State v. Perry

• Citation: 336 Or. 49,77 P.3d 313
• Parties: STATE of Oregon, Respondent on Review, v. Morgan Joel PERRY, Petitioner on Review.
• Decision Date: 09 October 2003
• Court: Supreme Court of Oregon

77 P.3d 313

336 Or. 49

STATE of Oregon, Respondent on Review, v. Morgan Joel PERRY, Petitioner on Review.

(CC 98-01-40848; CA A102784; SC S48330).

Supreme Court of Oregon.

Argued and Submitted May 7, 2003.

Decided October 9, 2003.

Leland R. Berger, Portland, argued the cause and filed the brief for petitioner on review.

Erika L. Hadlock, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Daniel M. Zavadil, Fairfax, Virginia, filed the brief for amicus curiae National Rifle Association of America Civil Rights Defense Fund.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, and BALMER, Justices.¹

BALMER, J.

Defendant was charged with unlawful possession of a firearm, ORS 166.250, for carrying a concealed weapon without a license while working as an employee at a convenience store. As a defense to that charge, defendant argued that his actions fell within the statutory "place of business" exception to the general requirement that persons carrying concealed weapons must have a license. The trial court rejected that argument, concluding that the exception did not apply to defendant because he was not the owner of the convenience store. The Court of Appeals affirmed. State v. Perry, 165 Or.App. 342, 996 P.2d 995 (2000). We allowed defendant's petition for review and now affirm the decision of the Court of Appeals.²

The facts pertinent to the legal issue on review are not in dispute. Defendant was employed at Elias Grocery, a convenience store in Portland. Karamanos, the owner of the store, worked part-time and entrusted his employees with full authority to operate the business when he was away from the store. On January 11, 1998, defendant was working alone at the store. Responding to a report of a firearm, police entered the store and asked defendant if he was carrying a gun. Police secured a handgun from defendant without incident. Defendant admitted that he did not have a license to carry the gun and was charged with violating ORS 166.250.³ As noted, the trial court rejected defendant's argument that ORS 166.250(2)(b), which provides that a person may possess a handgun within that "person's * * * place of business" without a license, applied to him because he was at his "place of business" when working alone at the store. Thereafter, defendant was convicted following a trial to the court, and the Court of Appeals affirmed.

On review, defendant and amicus curiae National Rifle Association of America Civil Rights Defense Fund argue that the "place of business" exception to the licensing requirement applies to defendant's possession of a firearm at the convenience store where he was employed. He also argues that his conviction violates Article I, sections 20 and 27, of the Oregon Constitution and the Second and Fourteenth Amendments to the United States Constitution. We first consider defendant's statutory argument. State v. Stevens, 319 Or. 573, 579, 879 P.2d 162 (1994) (court considers statutory arguments before constitutional arguments).

Defendant argues that the "place of business" exception applies to him because a "person's * * * place of business" is the place where that individual is employed. According to defendant, the wording of the statute is unambiguous, and nothing in that wording expressly or impliedly requires an ownership interest in the business. If the wording is ambiguous, defendant continues, then the court should resolve that ambiguity by applying rules of statutory construction and by considering how the legislature at the time would have resolved the ambiguity. Defendant asserts that examining the statute in that manner will lead to the conclusion that the phrase "person's * * * place of business" as used in ORS 166.250(2)(b) includes the place where the person is employed.

The question presented in this case, whether the exception in ORS 166.250(2)(b) for persons in their "place of business" applies to nonowner employees, requires us to construe that statute. In doing so, we seek to discern the intent of the legislature that passed that statute. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). The legislature enacted the original version of the statute in 1925, Or Laws 1925, ch. 260, § 5, and this court previously has not construed the specific provision in question, ORS 166.250(2)(b).

In interpreting the words of a statute enacted many years ago, we may seek guidance from dictionaries that were in use at the time. See Vannatta v. Keisling, 324 Or. 514, 530, 931 P.2d 770 (1997)

(using "dictionary relevant to that time" in interpreting constitutional provision); see also Tipperman v. Tsiatsos, 327 Or. 539, 964 P.2d 1015 (1998) (using contemporaneous dictionary to interpret words in 1909 deed). If the words in a statute have a well-defined legal meaning, as is the case here with respect to the phrase at issue, then we will give those words that meaning in construing the statute. Gaston v. Parsons, 318 Or. 247, 253, 864 P.2d 1319 (1994).

