[DV_listserv] UPDATE: Firearms/DV Information: ORS 166.250-255

[Domestic Violence issues]

Greetings,

A few months ago, I sent out information and advice on newly enacted ORS 166.255 which prohibits possession of a firearm by a person who is subject to a qualifying court order and/or is a person convicted of a qualifying misdemeanor crime committed against a family member. That email is below.

As with nearly all new laws, issues and questions have emerged along the way about ORS 166.255. We've tried our best to address and answer those as they arise.

During recent conversations about this law, it occurred to me that I needed to clarify some of the information that had been previously sent out. As you all know, in order for a misdemeanor crime to "qualify" (i.e., result in the prohibition of firearm possession) under ORS 166.255 there are two requirements. The first is an "element" requirement. A misdemeanor crime committed against a family member qualifies if it "has, as an element of the offense, the use or attempted use of physical force or the threatened use of a deadly weapon." The statute does not specifically list which crimes qualify. At the time I sent out the earlier email, we believed that "if charged correctly, crimes which could qualify include but are not limited to: Assault in the Fourth Degree, Attempted Assault in the Fourth Degree, Strangulation, Attempted Strangulation, Menacing, and Harassment"  Due to a complicated analysis (the likes of which I will not bore you), we do not think that is correct advice.

The bottom line (FOR NOW) is this: The FBI designates six crimes which qualify under the federal law on which our statute was based. Those crimes are: Assault IV - ORS 163.160(1); Strangulation  --ORS 163.187; Contributing to the Sexual Delinquency of a Minor-ORS 163.435; Sexual Misconduct  -- ORS 163.445 ; Disorderly Conduct -- ORS 166.025(1)(a) (fighting,/tumultuous, or threatening behavior); Pointing Firearm at Another --ORS 166.190. The US Attorney's Office, however, has said that it will only proceed on TWO of those crimes (Assault and Strangulation, and attempts thereof). Because our law was meant to mirror the federal law, our appellate court would probably look to the federal courts' analysis (despite the fact that we don't use the federal analytical approach) to determine which Oregon crimes qualify. For the time being, that (PROBABLY) leaves us with those crimes the US Attorney's Office is currently prosecuting: Assault (including RECKLESS as a mental state since the Supreme Court decided Voisine Et Al v. United States last year) and Strangulation (and attempts). HOWEVER, it is important to remember that qualifying statutes do NOT need to precisely include the term "use or attempted use of physical force" or "use/threat of a deadly weapon." This leaves us wiggle room in the future to argue that other crimes qualify, especially if the HB 2237 (described below), passes. ALSO: DDAs if you come across a case and wonder whether a particular crime does or could qualify, CALL ME.  Along with Appellate, we can help you figure it out!

Looking Ahead: The Governor has introduced a bill (HB 2237) that would amend ORS 166.255 to expand which relationships would serve to qualify (i.e. prohibit possession of firearm) a court order and/or a misdemeanor crime of DV under the statute. Most importantly, dating relationships where parties did not cohabit with one another would now qualify. The bill also proposes to specifically add the crime of Stalking as a qualifying conviction for firearm prohibition purposes.

Here is the bill: https://olis.leg.state.or.us/liz/2017R1/Downloads/MeasureDocument/HB2237/Introduced

Finally, the other advice in the earlier email (especially around being clear with your charging and sentencing documents) still holds true.

I know this is complicated. I appreciate all your efforts to make it work the way it was intended.

If you have questions, please let me know.

--Erin

From: DV_listserv [mailto:dv_listserv-bounces at listsmart.osl.state.or.us] On Behalf Of Domestic Violence issues
Sent: Tuesday, June 14, 2016 2:18 PM
To: 'dv_listserv at listsmart.osl.state.or.us' (dv_listserv at listsmart.osl.state.or.us<mailto:dv_listserv at listsmart.osl.state.or.us>)
Subject: [DV_listserv] Firearms/DV Information: ORS 166.250-255

Hello,

I've had a couple of questions about how best to charge a misdemeanor crime (of domestic violence) to (try to) ensure that the person, if convicted, will be prohibited from possessing firearms.

