Oregon - go to jail for a loaded clip/magazine ?!?

[Lord Sega]

IANAL... but does not the State Preemption (see highlight) make the unloaded clip/magazine city ordinances null & void? Cities (and counties) are expressly authorized by state statute to pass ordinances of "loaded firearms in public places", not clips or ammo. I listed Astoria's and Portland's as examples since they are near me or I have family there.

Of course, with a CHL you are exempt, but for those who don't have CHL, or can't (18-20 year olds).....

Has anyone challenged this yet?

It's rules like these that made me get a CHL, just so I don't have to worry about crossing an invisible border and breaking the law (county border, city border, GFSZ 1000' border, etc).

I am trying to find in Oregon Law the official definition of "loaded", any help would be appreciated.

OREGON STATE
166.170 State preemption. (1) Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition, is vested solely in the Legislative Assembly.

(2) Except as expressly authorized by state statute, no county, city or other municipal corporation or district may enact civil or criminal ordinances, including but not limited to zoning ordinances, to regulate, restrict or prohibit the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition. Ordinances that are contrary to this subsection are void.

166.173 Authority of city or county to regulate possession of loaded firearms in public places. (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:
...
(c) A person licensed to carry a concealed handgun.

ASTORIA
5.010 Carrying Loaded Firearm Unlawful.
(A) No person shall knowingly carry a firearm, loaded or unloaded, in a park, school ground or public building.
(B) No person on a public street or in a public place shall knowingly carry a firearm upon the person, or in a vehicle under the person's control or in which the person is an occupant, unless all ammunition or missile has been removed from the chamber and from the cylinder, clip or magazine.
(C) Subsections (A) and (B) of this section shall not apply to:
...
(3) Any person having a valid permit issued to the person by lawful authority to carry or use concealed firearms;

PORTLAND
14A.60.010 Possession of a Loaded Firearm in a Public Place.
A. 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.
B. It is unlawful for any person to knowingly possess or carry a firearm and that firearm’s clip or magazine, 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 clip or magazine.
C. The following are exceptions and constitute affirmative defenses to a violation of this Section:
...
3. A person licensed to carry a concealed handgun.

 

[Cremator75]

I never noticed that before. I think you may have a valid point. It has never been challenged to to the best of my knowledge. There must be someone we could contact in Salem to see if the "banned cities" are over stepping their bounds.

 

[NavyMike]

Snip

IANAL... but does not the State Preemption (see highlight) make the unloaded clip/magazine city ordinances null & void? Cities (and counties) are expressly authorized by state statute to pass ordinances of "loaded firearms in public places", not clips or ammo. I listed Astoria's and Portland's as examples since they are near me or I have family there.

I am trying to find in Oregon Law the official definition of "loaded", any help would be appreciated.

There is a definition for "loaded" in a later section of the ORS, though the question would still remain as to whether the definition is also valid for ORS 166.173:

POSSESSION OF WEAPON OR DESTRUCTIVE DEVICE IN PUBLIC BUILDING OR COURT FACILITY

166.360 Definitions for ORS 166.360 to 166.380. As used in ORS 166.360 to 166.380, unless the context requires otherwise:
(1) “Capitol building” means the Capitol, the State Office Building, the State Library Building, the Labor and Industries Building, the State Transportation Building, the Agriculture Building or the Public Service Building and includes any new buildings which may be constructed on the same grounds as an addition to the group of buildings listed in this subsection.
(2) “Court facility” means a courthouse or that portion of any other building occupied by a circuit court, the Court of Appeals, the Supreme Court or the Oregon Tax Court or occupied by personnel related to the operations of those courts, or in which activities related to the operations of those courts take place.
(3) “Loaded firearm” means:
(a) A breech-loading firearm in which there is an unexpended cartridge or shell in or attached to the firearm including but not limited to, in a chamber, magazine or clip which is attached to the firearm.

 

[We-the-People]

IANAL either but as the state statutes are written you are correct.....cities and counties are not EXPRESSLY AUTHORIZED to regulate the manner in which ammunition or firearms parts (i.e. magazines) are possessed, transported, etc. They are ONLY authorized to regulate the carry of "loaded firearms".

However, they get away with it because they have unlimited (for practical purposes) funding and the people do not. They own the prosecutors. They basically own the judges. They aren't risking their liberty. YOU ARE.

