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Oregon City Inspection Provision - 9.24.020(E)

Discussion in 'Legal & Political Archive' started by Pittsmaster, Apr 30, 2015.

  1. Pittsmaster

    Pittsmaster Oregon City Life Member NRA, Former USMC, MBA, GOP, W7RWP Silver Supporter

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    Legal Question!

    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. A police officer stopping an open carrier to see if they are loaded is the same as a police officer pulling people over for the sole purpose of making sure they have insurance. Right?


    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. Pittsmaster

    Pittsmaster Oregon City Life Member NRA, Former USMC, MBA, GOP, W7RWP Silver Supporter

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    Crickets!......come on folks. Someone help me out here!
     
  3. BDA.45

    BDA.45 oregon Well-Known Member 2016 Volunteer

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    I completely agree.......after reading this numerous times I'm just as confused as you are....
     
  4. RLS

    RLS milwaukie Active Member

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    Me to.
     
  5. Stomper

    Stomper Oceania Rising White Is The New Brown Silver Supporter

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    I'll give it a shot...

    The 4A guards against unreasonable searches and seizures of your personage, personal effects/papers, and private property unless reasonable suspicion can persuade a judge to issue a search warrant based on a sworn statement by an LEO. An example of 4A violations pertaining to your scenerio would be if everyone (while out in public) were subject to systematic (or random for that matter) pat-down searches for weapons even though they've committed no suspicious actions.

    The scenario you've outlined with open carry constitutes a different matter. From the beginning of our country it has been a fine line of balancing public safety/interest and individual freedom/liberty. When you are on private property (yours or someone else's who's authorized you to be there) you can open carry to your heart's content, but when you're on public property it has been ruled that the "public" (via elected officials, etc.) has an interest in public safety and carries that out via whatever ordinances are in effect coupled with enforcement.

    By you open carrying in public within whatever jurisdiction has authority to regulate open carry, you subject yourself to public scrutiny as well as present a case for enforcement of that authority. Upon being confronted for open carry in public, its within the authority of an LEO to check for compliance of either the weapon being unloaded or you being in possession of a CHL if it is loaded.

    The same would apply to a CHL holder carrying concealed and a LEO spotting the weapon anyway. The LEO has probable cause to investigate the observation and ascertain if the individual has a CHL or is carrying illegally.

    Neither scenario is a violation of the 4A... like it or not.
     
    BoonDocks36, 308 and U201491 like this.
  6. U201491

    U201491 Well-Known Member

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    Yep all the way correct.
    Don't want hassles, keep it out of sight.
    If you have a chl then no worries.
    You have it, its legal, its yours and it does not give LE any reason
    to hassle you.
    Just a suggestion :):)
     
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  7. Pittsmaster

    Pittsmaster Oregon City Life Member NRA, Former USMC, MBA, GOP, W7RWP Silver Supporter

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    Hmmm. US v DeBerry states that the mere presence of a firearm cannot be used as RAS or PC. Also Oregon isn't a "Terry Stop" state. So I'm not sure how a city can pass an inspection law that contradicts state and federal law.

    As I read it, an LEO, in a city with this provision for inspection, operates under the constant assumption that all persons carrying guns are not CHL holders until proven otherwise and the LEO doesn't need a reason to suspect that the carrier is not a CHL holder. This sounds like guilty until proven innocent to me...and all because of the provision of inspection.

    It seems to me that if one were in a city without this provision, and one were openly carrying, an LEO couldn't legally detain you for an "investigation".
     
    Last edited: May 8, 2015
  8. U201491

    U201491 Well-Known Member

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    The person that can answer your question clearly would be Kevin Starrett of OFF.
    He has all those laws ingrained in his head I think. He is pretty sharp on the facts there.
     
    Last edited: May 8, 2015
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  9. decklin

    decklin WA Well-Known Member

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    With that reasoning a cop could stop you to make sure you have a drivers license.
     
