being prepared for further intrusions later.......

With a supposed call of "disorderly man with a gun", I'd like to hear the 911 tape and th dispatch recordings as to just what was called in as the complaint and what the officers were told on the radio.

What is absolutely ASTOUNDING to me is that the officer, supposedly concerned for his safety, places a loaded weapon on teh ground some distance behind him and then fixates on Warren as an unknown pedestrian walks up, and thankfully past, the pistol and then the officer and Warren. Now that's some pretty ****** situational awareness from an officer that is supposedly disarming Warren for "officer safety".

Then again, under Terry v Ohio, and subsequent decisions, the officer can only disarm a detained individual is he ascertains that the individual is armed AND dangerous.


A big one here people here should read and understand in regard to the officers repeated indication of the citizen compliant/call is Alabama v. White, 496 U.S. 325 (1990). There is plenty of other case law which establishes that lawfully carrying a firearm is not disorderly conduct. Also I Ref: Florida v. J.L

If the area in Medford required he have a CHL under provisions of ORS 166.173 then I Ref: Couture vs. Mass (if I recall correctly) it was ruled that the mere absence of a license does not give rise to reasonable suspicion or probable cause of criminal activity when it is legal to do so with a license. This goes off the same premise of being required to have on you a DL when driving a vehicle. However Policy cannot just stop your vehicle and do an ID check.

Also the officer made a statement that he must provide identification. In this circumstance he is not required to carry ID on his person as a US Citizen and Oregon also has no degree of a Stop & Identify Statute.
 
Last edited:

bigtoe416

Anti-Saldana Freedom Fighter
Joined
Jun 3, 2008
Messages
1,747
Location
Oregon
If the area in Medford required he have a CHL under provisions of ORS 166.173 then I Ref: Couture vs. Mass (if I recall correctly) it was ruled that the mere absence of a license does not give rise to reasonable suspicion or probable cause of criminal activity when it is legal to do so with a license. This goes off the same premise of being required to have on you a DL when driving a vehicle. However Policy cannot just stop your vehicle and do an ID check.

Is it Couture v. Commonwealth? That's the only case I could find but it doesn't look like it says anything about licenses really.

In the Georgia MARTA case you can see that in some circumstances police officers can detain an individual in order to verify that he has a license to carry. See also U.S. v. Rodriguez, which is a new case out of New Mexico.

Also, Florida v. J.L. doesn't say carrying a weapon doesn't amount to disorderly, it says some stuff about anonymous reporters of crime and it also says that there isn't a firearm exception to the fourth amendment.

It seems that open carry gives an individual more of a buffer to keep police away without a justifiable reason to be (legally) bothered. Conceal and people may not know you are carrying, but if a cop finds out somehow, you can be legally detained in some jurisdictions. I believe Oregon is such a jurisdiction based on ORS 166.260(4) mentioning "affirmative defenses" which are discussed reasonably well in U.S. v. McArthur, see paragraph beginning "To determine whether an exception to a criminal offense..." as well as subsequent paragraphs.

In the recent detainment of Warren, the officer said he was investigating a report of disorderly conduct. It's unlikely this was true because he didn't seem to be doing much investigating. However, if it was true, say Warren was blocking traffic earlier and somebody reported him. The officer should have detained him, brought the reporting party to Warren to identify him, and then cited and released him or arrested him.

But what happens?

He shows up, detains him, takes his firearm, does no investigating, then takes his time giving him back his property, while at the same time saying Warren isn't being detained. My favorite part is the line, "I absolutely respect your right to keep and bear arms." Then the NEXT THING he says is, "Now until I get back to my car, I'd appreciate it if don't touch your gun." Makes perfect sense. At least he reaffirmed my belief that anybody who says anything after, "I respect your right to keep and bear arms" does not respect the right.
 

Historyman1942

Regular Member
Joined
Mar 10, 2011
Messages
55
Location
Salem, OR
Is it Couture v. Commonwealth? That's the only case I could find but it doesn't look like it says anything about licenses really.

Also, Florida v. J.L. doesn't say carrying a weapon doesn't amount to disorderly, it says some stuff about anonymous reporters of crime and it also says that there isn't a firearm exception to the fourth amendment.

I apologize for not being as clear. My Ref of Florida v. J.L. was not specifically targeted at the issue of disorderly conduct.

