State v. Christian

274 P.3d 262, 249 Or. App. 1, 2012 WL 937554, 2012 Ore. App. LEXIS 344

• Court: Court of Appeals of Oregon
• Decided: March 21, 2012
• Docket: 080951814; A142137
• Status: Published

Opinions

SCHUMAN, P. J.

Defendant was charged with two counts of violating a state law against carrying a concealed firearm, one count of violating a state law against carrying a concealed knife, and two counts of violating a Portland ordinance against carrying a firearm in a public place having recklessly failed to unload it. Before trial, he filed a “demurrer/motion to dismiss,” arguing that the concealed firearm statute and the Portland ordinance violate the Second Amendment to the United States Constitution and Article I, section 27, of the Oregon Constitution. The court denied the demurrer and motion, and defendant was subsequently convicted on all charges. On appeal, he assigns error to the denial of his demurrer and motion, but only insofar as the ruling rejected his challenges to the Portland ordinance; he does not challenge the state laws or appeal his other convictions. We conclude that the ordinance is constitutional. We therefore affirm.

INTERPRETATION OF PCC 14A.60.010(A)

By virtue of his demurrer and pretrial motion to dismiss, defendant chose to challenge the ordinance facially, that is, by contending that enactment of the ordinance violates the Oregon and United States constitutions regardless of the circumstances in which it was enforced or applied against him. See State v. Borowski, 231 Or App 511, 516, 220 P3d 100 (2009) (describing facial challenges). Two consequences flow from that choice. First, the only relevant facts in this case are that defendant was charged with, and tried for, violating the ordinance, and those facts are relevant only to establish that he has standing to challenge it; the circumstances surrounding his arrest play no part in our analysis. Id. Second, although generally a facial challenge to a law will fail if the law can constitutionally be applied in any imaginable situation, Jensen v. Whitlow, 334 Or 412, 421, 51 P3d 599 (2002), in a facial challenge under Article I, section 27, a starkly different analysis applies: If we determine that legislation is significantly overbroad — that, in some significant number of circumstances, it punishes constitutionally protected activity — we must declare the legislation to be unconstitutional, State v. Hirsch /Friend, 338 Or 622, 626-29, 114 P3d 1104 (2005) — although it is also important to note that “a statute that proscribes protected conduct only at its margins remains valid.” State v. Illig-Renn, 341 Or 228, 232, 142 P3d 62 (2006); see also New York v. Ferber, 458 US 747, 773, 102 S Ct 3348, 73 L Ed 2d 1113 (1982) (upholding, against a facial challenge, a statute “whose legitimate reach dwarfs its arguably impermissible applications”).¹

The ordinance at issue, Portland City Code (PCC)14A.60.010(A),² provides:

“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.”

There are 14 exceptions that “constitute affirmative defenses to a violation” of the ordinance, including for police and military personnel, persons with a concealed handgun permit, and hunters while hunting or going to or returning from a hunting expedition. PCC 14A.60.010(C).³

Most of the words and phrases in PCC 14A.60.010(A) have noncontroversial plain meanings: possess, carry, vehicle, remove, ammunition. “Public place” is defined elsewhere in the code (PCC 14A.10.010(0)) and is not controversial for purposes of this challenge. “Knowingly” and “recklessly” are not expressly defined in the code; however, PCC 14A.20.040 provides that the code “shall be construed so as to render it consistent with state criminal law,” and state criminal law— in particular, ORS 161.085 — defines the terms as follows:

“(8) ‘Knowingly or ‘with knowledge,’ when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists.

“(9) ‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

A violation of the ordinance occurs, then, when a person (1) possesses or carries a loaded firearm in a public place; (2) knows that he or she is carrying or possessing the loaded firearm and that the place is public; (3) recklessly does so anyway, that is, is aware of the fact that carrying the loaded firearm in public creates an unreasonable, unjustifiable risk; and (4) nonetheless consciously disregards that risk and bears the firearm in a public place anyway.