Until there is a test case, or the legislature grows a pair, they'll continue their BS. It's just like the games they play with colleges and universities.....they all say "we are authorized to make our own rules" and they'll expell you for breaking them. They'll expend all the tax dollars they need to in order to spend you into giving up. Meanwhile you can't go to school because you were expelled. Just ask Jeff Maxwell (ala Western Oregon Univ and the Oregon Univ System).

I have a copy of the legislative counsel (the lawyers for the legislature) opinion on the university issue. They say the school CAN NOT have "no firearms" rules for those with CHL's.......the legislature has stated in written format to the Univ system.....Change your rules. Still they refuse. The administrators need to be FIRED and the legislature needs to rewrite the statutes to include criminal penalties for govenment agents and agencies which violate the legislative intent. Unfortunately, there are enough anti gun legislators that we probably won't see that any time soon.

On the other hand, the tide has turned nationally and the anti gun crowd is losing ground, in leaps and bounds, at every turn. Heller and McDonald at the SCOTUS.....the EPA refusing to ban lead in ammunition.....The National Parks ruling.......failure of Californias recent "open carry ban" bill...... The tide is turning and we are winning. SMILE

 

[Lord Sega]

Letter sent to City Attourney (Portland) Linda Meng

I e-mailed the City Attorney of Portland the following:

To City Attorney Linda Meng,

Ma'am, during my research into state, county, and city laws pertaining to open carry (OC) and concealed carry (CC) of firearms, I have come across an apparent error in the City of Portland's statutes.

I am not a lawyer, but does not the State Preemption ORS 166.170 (see highlight below) make the unloaded clip/magazine city ordinances null & void? If not, how is 14A.60.010 B justified against ORS 166.170?

Cities (and counties) are expressly authorized by state statute to pass ordinances of "loaded firearms in public places", not clips or ammo. By my reading of this, 14A.60.010 part B needs to be rescinded.

Of course, with a Concealed Handgun License (CHL) a person is exempt, but for those who don't have a CHL, or can't get one yet (18-20 year olds) their only choice is open carry.

I bring this to your attention so that it may be corrected before someone is arrested and costly litigation for both the person and the city forces this correction anyway.
Thanks for your time on this.

Doug xxxxxx
xxxxxxxx@charter.net

I included the Oregon 166.170 & Portland 14A.60.010 same as in my initial post.
Now we wait and see what kind of response we'll get. Hopefully a positive one.

 

[We-the-People]

Don't hold your breath....... and be sure to post any reply that you might get.

That was a very tactfully (as in good tactics) written message by the way.

I may surprise you to know that Portland Community College SAYS that they comply with state law and that CHL holders are able to carry on campus (which would include open carry per the law). I wonder how the REALITY stacks up against what they SAY.

 

[Robin47]

Snip



There is a definition for "loaded" in a later section of the ORS, though the question would still remain as to whether the definition is also valid for ORS 166.173:

POSSESSION OF WEAPON OR DESTRUCTIVE DEVICE IN PUBLIC BUILDING OR COURT FACILITY

166.360 Definitions for ORS 166.360 to 166.380. As used in ORS 166.360 to 166.380, unless the context requires otherwise:
(1) “Capitol building” means the Capitol, the State Office Building, the State Library Building, the Labor and Industries Building, the State Transportation Building, the Agriculture Building or the Public Service Building and includes any new buildings which may be constructed on the same grounds as an addition to the group of buildings listed in this subsection.
(2) “Court facility” means a courthouse or that portion of any other building occupied by a circuit court, the Court of Appeals, the Supreme Court or the Oregon Tax Court or occupied by personnel related to the operations of those courts, or in which activities related to the operations of those courts take place.
(3) “Loaded firearm” means:
(a) A breech-loading firearm in which there is an unexpended cartridge or shell in or attached to the firearm including but not limited to, in a chamber, magazine or clip which is attached to the firearm.

Hi All !
Thats the one we use in California (( Attached to the firearm)) meaning we can carry an unloaded auto on our strong side and a fully loaded magazine on our weak side.
We also carry an empty mag in the mag well, so who really knows if your loaded or not, unless a LEO checks
for it. Cal- PC 12031 (e).
I hate to say it but looks like Oregon is trying to follow California, God forbid !

