An Oregon Appeals Court decision has found that your car is now considered a "public place." That means that possessing a loaded firearm in a vehicle may be considered a crime if the locality in which you are traveling has a ban on open loaded carry.
This, of course, is naked in-your-face tyranny.
UPDATE: A lawyer weighs in and says it ain't exactly so...
42 comments:
So much for the jury box.
My suggestion is to call for the OGA to amend Oregon Statues 161.015 to include the wording: "excluding motor vehicles privately owned by individuals, businesses, and non-profit organizations."
There are some interesting possibilities now that privately-owned motor vehicles are considered a "public place", where the definition of the aforementioned includes "public transportation". Does that mean that every motor vehicle owner suddenly becomes a licensed taxi driver, and can charge fare? May Oregonians with cars draw from federal and state gas tax revenue to reduce their operational costs? May Oregonians take their motor vehicles into state garages for "free" maintenance service? Can drivers request the presence of Transit Police? (You can't carry a cop, but he can fit in your back seat!)
Hey, if it's a public place, can I be offended by a religious symbol and demand an order to remove it...:)
And if it's a public place, we can assume you have no expectation of privacy--does that mean no warrant would be needed to bug your car?
And using this rationale, why wouldn't your phone be a public place?
So I can hop into the car of anyone in Oregon b/c it is a public place and I am after all one of the public? I am sure that someone could make these judges look like asses if they gave a little effort.
Actually this is where we separate the men from the lawyers.
The case does NOT say that your car is a "public place."
The case says that a STREET is a public place, and that it doesn't matter what sort of container your loaded gun is in when it is in a public place (car, backpack, box, whatever), you cannot have a loaded gun in a public place without having a CHL.
I'm not saying I agree with the law, just pointing out that the case does not mean what everybody seems to think it means.
Yeah, I saw that hobbit. "...and highways, streets, schools, places of amusement, parks, playgrounds and premises used in connection with public passenger transportation. "
Of course streets ALSO are used by PRIVATE transportation.
I thought OR was an Open carry state....
ARE YOU ROMANIAN ? AI INAINTASI DIN ROMANIA ?
The case says that a STREET is a public place, and that it doesn't matter what sort of container your loaded gun is in when it is in a public place (car, backpack, box, whatever), you cannot have a loaded gun in a public place without having a CHL.
the logic of this conclusion is ridiculous.
your house is located in a town or city, and those are public. those, of course, are part of a state. and that, of a union. all public places.
shall we next legally define what containers are so as not to upset the state?
a weapon visually concealed among your personal effects, irrespective of the nature of those effects, is the only reasonable standard. nevermind that this whole case is laughable in that the manner in which you choose to bear arms is your own business, and yours alone.
If I am carrying inside my car, it is inside my clothing, too. This is why my line in the sand on this issue is that what is inside my clothing is part of my body and is no one else's business no matter where my body may be. Inside my car, on "public" streets, at the park, or in a store. My body; my business.
A street is a public place that is paid for by the taxpayers who in fact own it. To say that I lose my rights when I used something that I paid for, such as the streets is over the top.
What this ruling did was make it so people have no rights in public. You can bet this is ruling goes for RV's as well.
OR sucks and I personally refuse to go to that state and its not very far from my home town. That state has some of worst parasites in the country.
Oregon is an open carry state. I need to look at this further before I comment more.
Jon, is your house IN the street? I know mine sure isn't.
And yes, Oregon is an open-carry state EXCEPT for certain areas (Portland is one) that are allowed to regulate it to some degree. You can open carry if you have a CHL. In this case (having read it) the guy was not open carrying - the gun was stashed in his backpack. And I didn't get the impression that he had a CHL that would negate the ordinance.
Just to reiterate - I'm not saying that I agree with the law, what I'm saying is that the Court of Appeals, based on the rules of the game in front of them, arrived at a correct decision.
Do the police need an excuse to "search" a "public place"? If not, we in OR. are in for it. The police can walk right up, open the door, and "rifle" through our rigs anytime their on the street. What a country. Par course. It came out of Portland.
Oregonians know that there is no gravity in Portland; It just sucks.
Hobbit, So, my car i.e. "container", is no longer "private", in the state of OR.? This is a fine example of the evil of much speaking. Do I have a right to defend myself or not? Dear Osama, what i want for christmas is for you to come to Portland OR. and........
