Willis v. Winters

• Decision Date: 19 May 2011
• Docket Number: C073811CV; CA A139802; SC S058642).,C0073810CV,(CC 07–2755–Z7; CA A139875; SC S058645 (Control); CC C073809CV
• Citation: 65 A.L.R.6th 717,350 Or. 299,253 P.3d 1058
• Parties: Cynthia Townsley WILLIS, Petitioner–Respondent, Respondent on Review,v.Michael WINTERS, in his official capacity as Sheriff of Jackson County, Respondent–Appellant, Petitioner on Review.Paul SANSONE, Plaintiff–Respondent, Respondent on Review,v.Rob Gordon, in his official capacity as the Sheriff of Washington County, Respondent–Appellant, Petitioner on Review.Steven Schwerdt, Plaintiff–Respondent, Respondent on Review,v.Rob Gordon, in his official capacity as the Sheriff of Washington County, Respondent–Appellant, Petitioner on Review.Lee Wallick, Plaintiff–Respondent, Respondent on Review,v.Rob Gordon, in his official capacity as the Sheriff of Washington County, Respondent–Appellant, Petitioner on Review.
• Court: Oregon Supreme Court

350 Or. 299

253 P.3d 1058

65 A.L.R.6th 717

Cynthia Townsley WILLIS, Petitioner–Respondent, Respondent on Review,

v.Michael WINTERS, in his official capacity as Sheriff of Jackson County, Respondent–Appellant, Petitioner on Review.Paul SANSONE, Plaintiff–Respondent, Respondent on Review,

v.Rob Gordon, in his official capacity as the Sheriff of Washington County, Respondent–Appellant, Petitioner on Review.Steven Schwerdt, Plaintiff–Respondent, Respondent on Review,

v.Rob Gordon, in his official capacity as the Sheriff of Washington County, Respondent–Appellant, Petitioner on Review.Lee Wallick, Plaintiff–Respondent, Respondent on Review,

v.Rob Gordon, in his official capacity as the Sheriff of Washington County, Respondent–Appellant, Petitioner on Review.

(CC 07–2755–Z7; CA A139875; SC S058645 (Control); CC C073809CV

C0073810CV

C073811CV; CA A139802; SC S058642).

Supreme Court of Oregon, En Banc.

Argued and Submitted March 3, 2011.Decided May 19, 2011.

On review from the Court of Appeals.^*Elmer M. Dickens, Senior Assistant County Counsel, Washington County Counsel, Office of County Counsel, Hillsboro, argued the cause and filed the briefs for petitioner on review Robert Gordon, Sheriff of Washington County.James R. Kirchoff, Jackson County Counsel, Medford, argued the cause for petitioner on review Michael Winters. With him on the brief was G. Frank Hammond.Leland R. Berger, Portland, argued the cause for respondents on review Cynthia Townsley Willis, Paul Sansone, Steven Schwerdt, and Lee Wallick. With him on the brief was John C. Lucy.Denise G. Fjordbeck, Attorney–in–Charge Civil/Administrative Appeals, Salem, filed a brief on behalf of amicus curiae State of Oregon. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.Margaret H. Leek Leiberan, Jensen & Leiberan, Beaverton, filed a brief on behalf of amicus curiae ACLU Foundation of Oregon, Inc.DE MUNIZ, C.J.

In these consolidated cases, the sheriffs of Jackson and Washington counties withheld concealed handgun licenses from persons who met all of the statutory conditions for issuance of such licenses, but who admitted to regular use of medical marijuana pursuant to registry identification cards issued under the Oregon Medical Marijuana Act, ORS 475.300 to 475.346. When the sheriffs' actions were challenged in court, the sheriffs responded that, to the extent that Oregon's concealed handgun licensing scheme does not concern itself with the applicants' use of medical marijuana, it is preempted by a federal prohibition on the possession of firearms by persons who, under federal law, are “unlawful user[s] * * * of a[ ] controlled substance.” 18 U.S.C. § 922(g)(3). Both trial courts and, later, the Court of Appeals, rejected that preemption argument and held that the concealed handgun licenses were wrongfully withheld. We allowed the sheriffs' petitions for review and now add this court's voice to the lower courts': We hold that the Federal Gun Control Act does not preempt the state's concealed handgun licensing statute and, therefore, the sheriffs must issue (or renew) the requested licenses.

Before turning to the facts of the two cases, we describe some of the relevant statutory background. At the outset, we observe that Oregon's concealed handgun licensing statute does not purport to regulate the possession of firearms.¹ Rather, the statute deals with a particular placement or use of a firearm— the carrying of a firearm concealed on one's person or its concealment, within the possessor's reach, in a vehicle. In Oregon, it is a crime—a misdemeanor—to carry a firearm that is concealed in either of those ways. ORS 166.250(1)(a), (b). However, that criminal prohibition does not apply to certain specified categories of persons, including “a[ny] person who is licensed under ORS 166.291 and ORS 166.292 to carry a concealed handgun.” ORS 166.260(1)(h).

