State v. A. W. (In re A. W.)

445 P.3d 938, 298 Or. App. 823

• Court: Court of Appeals of Oregon
• Decided: August 7, 2019
• Docket: A167107
• Status: Published

Opinion

PER CURIAM

*824Appellant seeks reversal of a judgment committing him to the Department of Human Services for a period not to exceed one year, ORS 427.215(1) and ORS 427.290, and an order prohibiting him from purchasing or possessing a firearm, ORS 426.130(1)(a)(D). In his first two assignments of error, appellant challenges his commitment on the bases that the record does not contain sufficient evidence that, due to an intellectual disability, appellant is a danger to himself and others and that the record does contain sufficient evidence that appellant was willing and able to participate in voluntary treatment. We reject those assignments of error without further discussion.

Appellant also challenges the order prohibiting him from purchasing or possessing a firearm under ORS 426.130(1)(a)(D).¹ He argues *939that that statute only applies to a "person with mental illness" and that there is no authority to apply that statute to a person found to have an intellectual disability. The state concedes that the trial court lacked a statutory basis on which to enter the firearm order against appellant. We agree, accept the state's concession, and reverse the order prohibiting appellant from purchasing or possessing a firearm.

Order prohibiting purchase or possession of firearms reversed; otherwise affirmed.

1 ORS 426.130(1)(a)(D) provides:

"After hearing all of the evidence, and reviewing the findings of the examiners, the court shall determine whether the person has a mental illness and is in need of treatment. If, in the opinion of the court, the person:

"(a) Is a person with mental illness based upon clear and convincing evidence, the court:

"* * * * *

"(D) Shall order that the person be prohibited from purchasing or possessing a firearm if, in the opinion of the court, there is a reasonable likelihood the person would constitute a danger to self or others or to the community at large as a result of the person's mental or psychological state as demonstrated by past behavior or participation in incidents involving unlawful violence or threats of unlawful violence, or by reason of a single incident of extreme, violent, unlawful conduct."