I thought I would pass along my best advice (with some helpful input from Lauren Robertson in our Appellate division). I apologize in advance for the length of the email!

As you know SB 525, amending ORS 166.250 (and creating ORS 166.255), became effective January 1, 2016.

ORS 166.250 now prohibits possession of a firearm by a person who is prohibited from doing so under (newly enacted) ORS 166.255. ORS 166.255 states that it is unlawful for a person to knowingly possess a firearm if: A) the  person is subject to a qualifying protective order; OR B) is a person convicted of a qualifying misdemeanor crime committed against a family member.

Per the statute, a protective order qualifies if it meets the following criteria:

(A) Was issued or continued after a hearing for which the person had actual notice and during the course of which the person had an opportunity to be heard;
(B) Restrains the person from stalking, intimidating, molesting or menacing an intimate partner, a child of an intimate partner or a child of the person; and
(C) Includes a finding that the person represents a credible threat to the physical safety of an intimate partner, a child of an intimate partner or a child of a person.

An "intimate partner" means the person's spouse, the person's former spouse, a parent of the person's child or another person who has cohabited or is cohabiting with the person in a relationship akin to a spouse. NOTE: This definition is narrower than ORS 135.230(4), but essentially mirrors current federal law on this issue.

Which Oregon "protective orders" can potentially qualify?

  *   FAPA
  *   EPPDAPA
  *   Stalking
  *   Release Agreement/Criminal No-Contact Order-I have attached a Release Agreement addendum, created by the Oregon Judicial Department (OJD), which includes the required criteria in order for a R/A to qualify as a "protective order" under federal law.  Although not a perfect fit, it could be used for the time being, in order qualify release agreements as "protective orders" under ORS 166.250. I am currently participating on a workgroup which is modifying this and other forms to incorporate ORS 166.250-255 and to clarify any differences between state and federal law. We hope to have these forms available in less than a month. I will send them out on the listserv when they are finalized.

In order for a misdemeanor crime to "qualify" (i.e., result in the prohibition of firearm possession) under ORS 166.255 there are two requirements. First, there is an element requirement. A misdemeanor crime committed against a family member qualifies if it "has, as an element of the offense, the use or attempted use of physical force or the threatened use of a deadly weapon." The statute does not specifically list which crimes qualify. It is possible that, if charged correctly, crimes which could qualify include but are not limited to: Assault in the Fourth Degree, Attempted Assault in the Fourth Degree, Strangulation, Attempted Strangulation, Menacing, and Harassment. Second, there is a relationship requirement. The misdemeanor must have been committed against a family member. Family member  means, "with respect to the victim, the victim's spouse, the victim's former spouse, a person with whom the victim shares a child in common, the victim's parent or guardian, a person cohabiting with or who has cohabited with the victim as a spouse, parent or guardian or a person similarly situated to a spouse, parent or guardian of the victim." Again, please NOTE that the definition of "family member" is narrower than the 'family or household member' definition used to determine whether a crime is 'domestic violence' under ORS 135.230(4). Most notably, "family member" under ORS 166.255 does NOT include the catchall of "adult persons related by blood or marriage."