The Georgia MARTA case however seems to be related specially to statute in the state of Georgia, at least based on what I have been able to read thus far. This is not applicable to the State of Oregon. However while Couture v. Commonwealth case was not handled in the district covering Oregon, it does provide a clear affirmation of the order of the motion judge with an affirming opinion regarding 4th amendment principles of the constitution vs. just the statue of a state.

Also Ref: http://masscases.com/cases/sjc/407/407mass178.html for Couture v. Commonwealth.


Absence of a license is not `an element of the crime,' as that phrase is commonly used. In the absence of evidence with respect to a license, no issue is presented with respect to licensing. In other words, the burden is on the defendant to come forward with evidence of the defense. If such evidence is presented, however, the burden is on the prosecution to persuade the trier of facts beyond a reasonable doubt that the defense does not exist." (Citation omitted.) [Note 3]

The Commonwealth argues that Jones and Toole, read together, lead to an "irrational" result, namely, that a police officer in the street must show more in determining that a gun is unlawfully carried than a prosecutor needs to prove to obtain a conviction. This argument is based on a superficial reading of the standard set forth in the Jones case. Jones dealt with the allocation of burdens in the context of a criminal trial. The particular burden to which the quoted passage from Jones pertains is not the burden of proof, but merely the burden of coming forward with evidence sufficient to raise an issue of fact. See P.J. Liacos, Massachusetts Evidence 37 (5th ed. 1981 & Supp. 1985). Where the defendant at trial has had every opportunity to respond to the Commonwealth's charge that the defendant was unlawfully carrying a handgun, where the defendant need only produce that slip of paper indicating that he was licensed to carry that gun, and where instead the defendant produces no evidence to that effect, the jury are entitled to presume that the defendant indeed did not have a license to carry the gun, and the Commonwealth need present no additional evidence to prove that point.

This scenario is a far cry from a defendant who, having merely been seen in public with a handgun, and without any opportunity to respond as to whether he has a license, is forced out of his vehicle at gunpoint and subjected to an invasive search. The Jones standard does not make an open target of every individual who is lawfully carrying a handgun.

We briefly add that, while the motion judge did not address this issue, the Commonwealth is incorrect in its claim that the stop and subsequent search of the vehicle was justified under the principles of Terry v. Ohio, 392 U.S. 1 (1968). There is no question that the stop of the pickup truck constituted a seizure within the meaning of the Fourth Amendment to the United States Constitution. See United States v. Cortez, 449 U.S. 411, 417 (1981); United States v. BrignoniPonce, 422 U.S. 873, 878 (1975). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, supra. As we discussed above, there is absolutely no indication that the defendant in this case was engaged in criminal activity. The mere possession of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun, and the stop was therefore improper under Fourth Amendment principles.

The order of the motion judge is affirmed.

So ordered.
 
Last edited:

Historyman1942

Regular Member
Joined
Mar 10, 2011
Messages
55
Location
Salem, OR
Also I want to point out a drastic difference between conceal and open carry in an area that requires a CHL and the language of the statute.


Ref from the MARTA case.
None of the cases cited by the Plaintiffs were from jurisdictions that treat a firearms license as an affirmative defense. See United States v. Ubiles, 224 F.3d 213, 214 (3d Cir. 2000); St. John v. McColley, No. 08-994, 2009 WL 2949302, at *4 (D.N.M. Sept. 08, 2009). Ubiles is a case from the Virgin Islands and, under Virgin Islands law, the absence of a firearm license is an element of the crime of unauthorized possession of a firearm. 14 V.I.C. § 2253(a); Gov’t of the V.I. v. Isaac, 45 V.I. 334, 342 (V.I. Terr. Ct. 2004). St. John is a case from New Mexico and, under New Mexico law, it is not a crime to carry a firearm without a license so long as the firearm is carried openly, which the plaintiff in St. John did. N.M. Stat. Ann. § 30-7-2; St. John, 2009 WL 2949302, at *4 (“[M]erely ‘showing a gun’ . . . is not illegal in the State of New Mexico.”). These cases are, therefore, distinguishable. See Collins, 2007 WL 4463594, at *4 (“Ubiles is distinguishable [because] the gun laws in the Virgin Islands are different from the gun laws in Pennsylvania.”).


