Willis v. Winters

Citation234 P.3d 141,235 Or.App. 615
Decision Date16 June 2010
Docket Number072755Z7,A139875.
PartiesCynthia Townsley WILLIS, Petitioner-Respondent,v.Michael WINTERS, in his official capacity as Sheriff of Jackson County, Respondent-Appellant.
CourtCourt of Appeals of Oregon

Benjamin M. Bloom and Elmer M. Dickens, Jr., argued the cause for appellant. With Benjamin M. Bloom on the briefs was Hornecker, Cowling, Hassen & Heysell, L.L.P.

John C. Lucy, IV, and Leland R. Berger, Portland, argued the cause and filed the brief for respondent.

Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge.*

WOLLHEIM, P.J.

Respondent, the Jackson County Sheriff, appeals a judgment of the circuit court that ordered him to renew a concealed handgun license issued to petitioner, a medical marijuana user. The sheriff concedes that petitioner met the requirements for issuance of a concealed handgun license set forth in ORS 166.291. He nevertheless asserts that Oregon's concealed handgun licensing statutes are preempted by federal law in this instance, because “an unlawful user * * * of any controlled substance” cannot lawfully possess a firearm under 18 U.S.C. section 922(g) of the federal Gun Control Act. 1 The circuit court rejected the sheriff's preemption argument and ordered him to issue a renewal of petitioner's concealed handgun license. We agree with the circuit court's conclusion that federal law does not preempt this state's concealed handgun licensing statutes, and we therefore affirm.

The relevant facts are few and undisputed. In May 2007, petitioner applied to renew her expired concealed handgun license. The criteria for renewal of a concealed handgun license are, with the exception of submitting fingerprints and character references, the same as those for issuance of the license in the first instance under ORS 166.291. ORS 166.295(1)(a) (“A concealed handgun license is renewable by repeating the procedures set out in ORS 166.291 and 166.292, except for the requirement to submit fingerprints and provide character references.”). ORS 166.291, in turn, provides that the sheriff of a county, “upon a person's application for an Oregon concealed handgun license, [and] upon receipt of the appropriate fees and after compliance with the procedures set out in this section shall issue the person a concealed handgun license if the person meets certain enumerated criteria. 2 (Emphasis added.)

Petitioner satisfied each of the enumerated criteria in ORS 166.291. Nonetheless, the sheriff, acting through one of his sergeants, denied the application. The basis for denying the application was petitioner's response to a series of questions, which the sheriff had included in the application on his own initiative, inquiring about the use of controlled substances.3 Petitioner reported that she used marijuana on a regular basis, as authorized by her doctor. During an evidentiary hearing, petitioner testified that she does, in fact, use marijuana, pursuant to a card issued in accordance with Oregon's Medical Marijuana Act, ORS 475.300 to 475.346.

After the sheriff denied her application for renewal, petitioner filed a petition for judicial review of that decision. In petitioner's view, the sheriff was required to renew-in the words of ORS 166.291, “shall issue”-her concealed handgun license because she satisfied each of the listed criteria.4 The sheriff, in response, did not dispute petitioner's reading of Oregon's concealed handgun licensing statutes, in particular, ORS 166.291. Instead, the sheriff argued that his statutory obligation to issue the license was preempted by federal law-namely, 18 U.S.C. section 922, of the federal Gun Control Act. Under that law,

[i]t shall be unlawful for any person * * * who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) * * * to ship or transport in interstate or foreign commerce or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
18 U.S.C. § 922(g) (emphasis added). According to the sheriff, issuing a concealed handgun license to a person who admittedly uses marijuana, a Schedule I controlled substance under federal law, 21 U.S.C. section 801, would frustrate the purpose of the federal Gun Control Act.

The circuit court rejected the sheriff's preemption argument. The court reasoned that the concealed handgun licensing statutes “provide a defense to a state prosecution for carrying a concealed weapon. [They] do not purport to overrule, or in any other way address, who may lawfully possess a weapon under federal law.” (Emphasis in original.) “Thus,” the court ruled, the state and federal statutes are not in clear and direct conflict, and preemption therefore does not apply.” The court then entered a judgment ordering the sheriff to reinstate petitioner's concealed handgun license.

