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Threatening to Use a Weapon versus Using a Weapon to Threatenby: Ryan Scott • June 8, 2026 • no comments I wrote about this more than ten years ago, but it's probably worth revisiting since every now and then, the distinction might be useful. If I point a gun at you in a menacing way, that will likely constitute the crime of Unlawful Use of a Weapon, barring any defenses. But what if I tell you that if you don't leave my neighborhood, I'm going to go inside, get a gun, and then come back out and shoot you? Is that UUW? Here's what the Oregon Supreme Said about the subject, when tasked with deciding whether the "use" in UUW encompassed threatening someone with a firearm.
Sex and Firearmsby: Ryan Scott • May 6, 2026 • no comments Yes, another proportionality post. I am comparing two arguments, one I have raised frequently in the past few years, and one that I wrote about fourteen years ago and then forgot. Under the Oregon Constitution, a sentence not only can't be cruel and unusual. It also can't be disproportionate. This comes into play in three ways. The first is that the sentencing scheme is unconstitutional because it violates vertical proportionality. That is, the sentence for the lesser-included offense is greater than the sentence for the greater offense. For example, under Sex Abuse II, sex with a 16 or 17 year old is ranked as a crime seriousness 7 under the guidelines but Rape III, sex with a 14 or 15 year old, is ranked as a crime seriousness 6. Under a case the state believes was wrongly decided, State v. Simonson, this scheme violates the proportionality clause. Alternatively, if the facts of any particular case -- taking into account a number of factors -- are far less egregious than typical, then the typical sentence might also violate proportionality. See Buck/Rodriguez. The third way is that the characteristics of the defendant (age, mental ability, mental health) make the defendant less culpable and therefore the sentence that would be imposed on a normally culpable defendant would be disproportionate when imposed on the less culpable defendant. Not going to touch on this one in this post. I have proposed an expansion of the sentencing scheme/vertical proportionality argument, which can be thought of a facial challenge, but my expansion is part-facial, part-as-applied. If the exact same behavior can be charged as either a felony or a misdemeanor, how is it possible that both a felony sentence and a misdemeanor sentence can be proportionate to the crime? The Oregon Supreme Court asked this question sixty years ago but it hasn't answered it yet.
State v. Pirkey, 203 Ore. 697, 705 (Or. 1955) The Court of Appeals, in a very different context, made this observation:
State v. Cook, 163 Or App 578, 586, 989 P2d 474 (1999). This comes into play, because sex abuse II, when it is based solely on the age of the victim being under 18, is a felony. But contributing to the sexual delinquency of a minor, the exact same behavior -- sex with someone under 18 -- is a misdemeanor. How can both be proportionate? How can that, according to the COA, be logical? Okay, that's the sex part. Here's the firearm part. Arguably, the same dynamic is at play when a defendant is charged with unlawful use of a weapon based on threatening someone with a firearm.
State v. Ziska, 355 Or 799, 811, 334 P3d 964, 970 (2014) UUW is, obviously, a felony. But pointing a firearm at someone "with malice" is also a misdemeanor.
Whether or not they are describing the same crime would depend on the definition of "with malice." Without looking at the legislative history, I struggle to see how pointing a firearm at someone with malice could mean anything other than a threat to shoot them. What else could malice mean? To be clear, this is not something where the sentencing scheme is itself disproportionate. UUW can be charged any number of ways, and it would be necessary to take into account what the defendant actually did. But if pointing a firearm at someone with malice necessarily encompasses pointing a firearm at them in order to threaten shooting them, then how can both a felony sentence (perhaps five years under the gun minimum) or a maximum six-month jail sentence for a misdemeanor both be proportionate to the offense? What to do about this? At sentencing on either a sex abuse II based solely on age, or UUW based solely on threatening someone with a firearm, ask for immediate misdemeanor treatment, because doing otherwise would violate Oregon's proportionality clause. Be sure to quote Pirkey when you do so. One side note. If your client is accused at pointing a gun at someone, and your argument is that they did so as a warning, not a threat, I highly recommend asking that the jury be allowed to consider the lesser-offense of "pointing a firearm at another."
