Saturday, January 13, 2007

Oregon State Senate Bill 283: Get burgled, go to jail?

The Oregon State Senate, newly under our control, has introduced Senate Bill 283 which:

"Creates crime of unlawful storage of firearm.
Punishes by maximum of one year's imprisonment, $6,250 fine, or both.
Punishes second and subsequent convictions by maximum of five years' imprisonment, $125,000 fine, or both."

This law is not aimed at punishing criminals who sell or give guns to minors. Good laws banning that are already on the books. Instead, this law makes a criminal out of anyone who is robbed if the burglars are under 16 (or 18, depending on which section of the current posting you read.)

Here is the complete first section of the bill, emphasis added:

SECTION 1. { + (1) A person commits the crime of unlawful
storage of a firearm if:
(a) The person, with criminal negligence, stores or leaves a
firearm in a location where the person knows, or reasonably
should know,
that a minor who is younger than 16 years of age is
likely to gain access to the firearm;
(b) A minor who is younger than 16 years of age gains access to
the firearm;
and
(c) The minor:
(A) Possesses the firearm in a public place;
(B) Exhibits the firearm in a careless, angry or threatening
manner;
or
(C) Injures or kills a person by means of the firearm.
(2)(a) Unlawful storage of a firearm is a Class A misdemeanor.
(b) Notwithstanding paragraph (a) of this subsection, unlawful
storage of a firearm is a Class C felony if the defendant has at
least one prior conviction under this section.
(3) Subsection (1) of this section, does not apply if:
(a) The minor obtains and possesses the firearm while under the
direct supervision of the minor's parent or guardian;
(b) The minor obtains possession of the firearm:
(A) In a lawful act of self-defense or defense of another; or

(B) Through the illegal act of any person other than the person
referred to in subsection (1)(a) of this section;
(c) The firearm is equipped with a trigger lock or other safe
storage device;
(d) The firearm is stored in a securely locked container or in
a location that a reasonable person would believe to be secure;
(e) The firearm is rendered inoperable by the removal of an
essential component of the firing mechanism;
or
(f) The person is a peace officer or member of the military
forces of this state or the United States and the minor obtained
the firearm during, or incidental to, the performance of the
person's duties.
(4) As used in this section:
(a) 'Firearm' has the meaning given that term in ORS 166.210.
(b) 'Public place' has the meaning given that term in ORS
161.015. + }

So, the law punishes a gun owner for being robbed if the thief is a minor who exhibits the gun in public, UNLESS the thief uses the firearm in legitimate self-defense, which the bill's authors seem to recognize is a possibility if the "thief" is someone who lives in your home and who uses a firearm belonging to someone else--like his or her parent--to protect the home.

One might assume that such a law would only be used in extraordinary cases where a child got possession of a parent's firearm and committed a crime with it. Such an incident happened recently in Vancouver, Washington where a suicidal young man took one of his parents' rifles in the middle of the night and drove around until he provoked an encounter with the local police, who the child goaded into shooting him. This law would now make you a criminal if a neighbor kid snuck into your house and took a weapon for the same purpose. I suspect also that this law would not long remain a "passive law" that was only enforced in the wake of a tragedy in order to make an example of someone--it could also be used as a basis of getting warrants or become a way to prove otherwise unjustified warrants were valid merely by demonstrating the presence of unlocked firearms in your home.

Yes, gun owners should lock their guns up and make reasonable efforts to keep firearms out of the reach of children. If you go to work in the morning and leave guns lying around without trigger locks or outside your safe, you're playing the odds in hopes that you don't get burglarized while you're away.

But a law insisting that all firearms not being used must therefore be locked up if there is any chance that minors--including burglars--will find them goes too far. Senate Bill 283 fundamentally misunderstands the benefits that all of us--gun owners and non-gun owners alike--receive from living in an armed society. We are safer in our homes in this country than we would be otherwise because the presence of guns--loaded guns kept under pillows and in nightstand drawers--in so many houses turns the act of burglary while people are home into a suicidal act of Russian roulette for would-be thieves. (The same benefit is derived against potential robbery or assault victims by the presence of many concealed weapon carriers around us--criminals are more cautious when they know their victims and good Samaritans are likely to be armed.)