The sheriff now appeals that judgment, arguing once again that federal law preempts Oregon's concealed handgun licensing statutes under these circumstances. The sheriff advances two arguments in that regard. First, he contends that Oregon's concealed handgun licensing statutes create an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting legislation regarding controlled substances and firearms. Second, he argues that federal law prohibits him from making any misleading statement likely to deceive a firearms dealer regarding petitioner's right to possess a handgun see 18 U.S.C. § 922(a)(6), and that by issuing her a concealed handgun license, he might violate that law by misleading a dealer to believe that petitioner can legally possess a handgun.

We begin with the sheriff's primary argument-that Oregon's concealed handgun licensing statutes are preempted in this case by section 922(g) of the federal Gun Control Act. That provision of federal law, as quoted above, prohibits “an unlawful user * * * of any controlled substance” from “possess [ing] in or affecting commerce * * * any firearm or ammunition[.] Oregon's concealed handgun licensing statutes, meanwhile, require the sheriff to issue a concealed handgun license if certain criteria are met, without regard to whether the person is “an unlawful user * * * of any controlled substance” within the meaning of section 922(g) of the federal Gun Control Act.

The relationship between the federal Gun Control Act and state law is expressly addressed in section 927 of the federal act:

“No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”

So, by the terms of the federal Gun Control Act, states remain free to pass laws on the “same subject matter” as the federal act unless there is a “direct and positive conflict” between the state and federal laws “so that the two cannot be reconciled or consistently stand together.”

The Oregon Supreme Court recently analyzed federal preemption under a similar preemption provision in Emerald Steel Fabricators, Inc. v. BOLI, 348 Or. 159, 230 P.3d 518 (2010) ( Emerald Steel ), thereby charting the course for our analysis. In Emerald Steel, the court explained that, when a federal law contains a preemption provision like the one at issue here, 5 the question is one of “implied preemption.” 348 Or. at 175, 230 P.3d 518 (citing Wyeth v. Levine, --- U.S. ----, 129 S.Ct. 1187, 1196-1200, 173 L.Ed.2d 51 (2009)). Under the implied preemption test, the court asks whether there is an “actual conflict” between state and federal law, which can occur in either of two circumstances: One, when it is physically impossible to comply with both state and federal law, or, two, when state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ 348 Or. at 175, 230 P.3d 518 (quoting Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995) (internal quotation marks omitted)).

Here, the sheriff makes no argument that it is “physically impossible” to comply with both ORS 166.291 and section 922(g) of the federal act, and for good reason: It is not, in fact, physically impossible to comply with the Oregon law and the federal law. Not only do the statutes address conduct by two different persons-issuance of a permit by the sheriff under state law, versus possession of a firearm by the controlled substance user under the federal law-but a controlled substance user, even if issued a concealed handgun license, might never actually obtain a firearm. Cf. Emerald Steel, 348 Or. at 176, 230 P.3d 518 (explaining that it is not physically impossible to comply with inconsistent state and federal laws regarding marijuana use, because a person can comply with both by refraining from any use of marijuana; and explaining that implied preemption cases have typically turned on the second prong of the analysis, as the “physical impossibility” prong has grown “vanishingly narrow”). Rather, the sheriff's argument-and the real debate in this case-is whether Oregon's concealed handgun licensing statutes stand as an obstacle to the accomplishment and execution of the federal Gun Control Act.

In Emerald Steel, a case involving the intersection between the federal Controlled Substances Act and Oregon's Medical Marijuana Act, the Supreme Court explored in detail that second prong of the implied preemption analysis. After canvassing the pertinent decisions of the United States Supreme Court-particularly Barnett Bank v. Nelson, 517 U.S. 25, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996), and ...

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  • Pack v. Superior Court of L. A. Cnty., B228781.
    • United States
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    ...should focus on the purposes and effects of the provisions of the MMPA, not merely the language used. (See Willis v. Winters (2010) 235 Or.App. 615, 234 P.3d 141, 148 [Oregon's concealed weapon licensing statute is, in effect, merely an exemption from criminal liability], aff'd (2011) 350 O......
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