  10. decklin

    decklin WA Well-Known Member

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    Not sure how to edit my post. It was directed at stomper.
     
  11. Pittsmaster

    Pittsmaster Oregon City Life Member NRA, Former USMC, MBA, GOP, W7RWP Silver Supporter

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    Right, and that is like saying they could pull people over with no suspicion of a crime to see if they have insurance. And the sole fact that they are driving a car gives LEO the right to check if they are legally driving with insurance.....
     
  12. Stomper

    Stomper Oceania Rising White Is The New Brown Silver Supporter

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    I'm on your side concerning the stated principle (believe me), but debate is good so let's try these scenarios.

    Apply your original argument when trying to enter a court facility. You're subject to an anti-4A search, and you're subject to anti-2A conditions.

    Entering ANY Federal facility, you're subject to a search, and weapons are ALWAYS prohibited. Anti-2A/4A

    Publicly funded airports; when attempting to enter the secure areas you must present ID and a reason to pass through (present your boarding pass) as well as go through an invasive screening of your personage and belongings (while Burka clad individuals are just waved on through). Anti-2A/4A

    Also, I'm not a lawyer (obviously), but I seem to recall something about the fact that cities are incorporated entities and that gives them a pretty broad hand in what they can get away with... like telling employers within it's boundaries how much they have to pay their workers, or dictate that they have to provide paid sick-days if they have "X" amount of employees.


    Check this link and read up: http://www.oregonlaws.org/ors/131.615

    This website is an AWESOME resource for finding Oregon Revised Statues.
     
  13. Pittsmaster

    Pittsmaster Oregon City Life Member NRA, Former USMC, MBA, GOP, W7RWP Silver Supporter

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    Ok I asked Kevin at OFF:

    Kevin,

    I know you are busy with a lot going on right now so don't feel obligated to get back to me right away, by any means.

    I just have a question about a city ordinance in Oregon City. They have an inspection provision. I'm trying to figure out if it is void because it violates the state preemption. This may be one of those things were someone will have to take a ride and fight it in the courts before that question can be answered but I just wanted to get your opinion. I also question weather a person has to give up their 4th amendment right when they carry a gun in a city with this type of inspection provision, since a person cant refuse to allow an LEO to inspect, and therefore will have to prove they have a CHL, which subsequently makes them ID themselves to an officer when they have done nothing wrong and there is not probable cause or reasonable articulable suspicion.

    I realize this is probably a huge wasp nest of law jargon so there no rush on this. You can even decline to provide an opinion and I wouldn't be offended.

    Thanks,

    Rob Pitts
    Oregon City, OR





    Rob,

    While I can’t say this is absolutely the right answer, my guess is this ordinance is not lawful.

    Currently the state law allows a cop to inspect a firearm carried by someone in a PUBLIC BUILDING. This very law may change soon as a result of a bill that would only require you show a cop a permit instead of your gun. But even that makes no sense since if you have a permit you can have a gun in a public building loaded or not.

    However, based on what my lawyers have told me, you have NO obligation to share your firearm with a cop when you are in a car. I simply cannot imagine how this could be lawful.

    I agree, I don’t think you need to provide ID unless you are being accused of a crime. I have gone round with the State Cops in the Capitol and they have kind of admitted they can’t demand a permit unless you’re being detained. That doesn’t mean they won’t try.

    Kevin
     
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  14. JamesRL

    JamesRL Beaverton Active Member

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    Just to be clear - Oregon is a "Terry stop" state because Terry vs. Ohio was a Supreme Court of the US case. What Oregon isn't is an "ID stop" state - meaning that the police cannot require you to show ID unless they have "reasonable suspicion of involvement in criminal activity" (i.e. a "Terry stop"). They can ask for ID but you are free to refuse, if they don't state that they have, again, "reasonable suspicion of involvement in criminal activity".