A bill that makes the presence of loaded, accessible firearms in a home a crime in itself would fundamentally alter the balance of power between criminals and the general public and make us all less secure in our homes.

I urge readers in Oregon to contact their respective representatives in the Oregon Senate and Oregon House, especially Judiciary Committee members and urge they vote against this perhaps well-meaning but ultimately misguided bill that will give criminals license to attack us in our homes at without fear and will make Oregonians, including the children it purports to protect, more at risk.

10 comments:

JJ said...

Oh, no...here we go again.

How come I am thinking this will be a LOOOOOOONG couple of years????

Is this one from Ginny?

Zak J. said...

Regular Blue Oregon commentator and editor, Jeff Alworth posted some good advice on that a site a couple of weeks ago in a piece called Oregon Dems: Go For the Low-Hanging Fruit. I don't take this as a suggestion that Democrats solely go after easy-to-get bills and ignore tough issues facing the state--like funding for education and other public services. But it does rightly admonish Democrats not to take their win in November as license to drag in every pet project or personal obsession into bills before the legislature. If we can follow Jeff's advice, the next couple years for Oregon should be a golden age of repair and progress. I hope we can stay on track, too.

Kevin Starrett said...

When we first read this bill and sent an alert out, we mistakenly believed it would apply if your gun was stolen. However, that is not correct. There is a section that says it DOES NOT APPLY if the gun was obtained "(B) Through the illegal act of any person other than the person
referred to in subsection (1)(a) of this section;"
We have since corrected our original post. But it does make you wonder, when WOULD this bill apply? Any person under 18 who comes into possession of a handgun without his parents approval has obtained the handgun through an "illegal act." Likewise, any person under 16 who is in possession of one of your long guns without your permission has essentially stolen it. There is no way to know how a court would view this, but it's hard to see when this bill would be used. Clearly people can be negligent with almost any item or device, so why single out gun owners for CRIMINAL penalties for what would be considered a civil issue if any other item were misused?

Zak J. said...

Kevin,
I read that line to mean that if an adult steals your gun and gives it to a minor that the original owner was not to be considered guilty of giving the gun to the minor. But if a minor steals the gun directly, the owner would be held responsible.

If you're right, then I have to wonder what the point of this law actually is, since knowingly providing a minor with a firearm is already illegal. Is the point of the law to create a way to prosecute negligent parents or grandparents who don't take proper steps to keep guns secure from their own curious or criminal children? If the point of the bill is indeed to create legal means for going after people who let their own children get access to guns, I wish the bill could be worded to directly address that so we could have a debate on that narrow point.

I personally know people who have been nonchalant about how they store their firearms, so I let them know I wouldn't be bringing any minors to visit them until they did a better job. That has proven a better incentive for them to buy trigger locks any legal threats or broadly worded bills open to a variety of legal interpretations. I would encourage concerned parents to have a talk with grandma and grandpa about "child-proofing" the home before the next visit and to include discussion of firearms storage in definition of "child-proofing."

Kevin Starrett said...

Actually the following is not true "If you're right, then I have to wonder what the point of this law actually is, since knowingly providing a minor with a firearm is already illegal. "

It is not illegal to provide a minor with a firearm. They may not BUY guns, but it is legal to give a gun to a minor.

The bill says:
"(3) Subsection (1) of this section does not apply if:
(a) The minor obtains and possesses the firearm while under the
direct supervision of the minor's parent or guardian;
(b) The minor obtains possession of the firearm:
(A) In a lawful act of self-defense or defense of another; or
(B) Through the illegal act of any person other than the person referred to in subsection (1)(a) of this section;"

The person "referred to in subsection (1)(a) of this section;" is you, the gun owner. It seems to mean that if the minor has obtained your gun through an illegal act, you are not responsible. But what's not clear is what follows. Here's what follows:

" (c) The firearm is equipped with a trigger lock or other safe storage device;
(d) The firearm is stored in a securely locked container or in a location that a reasonable person would believe to be secure;
(e) The firearm is rendered inoperable by the removal of an essential component of the firing mechanism; or
(f) The person is a peace officer or member of the military forces of this state or the United States and the minor obtained the firearm during, or incidental to, the performance of the person's duties."