Robin47

 

[Mike]

concealed permit holder are preempted from such local laws - offending localities should be pressured to correct ordinances - publicity would advance open carry in Oregon.

 

[Ironbar]

Gentlemen,

City, county, and local ordinances regulating firearms are directed at those WITHOUT a valid, Oregon Concealed Handgun License. WITH a valid CHL, state law preempts city, county, and local ordinances, and therefore do not apply.

I would urge anyone with questions about Oregon's gun laws to buy Understanding Oregon's GUn Laws by Kevin Starrett, and read it thoroughly. Make sure to get the 2008 edition as it is the most recent.

 

[DenWin]

AlCon:

I just noticed this one, I'm pretty sure it wasn't there a year ago ???

166.370 Possession of firearm or dangerous weapon in public building or court facility; exceptions; discharging firearm at school.
... (g) Possession of a firearm on school property if the firearm:
(A) Is possessed by a person who is not otherwise prohibited from possessing the firearm; and
(B) Is unloaded and locked in a motor vehicle.

I don't ever remember that being in there. When was that put in? I remember looking at it closely since I was going with a friend to pick up his kid. It isn't like I even exited the vehicle, but still, when was that put in there? It seems to me that these days schools and universities are the place to BE legally armed since that where the nutjobs (I know, not PC) go to get their attention. I know I didn't vote on that one.

 

[aadvark]

The provisions under ORS 166.370(g)(A) AND ORS 166.370(g)(B) have been there, and are there due to Federal Law 18 U.S.C. 922(q)(2)(B)(iii).

UnLoaded Carry of a Firearm, and Loaded Clips/Magazines are Lawful, and Preempted, so as long as the Loaded Clips/Magazines are not inserted into the Firearm, when in a City or County that has elected the Prohibitions of ORS 166.173(1), less the exceptions contained thereafter ORS 166.173(2) are followed.

 

[Lord Sega]

This thread is straying off the topic

I was specifically looking at cities requiring the clip/magazine to be empty when a person is OC without a CHL. Yes, with a CHL city ordinances do not apply, except to allow LEOs to terry stop you for CHL/unloaded check.

I used Portland as an example, but this applies to any city.

In Portland's 14A.60.010 part A is allowed by ORS 166.173 (unloaded OC w/o CHL).

It is Part B (see below) that I believe is an illegal ordinance as per ORS 166.170 (state preemption) (1) Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition, is vested solely in the Legislative Assembly.

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

ORS 166.173 allows cities to have unloaded firearms, NOT unloaded clips/magazines (IMHO).

And no, it's been a month and I have not received any response from the Portland City Attorney Linda Meng. I may re-send the e-mail, but I'm betting until someone unloaded OCs with a loaded clip/magazine in Portland and is able to challenge this in court, it will sit on the books.

PORTLAND 14A.60.010 Possession of a Loaded Firearm in a Public Place.
A. 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.
B. It is unlawful for any person to knowingly possess or carry a firearm and that firearm’s clip or magazine, 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 clip or magazine.
C. The following are exceptions and constitute affirmative defenses to a violation of this Section:
...
3. A person licensed to carry a concealed handgun.

 

[We-the-People]

Nothwithstanding the premption of the Portland ordinance by state law (ORS 166.173). I didn't recklessly fail to empty the clip... to fail to do something would require an intial attempt to do so. Never having attempted to remove the ammunition from the magazine, because state law doesn't require me to, I couldn't possibly have failed to remove it therefore, the "recklessly part doesn't even come into play.

SMILE

 

[DenWin]

Other than what We-The-People had to say above SMILE reading it does make me think that the city ordinance is flawed in regards to state law. I forget where I saw it, and I can't find it at the moment, but I remember it saying that you couldn't have a round in the chamber, a round in the cylinder for revolvers, or any rounds in a magazine ATTACHED TO THE WEAPON. I think that's the key part there, that they are again trying to by pass the state law by making you empty the magazine when it isn't attached to the weapon. If someone can find the actual statute, I'm sure it's pretty close to that.

 

[JohnLloydScharf]

Salem Oregon Firearms Possession

I never noticed that before. I think you may have a valid point. It has never been challenged to to the best of my knowledge. There must be someone we could contact in Salem to see if the "banned cities" are over stepping their bounds.

