OCDLA Library of Defense - Latest Case Reviews

Blog It usually takes awhile before issues of first impression start winning. This is the exception. by: Ryan Scott • November 15, 2023 • no comments Everyone knows my favorite legal issues involve arguments that aren't the law . . . yet. I have a personal list of arguments that I promoted that initially met with great resistance from the courts, prosecutors and other defense lawyers. Not all defense lawyers, but a lot. The most common argument I hear is that a number of defense lawyers are concerned that if they argue an issue that isn't firmly rooted in case law, they lose credibility with the judge. I disagree, for any number of reasons, but I've heard the argument enough that I know it's a real thing. But one issue I came up with last year won the first time it was argued and it hasn't stopped. Unfortunately, it's something that -- in many cases -- the state can fix, and they've started doing so. But there are exceptions and often those exceptions arise in cases back from the appeal or PCR, and if properly raised, the issue can substantially undermine the state's case. → continue reading... A Ballistics Test is a Search by: Ryan Scott • November 10, 2023 • no comments Assume your client is arrested and his firearm is seized. There wasn't a warrant, just PC to seize the firearm. The police subsequently perform a ballistics test on the firearm and connect the firearm to earlier shootings. In that situation, you absolutely should move to suppress the ballistics test and all evidence that flowed from it. The reasons are as follows: → continue reading... The Portland City Code and Unlawful Possession of a Firearm by: Ryan Scott • November 5, 2023 • no comments Since the Bruen opinion from the United States Supreme Court, there have been 2nd Amendment challenges to felon in possession of a firearm (both facial and as-applied), felon in possession of body armor, unlawful possession of a concealed weapon and many more. Each of these has a chance of being successful and some in fact have been successful in certain federal courts. Nothing of course is guaranteed. However, there is one argument where I believe the odds are overwhelmingly in our favor. And that's a challenge to the Portland City Code's prohibition on carrying a loaded weapon. The key thing to know about the Portland City Code is that it prohibits open carry, as well as concealed carry. Why does that matter? See this quote from Bruen. In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. As we recognized in Heller, “the majority of the 19th-century courts to consider the question held that [these] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” 554 U S, 30 at 626, 128 S Ct 2783, 171 L Ed. 2d 637. Respondents unsurprisingly cite these statutes—and decisions upholding them—as evidence that States were historically free to ban public carry. In fact, however, the history reveals a consensus that States could not ban public carry altogether. Respondents’ cited opinions agreed that concealed carry prohibitions were constitutional only if they did not similarly prohibit open carry. That was true in Alabama. See State v. Reid, 1 Ala. 612, 616, 619-621 (1840). It was also true in Louisiana. See State v. Chandler, 5 La. 489, 490 (1850). Kentucky, meanwhile, went one step further—the State Supreme Court invalidated a concealed-carry prohibition. See Bliss v. Commonwealth, 12 Ky. 9 (1822). The Georgia Supreme Court’s decision in Nunn v. State, 1 Ga. 243 (1846), is particularly instructive. Georgia’s 1837 statute broadly prohibited “wearing” or “carrying” pistols “as arms of offence or defence,” without distinguishing between concealed and open carry. 1837 Ga. Acts 90, §1. To the extent the 1837 Act prohibited “carrying certain weapons secretly,” the court explained, it was “valid.” Nunn, 1 Ga., at 251. But to the extent the Act also prohibited “bearing arms openly,” the court went on, it was “in conflict with the Constitutio[n] and void.” Ibid.; see also Heller, 554 U. S., at 612, 128 S. Ct. 2783, 171 L. Ed. 2d 637. The Georgia Supreme Court’s treatment of the State’s general prohibition on the public carriage of handguns indicates that it was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry. Finally, we agree that Tennessee’s prohibition on carrying “publicly or privately” any “belt or pocket pisto[l],” 1821 Tenn. Acts ch. 13, p. 15, was, on its face, uniquely severe, see Heller, 554 U. S., at 629, 128 S. Ct. 2783, 171 L. Ed. 2d 637. That said, when the Tennessee Supreme Court addressed the constitutionality of a substantively identical successor provision, see 1870 Tenn. Acts ch. 13, §1, p. 28, the court read this language to permit the public carry of larger, military-style pistols because any categorical prohibition on their carry would “violat[e] the constitutional right to keep arms.” Andrews v. State, 50 Tenn. 165, 187 (1871); see also Heller, 554 U. S., at 629, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (discussing Andrews). All told, these antebellum state-court decisions evince a consensus view that States could not altogether prohibit the public carry of “arms” protected by the Second Amendment or state analogues. N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S Ct 2111, 2146-2147, 213 L Ed 2d 387, 35 427-429 (2022) [Emphasis added.] Bruen put the burden on the state to prove the existence of a historical analog to any modern-day firearm prohibition. The good news for the state is that there are plenty of examples of antebellum statutes regarding the open carry of firearms. The bad news for the state is that they were all found unconstitutional. I highly encourage defense lawyers to raise this argument. More than any other firearm prohibition, this one is likely to be found unconstitutional. Next 20 Articles Case Reviews Oregon Court of Appeals, November 23rd, 2023 by: Rankin Johnson DEFENSES - Sufficiency → read the full summaries... Oregon Supreme Court, November 17th, 2023 by: Rankin Johnson JUVENILE LAW - Discovery → read the full summaries... Oregon Court of Appeals, November 8th, 2023 by: Rankin Johnson RECKLESS DRIVING - Sufficiency PROBATION CONDITIONS - Polygraphs as probation condition SEX OFFENDER NOTIFICATION - Offense-free time SEX OFFENDER NOTIFICATION - FAILURE TO PERFORM THE DUTIES OF A DRIVER - Premises open to the public → read the full summaries... Oregon Court of Appeals, October 25th, 2023 by: Rankin Johnson JUVENILE DELINQUENCY - Burden of proof CIVIL COMMITMENT - Firearm limitations SEARCH AND SEIZURE - Conduct constituting a stop → read the full summaries... Oregon Supreme Court, October 19th, 2023 by: Rankin Johnson DEFENDANT'S STATEMENTS - Compelling circumstances → read the full summaries... Oregon Court of Appeals, October 18th, 2023 by: Rankin Johnson CLOSING ARGUMENT - Burden shifting by state RESTITUTION - Reasonableness of costs SEARCH AND SEIZURE - Records checks RESTITUTION - Reasonableness of bills → read the full summaries... _________________________

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