    However, if you are carrying a gun openly in Oregon City, a police officer would have reasonable suspicion of criminal activity (a lower standard than "probable cause") and could stop you and ask you to show ID and show your CHL. What the Oregon City statute says is that if you have a CHL, you don't have to let the officer "inspect" your gun - just show your CHL.

    In the "real world", if you are carrying a pistol openly in a jurisdiction that only allows CHL holders to do so, expect to be stopped and asked to show your CHL. Also realize that the police are allowed to stop you and ask you to show ID and your CHL, so don't get indignant.

    Whether or not the Oregon City statute is in compliance with the Oregon Constitution's pre-emption clause is another question , entirely. There are a lot of cities in Oregon that have made laws limiting or prohibiting open carry, so it's a problem in a lot of jurisdictions.



    Jim
     
  15. bnsaibum

    bnsaibum Corvallis, OR Well-Known Member 2015 Volunteer

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    Some of the testimony given by the City Attorney and the C.O.P. during the Corvallis open carry kerfluffle dealt with a similar issue. The gist of their testimony was such that anyone openly carrying (barring a select few places) could be approached by police, but the officer could not detain the person nor inspect the firearm without some sort of suspicion of criminal activity.
     
  16. U201491

    U201491 Well-Known Member

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    Police in many places do not actually know many of their own laws and what you can expect is that on occasion you may just meet the pavement and have your nose slid across it a foot or two and then hauled down to some mildew smelling jail while they then discover they had no right to do that. Just saying.... it happens LOL
    Then to cover their screw-up they will probably find some obscure law that you broke and charge you with it just to keep their butts out of the wringer. Now back this up to the beginning. Reboot and start again......hmmmm. Would be a perfect world if they were all required to graduate from Law school and with a minor in Constitutional law as well.... BUT....................

    Ohh and OC has had pushy COP syndrome since about the first of the 70's.
    They used to actually be human there.
     
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  17. The Heretic

    The Heretic Oregon Well-Known Member

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    This^^

    LEOs are just like anybody else, they will believe whatever rumors they hear, and it gets passed down from one person to another until it becomes gospel because everybody says it is. So yeah, I rarely believe what a LEO says the law is unless they can provide a cite, and even then I would suspect their interpretation. Most are not lawyers, and even lawyers specialize.

    Also, yes, they can arrest you at any time for nothing, and then if they find out they were wrong, they charge you with resisting arrest. Arresting you for resisting arrest may sound like circular logic, but it is a time tested and legal technique for harassing law abiding citizens who have done nothing illegal (at least nothing the LEO knows of). The only real defense to this is to have someone video taping the arrest and to not resist, otherwise it is your word against theirs.

    Even if you do prove that you weren't resisting, generally the charges are just dropped and nothing happens to the LEO, you are poorer (legal fees defending yourself) and you lost time off from work and spent time in jail, and probably have at least a few bruises and scrapes - plus you now have an arrest records.

    The balance of power is definitely in favor of those in power, and LEOs are the first line in that defense of the status quo.
     
  18. python287

    python287 Neskowin,OR Active Member

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    Nope it doesn't work that way - the Officer must have probable cause to make a traffic stop on you - Oregon law does not permit stopping you just to check to see if you have a drivers license - there must be a violation that was observed.
     
  19. PiratePast40

    PiratePast40 Willamette Valley Well-Known Member

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    Whew - glad to know that a cop would never stop someone without probable cause :rolleyes:! I was once stopped with the explanation of "I don't think you used your turn signal to change lanes back there". To think that you are always protected from wrongdoing by laws, is naive and dangerous. Let's face it, unless and until you are brought to court for the lawyers to argue the case, we really don't know how the law would be interpreted by any judge on any particular day. IMHO, the real question is why some think that poking at a hornets nest, for no particularly good reason, is a good idea. let's face it. a lone act of civil disobedience rarely has any effect or is even noticed.
     
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  20. decklin

    decklin WA Well-Known Member

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    I am aware. Please read all previous posts before replying. I am clearly not saying otherwise.