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A Guide To As-Applied Challenges to Felon in Possession

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by: Ryan • March 4, 2011 • no comments

There is relatively little Oregon case law that deals with as-applied challenges. Rodriguez/Buck are notable exceptions. More often, the appellate courts invite as-applied challenges or note the failure of the defendant to make such a challenge.

Generally, when the defendant challenges a statute as "vague as-applied," the defendant's conduct must be in evidence. See State v. Butterfield, 128 Or App 1, 7, 874 P2d 1339 (1994) (asserting that, "unless the exercise of First Amendment liberties is impaired, vagueness challenges are reviewed solely to determine whether the application of the contested statute to the defendant's conduct violates the 'void for vagueness' doctrine"); see also State v. Albee, 118 Or App 212, 216, 847 P2d 858 (1993) (asserting that, where First Amendment rights are not affected, a defendant must show that the statute is unconstitutional as applied to him).

When it comes to felon in possession of a firearm, the Oregon Supreme Court decided the statute wasn't facially unconstitutional and noted the lack of an as-applied challenge:

"The state correctly notes that defendants did not bring as-applied challenges to ORS 166.270(1) in these cases - that is, they did not argue that, in light of the individual circumstances of their respective crimes and backgrounds, the legislature could not constitutionally prohibit them from bearing arms in their own defense." State v. Hirsch, 338 Ore. 622, 627 (2005)

Just recently, a federal appellate court did a thoughtful and careful analysis regarding what it would take to win an as-applied challenge to a felon in possession of a firearm statute. It is an excellent guide to both the lawyer and the layperson regarding what it would take to prevail on such a challenge.

It is not an easy standard to meet, but neither is it impossible.