You cannot carry a loaded gun without a concealed carry permit. You must unload the weapon. No mention of unloading a detached magazine is mentioned.
95.095. Loaded Firearms. (a) It shall be unlawful for any person to possess a loaded firearm, whether the shell or cartridge is a blank or is live ammunition, while in a public place as defined in ORS 161.015.
(b) Nothing in subsection (a) shall apply to:
(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 under ORS 166.370.
(5) A government employee or contractor of the City of Salem engaged in flight safety hazard abatement to comply with Chapter 14 of the Code of Federal Regulations, Part 139.337 at McNary Field. (Ord No. 29-96; Ord No. 54-05)

A PUBLIC PLACE IS:
161.010(10) “Public place” means a place to which the general public has access and includes, but is not limited to, hallways, lobbies and other parts of apartment houses and hotels not constituting rooms or apartments designed for actual residence, and highways, streets, schools, places of amusement, parks, playgrounds and premises used in connection with public passenger transportation.

 

[Robin47]

Snip



There is a definition for "loaded" in a later section of the ORS, though the question would still remain as to whether the definition is also valid for ORS 166.173:

POSSESSION OF WEAPON OR DESTRUCTIVE DEVICE IN PUBLIC BUILDING OR COURT FACILITY

166.360 Definitions for ORS 166.360 to 166.380. As used in ORS 166.360 to 166.380, unless the context requires otherwise:
(1) “Capitol building” means the Capitol, the State Office Building, the State Library Building, the Labor and Industries Building, the State Transportation Building, the Agriculture Building or the Public Service Building and includes any new buildings which may be constructed on the same grounds as an addition to the group of buildings listed in this subsection.
(2) “Court facility” means a courthouse or that portion of any other building occupied by a circuit court, the Court of Appeals, the Supreme Court or the Oregon Tax Court or occupied by personnel related to the operations of those courts, or in which activities related to the operations of those courts take place.
(3) “Loaded firearm” means:
(a) A breech-loading firearm in which there is an unexpended cartridge or shell in or attached to the firearm including but not limited to, in a chamber, magazine or clip which is attached to the firearm.

This is the one we use in Kalifornia, " Attached to the firearm", we carry a full magazine on one side and an unloaded gun with an empty mag in the well.
UOC in Kali.
People v. Clark.

Robin47

 

[We-the-People]

This is the OREGON forum and the question is about OREGON law. Let's not interject other states methods and legalities.

 

[since9]

This is the OREGON forum and the question is about OREGON law. Let's not interject other states methods and legalities.

Yes. Particularly when, like California's laws, they're so "progressive" entropy exceeds the speed of light thereby rendering them backwards and ineffective.

 

[TheOneCalledDoc]

Again, my questions have been answered. I thought I had been told that you were not allowed to carry a loaded magazine AT ALL when it comes to OC. Probably heard it form some misinformed citizen or gun fearing fanatic but I made the mistake of not looking into it myself. Thanks for clearing this up guys! Does anyone know if Portland corrected their crap?

 

[VW_Factor]

Again, my questions have been answered. I thought I had been told that you were not allowed to carry a loaded magazine AT ALL when it comes to OC. Probably heard it form some misinformed citizen or gun fearing fanatic but I made the mistake of not looking into it myself. Thanks for clearing this up guys! Does anyone know if Portland corrected their crap?

This thread while old hardly clears anything up.

No PDX has not cleared these (state) unconstitutional ordinances from their books. I am not aware of anyone who has challenged them in court about it either, as not many people wish to be a test case.

On the other side of the coin however, having a CHL, will exempt you from city "regulations" in their entirety.

AFAIK, someone will be unable to contest any of these ordinances which are unlawful according to our State's Constitution unless you have actually been charged with the crime to begin with.

Needless to say, if you had enough money and time, I am positive the right lawyer could have these stricken from the books. PDX, and I believe Oregon City are the only cities I know of that have the "null and void" provisions regarding loaded magazines, etc.

Edit : Also to be clear, the law in Oregon expressly prohibits cities, localities, and the like from regulating ANYTHING related to firearms other than simple loaded carry (which is defined in our laws as well). Noting places like Salem, in which carrying CA style unloaded, but with loaded magazines is perfectly lawful.