With the way the law is written, it is clearly illegal to possess a concealed handgun in Oregon. However 166.262 indicates
166.262 Limitation on peace officer’s authority to arrest for violating ORS 166.250 or 166.370. said:
A peace officer may not arrest or charge a person for violating ORS 166.250 (1)(a) or (b) or 166.370 (1) if the person has in the person’s immediate possession a valid license to carry a firearm as provided in ORS 166.291 and 166.292. [1999 c.1040 §5]

The language of the statute makes this an affirmative defense. However the city/county ordiance statute reads:

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

Clearly you can see the difference in the application and language. The law makes clear the citizens responsibility to display and have in their immediate possession of a CHL if in violation of ORS 166.250 (1)(a) or (b) or 166.370 (1) and that failure to so can result in the charge. However 166.173 clearly said
Ordinances adopted under subsection (1) of this section do not apply to or affect:. Also it gives no clear indication that having the license in their immediate possession is required or that the officer may not arrest or charge the person. The absence of the language clearly gives no indication to this as an affirmative defense, especially in the absence of language explicitly indicating it as an "affirmative defense".

Clearly it can be shown that if the legislatures intent was to have this exemption as an affirmative defense and have the same requirement as shown with respect to 166.262, the language would have been more similar in indicating that "A peace officer may not arrest or charge a person for violating ORS 166.250 (1)(a) or (b) or 166.370 (1) IF".
 
Last edited:

We-the-People

Regular Member
Joined
Aug 13, 2009
Messages
2,221
Location
White City, Oregon, USA
It seems that open carry gives an individual more of a buffer to keep police away without a justifiable reason to be (legally) bothered. Conceal and people may not know you are carrying, but if a cop finds out somehow, you can be legally detained in some jurisdictions. I believe Oregon is such a jurisdiction based on ORS 166.260(4) mentioning "affirmative defenses" which are discussed reasonably well in U.S. v. McArthur, see paragraph beginning "To determine whether an exception to a criminal offense..." as well as subsequent paragraphs.

First off....read the sig line.....I am NOT a lawyer, this is not legal advice, nor did stay at a Holiday Inn last night.


166.260 Persons not affected by ORS 166.250.
(1) ORS 166.250 does not apply to or affect:
(h) A person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun.

The way that is written, 166.250 plain and simply "does not apply to or affect" a CHL holder....PERIOD.

Also look at 166.370 (4) which has a similar "affimative defense" provision for subsection (1) (Public Building) to that of 166.260 (4).

Then look at 166.262

166.262 Limitation on peace officer’s 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 (1)(a) or (b) or 166.370 (1) if the person has in the person’s immediate possession a valid license to carry a firearm as provided in ORS 166.291 and 166.292.

____166.260 (1)(a) is concealed upon the person.
____166.260 (1)(b) is concealed and readily accessible in a vehicle.
____166.370 (1) is in or upon the grounds of a "publc building"


If you have your CHL in your possession, 166.262 PROHIBITS police from arresting you under 166.250 for a concealed weapon or 166.370 for a weapon in/on a "Public Building". HOWEVER.........

You do not have to have your CHL in possession to avoid conviction of violating 166.250 or 166.370, ONLY to avoid arrest for violation of those sections. Show up in court with the CHL and the "affirmative defense" portion of 166.260 and 166.370 now comes into play.
 
Last edited:

We-the-People

Regular Member
Joined
Aug 13, 2009
Messages
2,221
Location
White City, Oregon, USA
To Historyman:

I think you're misreading it.

It is NOT unlawful to have a concealed weapon in Oregon. It is only unlawful to do so if you are not licensed to do so. Nor is it unlawful to carry concealed without your CHL in your possession. It's a heck of a lot more convienent if you are stopped by the police, but the "affirmative defense" portions of 166.260 and 166.370 CLEARLY show that it is not unlawful.

As for the city/county ordinances, if one is licensed, the ordinances DO NOT APPLY. Again, it is much more convienient to have your CHL in your possession if you desire to take advantage of it's priviledges.....BUT IT IS NOT REQUIRED. If the city/county ordinances do not apply to persons that are licensed, they plain and simply DO NOT APPLY. Silly you if you don't have it on you to show it to the officer on the street as you more than likely will be arrested and at a minimum cited and released, possibly booked....but when you produce the CHL, you are showing that the ordinace does not apply to you.
 

Historyman1942

Regular Member
Joined
Mar 10, 2011
Messages
55
Location
Salem, OR
To Historyman:

166.260 Persons not affected by ORS 166.250.
(1) ORS 166.250 does not apply to or affect:
(h) A person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun.


