A special jury instruction for firearm possession

This wikilog article is a draft, it was not published yet.

by: Ryan • August 16, 2013 • 9 comments

I'm writing this somewhat prematurely, but I wanted to throw it out there for everyone's consideration. This strategy may not work, it may, but it would be fun. Lots of fun, I think.

In State v. Christian, the Oregon Supreme Court rejected both an overbreadth challenge to a Portland Ordinance involving the possession of a firearm and a facial challenge, concluding that overbreadth challenges didn't apply to Article I, section 27, rights, and rejecting a facial challenge on its merits. The court noted in a footnote:

We only briefly refer to the underlying facts, because defendant has not asserted an "as applied" challenge to the ordinance at issue in this appeal. . . . An "as applied" constitutional challenge asserts that a law has been applied in a manner that violates the rights of the person making the challenge even when a law is constitutional on its face. Here, defendant did not assert an "as applied" challenge to the ordinance at any point in the proceedings before the Court of Appeals, and that court concluded that defendant did not raise such a challenge. Christian, 249 Or App at 3(concluding that defendant challenged the ordinance facially).

I have previously discussed the issue of an as-applied challenge to felon in possession here.

It is currently unclear in Oregon how an as-applied challenge should be made. The Court of Appeals has rejected using a motion in arrest of judgment. A motion for judgment of acquittal would be interesting, but presumably there would be relevant facts that would be admissible for a challenge (defendant's history of law-abideness, for example) that wouldn't be relevant to the case-in-chief.

Here is one suggestion. A special jury instruction. Take unlawful possession for a firearm. Ask for an instruction that says, "It is a defense to felon in possession of a firearm that the possession of the firearm, and the manner in which it was carried, including its concealment, were reasonable in facilitating the defendant's self-protection [or protection of himself and family, perhaps.]"

The authority? No statutory authority. Rather, Article I, section 27, provides all the authority you need.

I would work on the instruction. Take language from Christian in fashioning two or three special instructions. But I'd definitely ask for it.