To obtain a concealed handgun license (CHL), a person must meet certain residency, age, and background requirements. ORS 166.291(1) (set out below, 350 Or. at 303–05, 253 P.3d at 1061). None of those requirements turns on the mere use of marijuana or other controlled substances; however, one requirement for obtaining a CHL is that the person “has not been convicted of an offense involving controlled substances.” ORS 166.291(1)(L) (emphasis added).

To obtain a CHL, a person must submit an application, along with a fee, to the sheriff of the county in which the applicant resides. ORS 166.291(1)(a), (5). The form of the application is dictated by statute: It sets out the various statutory requirements for issuance of a CHL and a declaration that the applicant meets those requirements, which the applicant must sign. ORS 166.291(4). Upon a person's submission of an application:

“[t]he sheriff of a county, * * * 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:

“(a)(A) Is a citizen of the United States; or

“(B) Is a legal resident alien who can document continuous residency in the country for at least six months and has declared * * * the intent to acquire citizenship status * * *;

“(b) Is at least 21 years of age;

“(c) Is a resident of the county;

“(d) Has no outstanding warrants for arrest;

“(e) Is not free on any form of pretrial release;

“(f) Demonstrates competence with a handgun [in certain specified ways]:

“ * * * * *

“(g) Has never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony;

“(h) Has not been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor within the four years prior to the application;

“(i) Has not been committed to the Oregon Health Authority under ORS 426.130;

“(j) Has not been found to be mentally ill and is not subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness;

“(k) Has been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, the person was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470;

“(L) Has not been convicted of an offense involving controlled substances or participated in a court-supervised drug diversion program [with certain listed exceptions]:

“ * * * * *

“(m) Is not subject to a citation issued under ORS 163.735 or an order issued under ORS 30.866, 107.700 to 107.735 or 163.738 [ ( i.e., a stalking citation or domestic violence restraining order) ];

“(n) Has not received dishonorable discharge from the Armed Forces of the United States; and

“( o ) Is not required to register as a sex offender in any state.”

ORS 166.291(1) (emphasis added). There is one exception to the requirement that a license be issued to any applicant who meets the standards set out at ORS 166.291(1):

“Notwithstanding ORS 166.291(1), and subject to review as provided in subsection (5) of this section, a sheriff may deny a concealed handgun license if the sheriff has reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to self or others, or to the community at large, as a result of the applicant's mental or psychological state or as demonstrated by the applicant's past pattern of behavior involving unlawful violence or threats of unlawful violence.” ²

ORS 166.293(2).

With that statutory background in mind, we turn to the two cases that are before us. In Willis v. Winters, 235 Or.App. 615, 234 P.3d 141 (2010), an applicant wished to renew an expired CHL and submitted a renewal application to the sheriff of the county where she resided (Jackson County), as required by ORS 166.295(1)(a).³ The application form was substantially in the form required by ORS 166.291(4) (described above, 350 Or. at 302–04, 253 P.3d at 1060–61); however, it contained additional questions about the applicant's use of drugs that the Jackson County Sheriff had added on his own initiative. In her responses to those additional questions, the applicant indicated that she used marijuana regularly and that her use had been authorized by a medical doctor. The sheriff denied the application on the ground that, under federal law, 21 U.S.C. § 841(a)(1), the applicant's use of marijuana was unlawful, and, as an illegal user of marijuana, she was prohibited from possessing firearms under 18 U.S.C. section 922(g) of the Gun Control Act of 1968, Pub L 90–618, 82 Stat 1213 (1968). The sheriff acknowledged that the applicant possessed an Oregon Medical Marijuana card that purported to authorize her use of marijuana, but he concluded that the federal prohibition on possession of firearms by unlawful users of controlled substances preempted Oregon's concealed handgun licensing law. The sheriff argued, in addition, that his issuance of a CHL to the applicant was prohibited under 18 U.S.C. section 922(a)(6),⁴ because it would likely deceive firearms dealers with respect to the lawfulness of selling firearms to the applicant.

The applicant sought judicial review of that denial in the Circuit Court for Jackson County, as provided in ORS 166.293(5). The circuit court rejected the sheriff's preemption arguments and ordered him to renew the applicant's CHL. The Court of Appeals affirmed. Willis, 235 Or.App. at 629, 234 P.3d 141. We describe the Court of Appeals opinion in Willis below.

The facts of Sansone v. Gordon, 235 Or.App. 695, 234 P.3d 150 (2010), are substantially the same, except that that case involved the sheriff of Washington County and three separate applicants who resided in that county. Each of the three applicants sought to obtain or renew a CHL; each filled out an application that contained questions about marijuana use that the sheriff...