I missed the exemption in this section. I did know about it but in my tired late night state I overlooked it in my assessment. You are indeed correct.
 

bigtoe416

Anti-Saldana Freedom Fighter
Joined
Jun 3, 2008
Messages
1,747
Location
Oregon
Clearly you can see the difference in the application and language. The law makes clear the citizens responsibility to display and have in their immediate possession of a CHL if in violation of ORS 166.250 (1)(a) or (b) or 166.370 (1) and that failure to so can result in the charge. However 166.173 clearly said
Ordinances adopted under subsection (1) of this section do not apply to or affect:. Also it gives no clear indication that having the license in their immediate possession is required or that the officer may not arrest or charge the person. The absence of the language clearly gives no indication to this as an affirmative defense, especially in the absence of language explicitly indicating it as an "affirmative defense".

Hmm...I like your reasoning. So even with Portland's loaded firearm language saying possession of a CHL is an affirmative defense, it doesn't matter because that law does not apply to or affect CHL holders. Makes sense. Thanks for enlightening me, I was worried that the next time I was in a city that had banned loaded firearms that I could be legally harassed.
 

bigtoe416

Anti-Saldana Freedom Fighter
Joined
Jun 3, 2008
Messages
1,747
Location
Oregon
On Saturday I was back down in Eugene open carrying. I was briefly at the glasses shop near Market of Choice and the coffee shop next door. For lunch I had Toshi's Ramen again and picked up a donut at Voodoo before leaving the concrete mess that is downtown Eugene. No issues.

In Corvallis it's been more of the same, picked up a sandwich downtown without any issues. I got a burrito at Chipotle last week and while I was eating it I saw a guy in the reflection of the window walk by me and look hard at me and my sidearm. Five seconds later he walked by again staring at my back. He seemed to be on the way out with his family, but before exiting he had another glance back at me. I wonder how often I catch people staring versus missing it. It's a long walk to Chipotle, especially since I try to avoid walking through OSU when possible, lots of students were out and about, but again no issues.
 
Last edited:

Warren Drouin

Regular Member
Joined
May 27, 2011
Messages
125
Location
Medford, Oregon, United States
I went to Muchas Gracias at 7:50pm 1/21/2012 and was openly carrying my handgun (only). As I order my food a man with his wife said "this is America" and "Our Constitution is our license" to which I agree. Then the wife said "You must have a license to open carry"
Then the war started.
I reply "No, this is Oregon you don't need a license to open carry a firearm, but only to Concealed"

Wife replied "No, you need a license".

I replied "Lady, where you from".

Wife replied "..."

I "You are in Oregon and there is no law that stated that we must be license"

Wife "I guess"

Husband "Damn Right"

I "There other state the same and we have 4 states currently that pass constitutional carry. So, you need no license to carry concealed or open such as Arizone..."

Wife rudely interrupted my conversation with his husband

Wife "NO! You need a license to concealed in Arizona, You are wrong"

I "No, Arizona pass the constitutional carry law in 2010 (I think)"

Wife "NO (again with a bit of an attitude), your wrong, start learning the laws"

I " I have talked to lawyers and they agree with me"

Wife "....."

I "....."

I finish my food and left. I can't deal with people that won't listen and totally ignore the facts. I wanted to say she was an ass, but I did not.
 

VW_Factor

Regular Member
Joined
Nov 1, 2010
Messages
1,092
Location
Leesburg, GA
I simply won't argue with people like that. They can believe whatever they want, its still not the law. I carry a copy of ORS section 166 with me. (4 pages per sheet double sided, folds up nicely for a back pocket) I can toss that in their direction informing them, "This is all the Oregon firearms laws here".

Not many situations would warrant that, and I think I would not do that for a combative person more so, for a truly curious person.
 

bigtoe416

Anti-Saldana Freedom Fighter
Joined
Jun 3, 2008
Messages
1,747
Location
Oregon
This sounds like a good scenario where carrying the Oregon OC pamphlet would have been useful and could have educated somebody while not having to argue at all. I would have simply handed her a pamphlet and said, "Here is the relevant information on the subject" and continued doing whatever I was doing. Her husband might have liked to have the information too.
 

Cremator75

Regular Member
Joined
Aug 22, 2007
Messages
392
Location
Beaverton, Oregon, USA
I would never hand my phone to someone else. However I do have the .pdf version also on my phone.

I would not hand mine to an unfriendly either. I only show it to friends and family, but I can easily send it to someone curious and willing to give me their email instead of trying to tell them how to find it on this site.
 
Top