Oregon is an open carry state, allowing you to Open Carry almost anywhere. Preemption says nobody except the state legislature can regulate the ownership, storage, carrying, etc. of firearms. However, the legislature has allowed cities/counties to regulate where people may carry LOADED firearms in public places, and CHL holders are exempt from any such restrictions. So you CAN Open Carry a firearm in public in portland without a CHL, but it has to be unloaded.
It would be great to just get this asanine law overturned because it violates the Oregon State Constitution, Article 1, Section 27, "Right to bear arms; military subordinate to civil power. 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[.]" How can you bear arms for the defense of yourself if it's UNLOADED?
Anonymous (above ebd10 up there) that's not even close to what this case says. Where do you come up with that conclusion.
Anonymous (below ebd10) If your car is parked in your driveway, it's not going to be liable for any guns found in it, loaded or unloaded. So unless there is some other rule that applies, your car is still private - just don't put it in a public place and then have an officer allowed to search it.
Orygunner - nailed it!
Folks, this is not a "search" case. It's a "possession in the wrong place at the wrong time" case.
so, Hobbit, I have a right to defend myself...... Only under government controlled circumstances? Brillant!, peice of tyranny!
How is it that you suck right up to the intent of a load of appellate double speak. give congrats to Orygunner,(total agreement from me on that one). And let the Or. Constitution go right over your head? Why isn't the OR. atty.gen. going after Melanoma Co. for violation of the mans constitutional rights? What i'm sick of,(and i don't think i'm alone in this), is the B.S. hair-splitting. When everyone knows what the government wants. And it's got nothing to do with public,"safety". Which is their premise in the first place. Correct?
Well, that's a complete and total non sequitur.
Were you cross-posting from a different thread, perhaps?
Well we have a long way to go before we know how this will all shake out, but to the average person, it's hard not to conclude that the Court said your car is a "a public place." I mean either it is , or it is not. If it's not, local restrictions don't apply. If it is, local restrictions DO apply. But who knows what else will apply? The fact is Oregon's preemption law was written to address the problem that different places had different rules, but the court chose to ignore the legislative history, and thus its intent. This puts a lot of people in serous danger. In some places in Oregon, it's illegal to smoke in a "public place." We have to wonder if this will apply to cars now.
Victor: No, I'm an American. My ancestors were Romanian. But that has nothing to do with this post, which I need to keep on topic. Email me if you wish to discuss ethnic origins: dcodreaAThotmailDOTcom
-------------------------
All: Spirited discussion is good. I sense some heat building. Let us strive for light.
Hey Kevin! How goes it?
Unlike our last meeting at the show, I'm awake, alert, and aware.
I've been around this decision in a number of places now (why do I seem to be the only attorney with a gun in the state???) and I can see where the "average person" might read the case the way you're saying. But that's why I've apparently been sucked - against my will - into attempting desperately to correct the misunderstanding.
The decision is no threat to your smoking in your car, but you're free to wonder. ;-)
So unless there is some other rule that applies, your car is still private - just don't put it in a public place and then have an officer allowed to search it.
Orygunner - nailed it!
Folks, this is not a "search" case. It's a "possession in the wrong place at the wrong time" case.
12/15/2008 3:34 PM
"Some other rule"; Being the OR. constitution? Orgunners citation of art.1 sec. 27 Con. OR.? It's " possession in the wrong place at the wrong time" . Of what contraband? And if my car is private, Why can't i have a loaded gun in it? Maybe all lawyers should be,persona non grata?
"Some other rule" being, for example, "don't have your car being inventoried during a towing." Or "don't consent to a search when the nice officer asks you." Or don't do anything that can cause you to be subject to a pat down safety search.
Your car is private. The road is not. If your private car is not on the public road, it's not a problem.
As for the nongrataness of attorneys, it's an interesting concept, and yet nobody ever seems to want to call his car mechanic when they get that one call from jail or get served with papers. But your own mileage may vary on that. ;-)
So?...If I read this right. Could you open carry an unloaded firearm with the magazine out and the chamber or cylinders empty? I'm not saying that's an ideal solution but I'm figuring this as a work-around for the situation. After all, a quick "slap and rack" is probably better than no weapon at all..
That would seem to meet the definition of the gun not being loaded. I'd want to talk to a local attorney there, though, just in case the Portland PD has different ideas and arrests you anyway. You may well become a test case.