It seems to me that it could be interpreted that you are only covered in the event of a stolen gun, if you had it somehow locked up. OR, and this is the unclear part, it might mean that you are covered all the time if the gun was stolen. The placement of the section and subsection numbers and the word "or" determine this. At this point, I believe the way the thing is written, if the gun was obtained by an illegal act, you are not liable. But it is pretty vague.

jrmallard06 said...

I really don't see the problem with this bill. I lock my guns up and if the safe is broken into or stolen, according to this bill, I would not be held liable.

I realize some people like to keep a weapon (i.e. a pistol) to protect their home and do not lock it so it can be accessed quickly, but I know I can get into my safe in seconds (I've tested it). So, why not just lock 'em up? Why not adhere to the law and prevent yourself from being held criminally liable?

If you don't have kids then I don't think you need to worry too much. I would think any court would decide that if your home is locked up then so are your firearms inside.

Definestro said...

So if I understand correctly, I'd be the criminal in this hypothetical situation:
I'm a law abiding adult, who owns firearms and ammo. My teenage child, who I trust and love, gets depressed and grabs the keys/opens the lock to my gun cabinet without my permission. Grabs the ammo, loads the weapon, then decides to get goad the police into shooting and killing him.
I become the criminal in that situation? Does my trust of my own family members, when they make stupid choices, make me a criminal? Is this also the way it is if the same child raids my liquor cabinet without my knowledge, drinks and injures someone/themselves?

Zak J. said...

Hey D.
Well, from what Kevin said, it seems if your cabinet were locked you'd be in the clear. But I think the bill is somewhat ambiguous. I think people would agree that parents should keep guns away from kids, but I think we diverge when it comes to what penalty should be in place when they fail to do so and the results are tragic.

Two cases come to mind. A case in Detroit a couple years back when a kindergarten or first grade student living with his dad--and a lot of others--in what was basically a drug house, brought a gun he found at home to school and killed a classmate with it. The gun's owner (who was not the father) was charged with manslaughter or similar.

Across the river in Vancouver, WA about three years ago, a boy about junior high age apparently spent an entire day walking around the house dry-firing a pistol at his siblings. Later in the day he put bullets in it and shot and killed his sister, apparently intentionally. Bizarrely, as I recall, this was ruled an accident. I don't think any charges were filed. A couple weeks later the same boy's brother was caught shooting a pellet gun at a school bus. The children's father was a polic officer, so the exemption in the Oregon bill would seemingly not apply in that case anyway. I may be wrong here, but I don't think any charges at all were filed in this case, which at first glance seems as criminally negligent as the first example back in Detroit.

I actually think there is a good case to be made for legal penalties in some cases. I frankly do not know how that can best be framed. But I still find bill 283 to be too vaguely worded to take at face value without suspicion that ulterior motives--to force everyone to keep their guns under lock and key at all times--are at play. If the bill is supposed to be intended for application in cases like those I listed above, it should be crystal clear about that.

jrmallard06 said...

Wrong Definestro. Completely wrong.

Read the bill -

"this section does not apply if:
(a) The minor obtains and possesses the firearm while under the direct supervision of the
minor¢s parent or guardian;
(b) The minor obtains possession of the firearm:
(A) In a lawful act of self-defense or defense of another; or
(B) Through the illegal act of any person other than the person referred to in subsection
(1)(a) of this section;
(c) The firearm is equipped with a trigger lock or other safe storage device;
(d) The firearm is stored in a securely locked container or in a location that a reasonable
person would believe to be secure;
(e) The firearm is rendered inoperable by the removal of an essential component of the
firing mechanism;"

It also does not apply if you are a peace officer or a member of the military. SO, no, if you lock it up you are safe (no pun intended). If you do not lock it up then you could be held criminally liable. What you do is up to you.

Kevin Starrett said...

jrmallard said "SO, no, if you lock it up you are safe (no pun intended)." That's an interesting point of view.

Because of the confusion in this bill, we've posted an analysis on our web site. You can read it here http://oregonfirearms.org/news/sb283analysis.html