In terms of making charging and sentencing decisions, you really want to try and "cover all your bases" for all possible future uses. There are many implications when an accusatory instrument charges a crime of "domestic violence." For example, it may affect whether and on what terms the defendant is released for trial (see ORS 135.245(3), 135.250(2)), whether the defendant will be eligible for a diversion program (ORS 137.533), and whether the crime can be civilly compromised (ORS 135.703(d)). When an offense is proved at trial to "constitute domestic violence," such a finding may have significant collateral consequences: a conviction in Oregon for  a "domestic violence" offense may affect a defendant's right to obtain custody of his/her children (ORS 107.137) or remain in this country if he or she is not a citizen (USC Sec. 1227(a)(2)(E)). A  "domestic violence" finding may also make it easier to use that conviction as an impeachable under OEC 609. Practically speaking, it could eliminate the need to call the named victim to testify in future proceedings about the prior convictions. With the passing of SB 525 (codified as ORS 166.250-255), you now want to include language in the charging document that, if convicted, disqualifies that person for possessing firearms. Ideally, these findings should and will also be reflected in the Judgment Order, as well.

Ø  So, for example, if you have an assault between an adult man and woman who are boyfriend/girlfriend (living together and engaging in an intimate relationship), you'd want to charge that  to indicate that it BOTH "constitutes domestic violence" (under ORS 135.230(4)) and qualifies as "family member" under ORS 166.255(3)(c):


  *   "On or about June 14, 2016, the defendant, John Doe, did unlawfully and knowingly*, cause physical injury to Jane Doe."


  *   "The state further alleges that this offense constitutes domestic violence in that the defendant and Jane Doe are persons who do cohabit* or have cohabited with one another."

One of the questions I received is whether Blakely applies in situations where we are pleading facts in order to set up future consequences. The answer is technically no. However, the "DV" section in the Indictment Form Book addresses this particular topic, "[e]ven though ORS 132.586(2) is stated only in permissive language and a finding of "domestic violence" does not authorize an enhanced sentence, it may be better practice to allege specifically that the offense is one "constituting domestic violence" in all cases in which the charged crime meets the definition of "abuse in ORS 135.230(1) and the defendant's relationship with the victim meets the definition of "family or household members" in ORS 135.230(4). Further, it is best practice to allege specifically what sort of relationship existed between the parties which makes it domestic violence." And, now that we have ORS 166.250-255, what sort of relationship makes them "family members. Like so many other criminal convictions that are used as predicates, we must take necessary steps to make sure we create as clear a record as possible by pleading, proving, and inserting the right words into our charging documents and judgments.

The ASTERISK next to "knowingly" is a reminder that choosing a mental state for Assault IV is important if you ALSO want the crime to qualify under federal law. According to our US Attorney's office there are only two crimes that qualify for possible federal prosecution of unlawful possession of firearms (under 18 USC 922 (g)(9)): Assault IV and Strangulation (and attempts thereof). For an Assault IV to qualify, however, it must be charged KNOWINGLY or INTENTIONALLY. That same rule does NOT apply to ORS 166.255, but it's something to keep in mind.

The ASTERISK next to "cohabit" is a reminder that Oregon's definition of cohabiting mirrors federal law given State ex. Rel. Juv. Dept. v. CMC, 243 Or App 335 (2011): cohabiting refers to living in the same residence in a relationship akin to spouses.

I was also asked about "whether or not the new gun law applies with DV Harassment convictions - given that the new statute mirrors the federal standard of "use or attempted use of physical force" and the U.S. Supreme Court decided in U.S. v. Castleman, 134 S Ct 1405 (2014),  that common law battery, or "offensive touching" was sufficient under the federal statute? "

Our US Attorney feels that, despite the Castleman decision, it cannot prosecute an unlawful gun possession charge based on a DV Harassment conviction. However, it is my opinion (as I implied earlier in the email) that if charged correctly, Harassment could qualify under ORS 166.255. Again, however, all of these cases are fact-dependent. Remember the element requirements for a misdemeanor crime to qualify: "it has, as an element of the offense, the use or attempted use of physical force or the threatened use of a deadly weapon." One thing to think about: If you feel your Harassment charge has these elements, why not charge it as an Attempted Assault IV? That way (if you have the relationship qualifiers) you get BOTH the state and federal benefits of dispossession.

I hope I haven't confused things even more. Please let me know if you have any questions!

--Erin

Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Fax: 503.373.1937

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