Do not get a public defender like the guy in the car case had, though.
Folks, I apologize for getting this thread off on a tangent. The first part of my post was serious. Oregonians shouldn't think that what they deem to be a bad decision by the courts is the final say. The state legislature can "fix" the problem with the statutes. I would offer that the public place exemption should also include one's body, but it's uncomfortable to think that it may not.
The rest of the post was my engaging in reductio ad absurdum for my own amusement. However, this discussion does emphasize the legal chaos resulting from the multitude of statutes attempting to make contraband out of items guaranteed by law. It is also interesting to think about how an officer of the law makes a determination about the state of a weapon where the chamber isn't visible, or whether a concealed weapon is present without a CHL.
My question is this:
How can the state of Oregon grant a power to restrict arms to a county or municipality when the state is expressly prohibited from restricting arms by Article I, Sec. 27 of its own constitution?
-and a corollary-
If the state can grant a power it doesn't possess, what's to stop it from granting itself the powers that it desires?
I'm sorry, but discussions of case law look more like Chinese business balance sheets every day; i.e. the participants keep more than one copy of the truth, and which truth is shown depends on who is asking.
from old anon."Some other rule" being, for example, "don't have your car being inventoried during a towing." Or "don't consent to a search when the nice officer asks you." Or don't do anything that can cause you to be subject to a pat down safety search.
Well, there it is. Any rule but the first one? After being towed. One has to pay an "impound" fee. Because it stored in an," secure impound yard". So why the "inventory", of a private object? "Pat down safety search"? Thats rich. So much for: Persons, houses, papers, affects. And the being secure in.-------------------------------------------------------------As for the nongrataness of attorneys, it's an interesting concept, and yet nobody ever seems to want to call his car mechanic when they get that one call from jail or get served with papers. But your own mileage may vary on that. ;-)
12/15/2008 5:43 PM
Yes, it makes me feel kind of sleazy, the thought of hiring someone to lie for me. That, and the fact that i'm a cheap bastard, more than able to perjure myself.
Those are easy questions (leaving aside any commentary on the prelude) to answer:
1. A State can do whatever it wants unless or until someone stops it.
2. Nothing, since that's pretty much what States do.
Okay, one comment on the commentary: Acutually there's really only one balance sheet. But people - particularly those not involved in The System - spend so much time looking for magic word solutions to their problems that they fail/neglect/refuse to recognize the reality of the situation. So they blame lawyers, or legislators, or courts, or whatever - when the actual answers are historically very plain and simple.
But unpalatable, therefore unrecognized. ;-)
Ouch. Guess I really can't argue with that answer.
But unpalatable, therefore unrecognized. ;-)
Very well recognized. Just not dicussed openly in violation of some hair-spliting rule handed down by some blackrobe. Oh, and homeland security? And who else is most to blame but lawyers, legislators, and courts? Please provide list.
It would appear this ruling upends long established tenets of common law "peaceable journey" as well as the curtailage movement as legislated around the country ("castle doctrine laws").
Some food for thought for those interested:
Chicago Motor Coach v. Chicago, 169 NE 221.
The use of the highway for the purpose of
travel and transportation is not a mere privilege, but
a common fundamental right of which the public and
individuals cannot rightfully be deprived."
Thompson v. Smith, 154 SE 579.
The right of the citizen to travel upon the
public highways and to transport his property thereon,
either by carriage or by automobile, is not a mere
privilege which a city may prohibit or permit at will,
but a common law right which he has under the right to
life, liberty, and the pursuit of happiness."
Kent v.Dulles, 357 US 116, 125.
The right to travel is a part of the liberty
of which the citizen cannot be deprived without due
process of law under the Fifth Amendment."
Schactman v. Dulles 96 App DC 287,225 F2d 938, at 941.
"The right to travel is a well-established
common right that does not owe its existence to the
federal government. It is recognized by the courts as
a natural right."
In Liberty,
JohnJacobH
www.johnjacobh.wordpress.com
And who else is most to blame but lawyers, legislators, and courts? Please provide list.
Ooh--I'll take that one:
The People.
The apathetic, disengaged, non-critical thinking, swayed by emotion, ignorant/uncaring of the Constitution people who enable and empower the lawyers, legislators and courts to do what they will with no personal costs.