Challenging the Gridblock for Online Sexual Corruptionby: Ryan Scott • May 1, 2026 • no comments This week, the Oregon Supreme Court remanded a case back to the Court of Appeals to decide whether the sentence for Online Sexual Solicitation of a Minor violates Article I, section 16, of the Oregon Constitution. Specifically, does it violate the rule known as vertical proportionality, whereby a lesser offense imposes a greater punishment than a greater offense? For example, if the sentence for theft in the third degree was greater than theft in the first degree, that would violate proportionality. Online sexual corruption of a child in the first degree is committed when a perpetrator uses an online communication to contact a person whom they reasonably believe is under 16 years of age for the purposes of arousing or gratifying the sexual desire of the perpetrator or another person and intentionally takes a substantial step towards meeting the child. Online sexual corruption of a child is a category 8 offense, which makes it presumptive prison. But if that same perpetrator has sex with, say, a 15 year old, the sentence is a category 6 offense and presumptive probation if the perpetrator has either no or little criminal history. Above, I used the phrase "lesser offense" in describing the situation where a lesser offense is treated more harshly than a greater offense. But that phrase "lesser offense" glosses over a significant legal issue. Note I did not say "lesser-included offense" because Online Sexual Corruption is a not a lesser-included offense. And the state would argue it is not always a lesser offense. For example, what if the defendant was communicating with a 10 year old? Imagine a not uncommon scenario where the defendant wasn't communicating with a child at all, but an undercover police officer who had logged into an adults-only website and told the defendant he was a minor child. Vertical proportionality has existed for a long-time in Oregon. Historically, it was limited to looking at the punishment for related offenses, not the facts of any particular case. More to the point, it has existed since long before Rodriguez/Buck, the cases which held for the first time that defendants could argue that the specific facts of their case rendered a sentence unconstitutionally disproportionate. So vertical proportionality meant the sentencing scheme was unconstitutional, but Rodriguez/Buck and their progeny meant a sentence could be unconsitutional as-applied to a specific defendant, based on their conduct and particular characteristics. The defendant in the hypothetical I described -- and probably the defendant in the vast majority of Online Sexual Corruption stings -- has, in my opinion, a very strong argument for an as-applied challenge. It is not unlike a scenario where a defendant is convicted of Using a Child in a Sexually Explicit Display, for soliciting a slightly lewd photo from a 15 year old and getting 70 months in prison, when having sex with that same 15 year old would result in probation. Under those facts, it's a very compelling argument that the greater sentence is disproportionate compared to the much lesser sentence for more serious behavior. But a facial challenge to the sentencing scheme is going to be a problem, because the state will have an argument that not every Online Sexual Corruption or Using a Child Case will involve less egregious behavior. In the abstract, it could be worse behavior, and the problem with a facial challenge is the court may have to consider abstractions, specifically whether Online Sexual Corruption could ever be worse than Rape in the Third Degree. In sum, you almost always want to argue the sentence is unconstitutional as-applied, in addition to any facial challenge you want to make. Next 20 Articles Case Reviews
Oregon Supreme Court, June 4th, 2026by: Rankin Johnson WITNESSES - Competency EVIDENCE - Other bad acts Oregon Court of Appeals, June 3rd, 2026by: Rankin Johnson SENTENCING - Factfinding DRIVING PRIVILEGES - Mootness DISORDERLY CONDUCT - Sufficiency JURY INSTRUCTIONS - Timing Oregon Court of Appeals, May 28th, 2026by: Rankin Johnson DEFENDANTS STATEMENTS - Compelling circumstances SENTENCING - Merger JOINDER, SEVERANCE, AND ELECTION - Substantial prejudice ONLINE SEXUAL CORRUPTION - Legislative purpose DEFENSES - Self-defense Oregon Court of Appeals, May 20th, 2026by: Rankin Johnson DRUG OFFENSES - Sufficiency EVIDENCE - Other bad acts Oregon Court of Appeals, May 13th, 2026by: Rankin Johnson DEFENSES - Self-defense MUNICIPAL AND JUSTICE COURTS - Right to counsel _________________________ |
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