Defendant (and the dissent) under-appreciate the effect of the term “recklessly,” apparently contending that it refers only to the isolated act of not unloading the firearm, as opposed to that act and its inherent consequent risks when the loaded weapon is borne in public. That interpretation makes no sense logically or syntactically. It would result in a rule that prohibits carrying a loaded firearm in public, having at some point been aware of and consciously disregarding the risk that not unloading the firearm creates a significant, unreasonable, and unjustifiable risk of... a loaded firearm. To take an action recklessly — that is, aware of and disregarding the fact that the action creates a risk — the risk must be of something other than the action itself. We do not say that a person who drives recklessly does so because he or she drives while aware of and disregarding the risk that he or she will drive. The crime of reckless driving is made out only if the driving “endangers the safety of persons or property.” ORS 811.140(1).

“Recklessly,” however, itself incorporates another undefined term: “unjustifiable risk.” Defining that term is crucial, because consciously disregarding a justifiable risk is not reckless and is therefore not prohibited by the ordinance. Because the term “unjustifiable risk” is defined in the criminal code, ORS 161.085(9), the code’s related provisions in the same chapter and regarding “justification,” ORS 161.190 to 161.275, are relevant and instructive. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Of particular relevance to PCC 14A.60.010(A) are provisions governing the use of “deadly physical force,” because the risk of misusing loaded firearms is presumptively deadly. A person is justified in using deadly physical force against another person if the user reasonably believes that the other person is

“(1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or

“(2) Committing or attempting to commit a burglary in a dwelling; or

“(3) Using or about to use unlawful deadly physical force against a person.”

ORS 161.219. Further, a person is justified in using deadly-physical force in defense of premises “[w]hen the person reasonably believes it necessary to prevent the commission [by a trespasser] of arson or a felony by force and violence * * *.” ORS 161.225(2)(b).

Thus, adopting the meaning of “unjustified” into the definition of “recklessly” and the definition of “recklessly” into PCC 14A.60.010(A), we come to the following interpretation of that provision: A violation of the ordinance occurs if (1) a person possesses or carries a loaded firearm in a public place; (2) the person knows that he or she is carrying the firearm, that it is loaded, and that he or she is in a public place; (3) the person is conscious that being in a public place with the loaded firearm creates a substantial risk; (4) the substantial risk is unjustified, that is, it is not a risk that would inhere in using the firearm for the kinds of self-defense, defense of others, or defense of premises that are statutorily justified; and (5) the person nonetheless disregarded that risk.⁴

PCC 14A.60.010(A) AND ARTICLE I, SECTION 27

Article I, section 27, of the Oregon Constitution provides:

“The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]”

Does PCC 14A.60.010(A), as interpreted above, interfere with a person’s right to bear arms in defense of self or home? See State v. Kessler, 289 Or 359, 367, 614 P2d 94 (1980) (Article I, section 27, protects individual right to protect self or home). The history and scope of Article I, section 27, have been thoroughly and authoritatively discussed and reviewed by the Supreme Court, most recently in Kirsch ¡Friend, 338 Or at 632-78. We see no benefit in rehearsing that work here beyond restating its relevant conclusions:

“[W]hen the drafters of the Oregon Constitution adopted and approved the wording of Article I, section 27, they did not intend to deprive the legislature of the authority to restrict arms possession (and manner of possession) to the extent that such regulation of arms is necessary to protect the public safety. * * *

“That is not to say, however, that the legislature’s authority to restrict the bearing of arms is so broad as to be unlimited. Rather, any restriction must satisfy the purpose of that authority in the face of Article I, section 27: the protection of public safety. It follows that, although it has broad authority under that provision to assess the threat to public safety that a particular group poses, the legislature is not free to designate any group without limitation as one whose membership may not bear arms. Instead, such a designation must satisfy the permissible legislative purpose of protecting the security of the community against the potential harm that results from the possession of arms.

“The foregoing conclusion is consistent with the historical underpinnings of the right to bear arms * * *. It also is consistent with the early American arms restrictions and certain early practices * * * of disarming particular persons who threatened the state’s interest in maintaining security: The common thread among all those restrictions was their objective of protecting the public from identifiable threats to the public safety, such as serious criminal conduct and various harms resulting from the possession of arms (e.g., shooting within town limits).”