Thank you, David - I couldn't come up with any answer that didn't sound more heat than light.
For JohnJacobH...no, it doesn't. It says you can't have a loaded gun in a public place in Portland, regardless of how you're carrying it, unless you're one of the Standard Oregon Exceptions.
Kevin does appear to be right (as he so often is) regarding how the average person is going to view the case, though.
Wow. 34 comments. My, what a busy thread! :D
Ooh--I'll take that one:
The People.
The apathetic, disengaged, non-critical thinking, swayed by emotion, ignorant/uncaring of the Constitution people who enable and empower the lawyers, legislators and courts to do what they will with no personal costs.
12/15/2008 9:04 PM
Total agreement, And i would add to the list our self-professed betters, those learned, studied,and papered few. Who have taken it upon themselves to change laws in our time of sloth & ignorance. I.E. Lawyers, legislators, courts, etc...
The case does NOT say that your car is a "public place."
The case says that a STREET is a public place, and that it doesn't matter what sort of container your loaded gun is in when it is in a public place (car, backpack, box, whatever), you cannot have a loaded gun in a public place without having a CHL.
LawHobbit, how is this not a distinction without a difference? If a car is a "container" of the same class as purses, backpacks and cardboard boxes, the "car is a public place" seems correct for practical purposes, if false in precise language.
If your car is parked in your driveway, it's not going to be liable for any guns found in it, loaded or unloaded. So unless there is some other rule that applies, your car is still private - just don't put it in a public place and then have an officer allowed to search it.
Again, since the main function of a car is to drive from one point to another, and sitting in your driveway is a secondary function, what is the practical status of your car?
The decision itself is not surprising; I've known to stay on the good side of Portland's unconstitutional laws since I took my CHL class. (The same class where the retired police officer teaching advised us that the dashboard of a car was a legal place to transport long arms since they would not be concealed.) Its still painful to lose one, and it points up an area we may need to fight out.
Lawhobbits points are well taken, but overlook somethings I think are relevant.
I think the court is saying that as long as your car is in a "public place" you have to obey the same rules in it that you would if you were on foot.
But I think that overlooks the common and reasonable expectation most people have that their vehicle has a higher standard of privacy than would another "container" left in a public place. Furthermore, I think it is critical that the court chose to ignore the legislative history of the legislation in question. Had they chosen to investigate it, they would see that Oregon's preemption statute was created mainly to prevent this kind of problem where a person left one jurisdiction where he was obeying the law and suddenly found himself in another, where his actions were criminal.
Oregon law makes specific reference to how firearms may be transported in vehicles. That leads me to believe that the legislature perceived cars to be different from "public places" which it addressed elsewhere in the law.
I think the court can make a case that having your gun in a car in a public place is the same as having your gun in a public place, but I don't think that is what the legislature intended and I don't think it would have taken this long to get an Appeals Court decision if most people or police thought your car was a "public place." No doubt this was not the first time a person was stopped in Portland with a gun in their car. (No doubt, because we have successfully defended people in the past on this very issue.)
Lawhobbit is viewing this (understandably) through the lenses of a lawyer, but the more fundamental issue (and one we hope Judges and future judges get) is that the law is plain about what a public place is, and it is a stretch to consider your car one.
LawHobbit
WHAT doesn't?
This case is a good example of why law and rights are too important to be
left in the hands of lawyers,academics and politicians.
You can invent a rationale to justify anything. Marie Antoinette had that gift to excess.
The practical effect remains: people who should not be disarmed and helpless become
paperwork criminals with real world jailtime and penalties.
Bad cases make bad law and bad lawyers fan out across the landscape to congeal the results.
See you in the aftertimes.
In Liberty,
JohnJacobH
www.johnjacobh.wordpress.com
My goodness, it's getting so that a guy can't even go and have a trial in peace without coming back to a boatload of unanswered questions, required comments, and further non seqiturism.
Bearing in mind, as always, that explanation does not equal agreement or support...