Legal dictionaries that were used around the time that ORS 166.250(2)(b) was enacted indicate that the phrase "place of business" was not synonymous with "place of employment." Rather, the phrase referred to a location where a person conducted that person's own, independent business, rather than to a location where a person was an employee engaged in the business of another person. Benjamin Pope's 1920 collection of definitions used by courts defined "place of business" as:

"A place actually occupied, either continually or at regular periods, by a person or his clerks, or those in his employment."

Benjamin W. Pope, 2 Legal Definitions: A Collection of Words and Phrases as Applied and Defined by the Courts, Lexicographers and Authors of Books on Legal Subjects 1181 (1920). Similarly, the 1930 edition of Ballentine's Law Dictionary defined "place of business" as

"A place actually occupied, either continually or at regular periods, by a person or his clerks, in the pursuit of a lawful employment which occupies his time, attention, and labor."

James A. Ballentine, Law Dictionary with Pronunciations 970 (1930). Those definitions distinguish between the "person" who pursues his occupation at "his" place of business and "his clerks" or employees who work at the same location to further the "person's" business. Moreover, the word "clerk" was used, at the time, synonymously with the word "employee"⁴ and referred to a person who was not "carrying on a business."⁵ To the same effect, Bouvier's Law Dictionary defined "place of business" as "the place where a man usually transacts his affairs or business." Francis Rawle, Bouvier's Law Dictionary 2596 (8th ed 1914) (emphasis added).⁶

Thus, in 1925, a "person's * * * place of business" was understood to mean the place where a person conducted his or her own business, and it was not the "place of business" of a clerk or employee who worked at that location on behalf of another. The wording of ORS 166.250(2)(b), therefore, suggests that the legislature intended the exception to the prohibition against carrying an unlicensed concealed weapon "within the person's * * * place of business" to apply to only the owner of the "place of business."

The historical background of ORS 166.250 and related statutes regulating the carrying of concealed weapons provide further context that is useful in determining legislative intent regarding the scope of the "place of business" exception. See Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto, 322 Or. 406, 908 P.2d 300 (1995)

(relying on historical context of statute to determine legislative intent). Two aspects of the statutory scheme support the conclusion that the "place of business" exception was intended to apply to one who owns a business and not to an employee of a business. First, the sequence of legislation that led to the 1925 enactment of what is now ORS 166.250(2)(b) suggests that the exception to the comprehensive prohibition of concealed weapons was intended to be a narrow one. In 1885, the legislature enacted a statute making it unlawful for any person to carry a concealed weapon. Or. Laws, p. 33, § 1 (1885). That law provided a limited exception for law enforcement officials only⁷ and included not only firearms, but also "any instrument by the use of which injury could be inflicted upon the person or property of any other person." Id. In 1917, the legislature passed a law similar to the 1885 law, but did not repeal the 1885 law.⁸ Or. Laws 1917, ch. 377, § 1. The 1917 law provided, in part:

"No person shall carry in any city, town or municipal corporation of this State any pistol, revolver or other firearm concealed upon his or her person, or of a size which may be concealed upon his or her person, without a license or permit therefor * * *."

The 1917 law made an exception, similar to that in the 1885 law, for "sheriffs and their deputies, constables, marshals, police officers, [and] any other duly appointed police officers * * *." Id. The 1917 statute was narrower in some respects than the 1885 law in that it applied to only firearms and was limited to cities, towns, and municipal corporations. However, it was broader in other respects, because it included not only concealed firearms, but also firearms capable of being concealed. That 1917 statute also allowed a person to carry such a weapon if the person obtained a permit. In 1925, the statute now codified as ORS 166.250 superseded the 1917 law.⁹

That history demonstrates the legislature's ongoing concern with concealed weapons up to 1925. First, in 1885, the legislature imposed an outright ban on the carrying of concealed weapons by persons other than law enforcement officers. By later enactment, the legislature allowed for the carrying of concealed weapons on receiving a license. The 1925 statute created an exception...