Id. at 677-78. In light of these precepts, the answer to the question raised above — Does PCC 14A.60.010(A) interfere with a person’s constitutional right to bear arms in defense of self or home? — seems self-evident. The ordinance does not prohibit a person from any conduct in home, even reckless conduct and intentional misconduct short of crime. It does not prohibit a person with a permit to carry concealed weapons from knowingly carrying a recklessly not-unloaded firearm in a public place. PCC 14A.60.010(C)(3) (exception for person licensed to carry a concealed handgun). It does not prohibit a person from carrying a recklessly not-unloaded weapon in a public place in order to engage in justified conduct — reasonable defense of self against felonious attack. Its prohibitory scope includes only a person who has knowingly carried a loaded firearm in a public place for some purpose other than defense of self or home from felonious attack, consciously disregarding the substantial risk that doing so will endanger public safety. Compared to the lawful sweep of the ordinance, such occurrences — if there are any — are rare outliers; thus, even if such occurrences were constitutionally protected, the statute would survive a facial challenge. Illig-Renn, 341 Or at 232 (statute that proscribes protected conduct only at its margins remains valid).

More to the point, the rare instances of conduct that the ordinance prohibits are not protected; rather, they are well within the city’s legislative authority as necessary to protect public safety, as that concept was understood when the Oregon Constitution was adopted and as it is understood today. As thoroughly explained by the dissent and by the court in Hirsch /Friend, statutes and ordinances regulating the possession of concealed weapons and completely banning the discharge of firearms in urban areas were commonplace and well accepted when the Oregon Constitution was adopted. Using such statutes as guidelines for determining the scope of Article I, section 27, today, the court in Hirsch / Friend concluded that statutes prohibiting the possession of firearms by felons pass muster under the Oregon Constitution. 338 Or at 678. In reaching that conclusion, the court in Hirsch/Friend reasoned that, although lawmakers had authority to restrict the right to bear arms in defense of self, that authority is not unlimited. Id. at 677. But the limiting principle is this: “[A]ny restriction must satisfy the purpose of that authority in the face of Article I, section 27: the protection of public safety, * * * [that is,] protecting the security of the community against the potential harm that results from the possession of arms.” Id. at 677-78. A narrowly drawn ordinance that penalizes a person only if he or she consciously disregards a substantial risk that failing to unload a weapon that he or she will carry or has carried into a public place for some unjustified purpose will cause substantial harm — such an ordinance trenches on no conduct that is protected by the right to bear arms as that right is guaranteed by Article I, section 27, as definitively construed.⁵

PCC 14A.60.010(A) AND THE SECOND AMENDMENT

The Second Amendment provides:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The protections afforded by the Second Amendment are incorporated into the Fourteenth Amendment and therefore apply against state and local governments. McDonald v. Chicago,_US_,_, 130 S Ct 3020, 177 L Ed 2d 894 (2010).

It is axiomatic that a law that is not proscribed by the Oregon Constitution may nonetheless violate the United States Constitution in the event that the federal guarantee affords more protection than the state guarantee. Unlike the challenge under the Oregon Constitution, however, defendant’s challenge under the Second Amendment can be disposed of with little difficulty. That is so because the standard for evaluating a facial overbreadth challenge under the Second Amendment is different from the standard under Article I, section 27. As noted above, 249 Or App at 4 n 1, under Article I, section 27, so-called “First Amendment over-breadth” analysis applies so that an enactment will be declared unconstitutional on its face if it is significantly over-broad, that is, if it would violate the constitution in any significant number of applications. Hirsch /Friend, 338 Or at 628-29. Under federal constitutional law, however, First Amendment overbreadth applies only to First Amendment cases; in Second Amendment cases, as in all other facial constitutional challenges outside of the First Amendment, the enactment will be declared unconstitutional only if it is unconstitutional in every conceivable application. United States v. Salerno, 481 US 739, 745, 107 S Ct 2095, 95 L Ed 2d 697 (1987); see also Ohio v. Akron Center for Reproductive Health, 497 US 502, 514, 110 S Ct 2972, 111 L Ed 2d 405 (1990) (“[B]ecause appellees are making a facial challenge to a statute, they must show that no set of circumstances exists under which the Act would be valid.” (Internal quotation marks omitted; emphasis added.)); U.S. v. Chester, 628 F3d 673, 688 (4th Cir 2010) (First Amendment overbreadth does not apply in Second Amendment cases). Because we have established that the ordinance is constitutional in almost every situation, it follows a fortiori that it is constitutional in some situations. At the least, it could for example be applied constitutionally to a person who carries a recklessly not-unloaded firearm into a courtroom or school. District of Columbia v. Heller, 554 US 570, 626, 128 S Ct 2783, 171L Ed 2d 637 (2008). PCC 14A.60.010(A) does not, on its face, violate the Second Amendment.

