State v. Christian

• Decision Date: 21 March 2012
• Docket Number: 080951814,A142137.
• Citation: 274 P.3d 262,249 Or.App. 1
• Parties: STATE of Oregon and City of Portland, Plaintiffs–Respondents, v. Jonathan D. CHRISTIAN, aka Jonathan David Christian, Defendant–Appellant.
• Court: Oregon Court of Appeals

249 Or.App. 1

274 P.3d 262

STATE of Oregon and City of Portland, Plaintiffs–Respondents,

v.Jonathan D. CHRISTIAN, aka Jonathan David Christian, Defendant–Appellant.

080951814

A142137.

Court of Appeals of Oregon, In Banc.

Submitted March 23, 2011.Resubmitted En Banc Dec. 6, 2011.Decided March 21, 2012.

Peter Gartlan, Chief Defender, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, David B. Thompson, Interim Solicitor General, and Erika L. Hadlock, Senior Assistant Attorney General, filed the brief for respondent State of Oregon.

Harry Auerbach, Chief Deputy City Attorney, City Attorney's Office, filed the brief for respondent City of Portland.

Before BREWER, Chief Judge, and HASELTON, ARMSTRONG, WOLLHEIM, SCHUMAN, ORTEGA, SERCOMBE, and NAKAMOTO, Judges, and EDMONDS, Senior Judge.

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 P.3d 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 P.3d 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 P.3d 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 P.3d 62 (2006); see also New York v. Ferber, 458 U.S. 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.060.010(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(O)) and is not controversial for purposes of this challenge. “Knowingly” and “recklessly” are not expressly defined in the code; however, PCC 14A.020.040 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 P.2d 1143 (1993). Of particular relevance to PCC 14A.060.010(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 P.2d 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 Hirsch/Friend, 338 Or. at 632–78, 114 P.3d 1104. We see no benefit in rehearsing that work here beyond restating its relevant conclusions:

“[W]hen the drafters of the Oregon Constitution...