Lessee...in order of postage:
Dave: The distinction is that the car is a mobile container in a public place, the street. The legislature, in their infinite unwisdom, defined "public places" very clearly - one of those being "streets," and said, in further infinite unwisdom, that cities were allowed to regulate loaded firearms in public places, subject to some exceptions. So if you are in a public place, a street, in Portland, you are subject to the Portland ordinance that says "thou shalt not have a loaded gun." You can't carry the loaded gun in your backpack, you can't carry the loaded gun in your lunch box, you can't carry the loaded gun in your car. There was nothing particularly here to lose, other than getting Portland to dump the ordinance or the legislature to go for a complete preemption in regard to firearms. I do not like activist judges, whether they're working for me or not, and the problem here is not one to be resolved in the courts but rather in the legislature.
Kevin: I agree that people may have a common and (to them) reasonable expectation of privacy in a vehicle. But we both know that vehicles are actually even less private than, say, backpacks when it comes to searches. However, legislative history don't enter into it. ORS 166.173 says, flat out, that "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." ORS 161.015 includes "streets" as public places (but, interestingly, omits "sidewalks"). Portland then says "no loaded guns in public places." The links of the chain are straightforward and case law is simple - if the laws are not subject to multiple interpretations, there's no need to go dig around in the "legislative history" bunker. What the legislature intended is not near as relevant as what they wrote in plain English. This is not (unlike, say, the bad check statute) a couple of laws that need a degree in rocket science to understand.
You're also bypassing the part where it's a LOADED gun that is subject to the laws. Had Ward's gun been unloaded, we wouldn't be here. Some guy without a CHL wants to toss a couple unloaded 1911s in the back seat and head up to TPTS in Delta Park - he's okay.
Finally, what you're asking is not for judges to view what the plain law is. You're essentially asking them to rewrite what the plain law is because you don't like the result. Rewriting law is NOT a judge's job - that's the legislature. A judge could, at best, strike a law down as unconstitutional but that just leaves a hole in its place. A judge should not be legislating - at least to my point of view.
Part of the problem here is, of course, that Ward had a public defender as his attorney. It's unlikely he was getting the best representation possible, or that all the issues were covered. On the other hand, I'm not sure that Gerry Spence was going to convince the trial court or court of appeals to strike down 166.173 and - collaterally - Portland's ordinance.
JohnJacobH: Actually, you'd be astonished as to how much worse laws get when lawyers don't get involved. I've lost track of the number of crappy laws I've seen where the legislature just punts on its job and says "let the courts figure it out." Your points about rationales and disarmed victims are all well taken, and especially correct is the part about bad cases making for bad law. But unless you're going to spend lots of money to elect better legislators, or take Claire Wolfe's advice, you're stuck with the system as it is. Grumping about lawyers is all nice, well, and good - but I don't see non-lawyers doing any better at writing laws that preserve and extend liberty. Get active, run for office, go for the gusto!
*phew*
Now to go read the rest of our Kind and Gentle Host's bloggings...
LawHobbit:
Since you invoke the name of Gerry Spence I assume you refer to his spectacular
defense of Ed Cantrell wherein he overturned a slam dunk prosecution of his client with
an open court demonstration of how a man with a cocked, unholstered and aimed revolver could be shot by a man with
a completely holstered sidearm and thus justified his client's use of deadly force.
If that is the case to which you refer forgive my befuddlement at your arrival on a gun board
using( presumably) billable hours to justify a draconian usurpation by a local jurisdiction rather than use that
time and effort to enumerate the weaknesses of the ordinance and the manner in which it can be defeated,
overturned or rescinded and thus boost the morale of your fellow RKBA-ians.
It would seem your arguments and your example are at odds with each other.
After all, surely it is true Attorneys can argue both sides of a case based on who they represent and
no statute is completely without flaw or argument without merit.
The adversarial system is presumably the bedrock of our jurisprudence, eh?
What case would you argue if David Codrea were your client?
In Liberty,
JohnJacobH
www.johnjacobh.wordpress.com
The Infamous Oregon LawHobbit wrote:
> As for the nongrataness of attorneys, it's an interesting concept, and yet nobody ever seems to want to call his car mechanic when they get that one call from jail or get served with papers.
"Benjamin was the oldest animal on the farm, and the worst tempered. He seldom talked, and when he did it was usually to make some cynical remark - for instance he would say that God had given him a tail to keep the flies off, but that he would sooner have had no tail and no flies." -- ANIMAL FARM, George Orwell
For some reason the expressions "concocting the antidote and the poison in the same laboratory" and "playing both ends against the middle" spring irresistibly to mind.
Do not make the mistake of thinking us naïve.
Mark Odell
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