DISPOSITION

Defendant was convicted of violating several state statutes in addition to PCC 14A.60.010. He does not appeal the state law convictions, and we therefore affirm them. Regarding the Portland ordinance, defendant assigns error to the trial court’s denial of his demurrer and to his motion to dismiss. The demurrer and motion to dismiss were submitted before trial in a single document and supported by only one argument: that PCC 14A.60.010(A) is facially unconstitutional.⁶ Because we conclude that the trial court did not err in rejecting that argument, we must affirm defendant’s conviction under the ordinance, without necessarily agreeing that the facts as adduced at trial justify that verdict.

Affirmed.

1 It is also worth noting that this “overbreadth” rule derives from United States Supreme Court cases under the First Amendment, State v. Blocker, 291 Or 255, 261, 630 P2d 824 (1981), and is, in federal law, limited to such cases, Broadrick v. Oklahoma, 413 US 601, 611, 93 S Ct 2908, 37 L Ed 2d 830 (1973). As the Fourth Circuit has explained, overbreadth analysis addresses a “speech-specific problem, [Broadrick] at 611-12. * * * [Olverbroad regulations [of expression] can easily encourage speakers to modify their speech, shifting it away from controversy. No analogous arguments obtain in the Second Amendment context.” U.S. v. Chester, 628 F3d 673, 688 (4th Cir 2010) (emphasis added). Nonetheless, the Oregon Supreme Court in Blocker, 291 Or at 261, applied First Amendment overbreadth in the context of Article I, section 27, without explaining why the doctrine should apply outside of free expression or assembly cases, and Blocker was cited as authority inHirsch/Friend, 338 Or at 626-29 — again without explanation or analysis.

2 Portland has statutory authority to enact regulations of firearms. ORS 166.173(1).

3 “The following are exceptions and constitute affirmative defenses to a violation of [the ordinance]:

“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.”

4 ORS 161.115(3) provides, “When recklessness suffices to establish a culpable mental state, it is also established if a person acts intentionally or knowingly.” Thus, “intentionally” and “knowingly” incorporate the elements of recklessness, including the element of unjustifiable risk. State v. Cook, 163 Or App 578, 582, 989 P2d 474 (1999) (“By statutory definition, however, ‘reckless’ is subsumed within ‘intentional’ as a mental element actuating criminal conduct.”). As applied to PCC 14A.60.010(A), ORS 161.115(3) means that a violation of the ordinance is established if a person intentionally or knowingly creates an unjustified risk that harm will occur.

5 Although neither party advances an interpretation of PCC 14A.60.010(A) that is precisely the same as the one that we arrive at, the city does argue that the term “unjustified” limits application of the ordinance to rare circumstances. In any event, this court is obligated to correctly interpret laws even if the parties do not. Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997).

6 Defendant characterized the motion to dismiss as a motion “pursuant to ORS 135.630(4), on the grounds that because the applicable statute is unconstitutional, the facts stated do not constitute an offense[.]” ORS 135.630(4) provides that a “defendant may demur to the accusatory instrument when it appears upon the face thereof * * * [t]hat the facts stated do not constitute an offense.” (Emphasis added.) Thus, the assertion that the facts stated do not constitute an offense refers to the facts alleged in the information, not the facts developed at trial.