Oregon Gun Rights

By far the most common reason to lose your Second Amendment Rights is the conviction of a Felony or the conviction of a Misdemeanor crime of Domestic Violence.  For these clients, the most comprehensive method is to file a Motion to Set Aside the conviction.  Often called an Expungement, a Motion to Set Aside not only restores your constitutional rights, but it also seals the arrest record, removes the conviction from your record, and seals the court file.  Once complete, the individual is deemed not to have ever been arrested for or convicted of the crime.

Under Oregon law, we can set aside (expunge) most Class C Felony convictions and most Misdemeanor Convictions, and in some circumstances Class B Felony convictions.  Certain crimes cannot be set aside, including Class A Felony convictions, Class B Felony convictions that are less than 20 years old, Sex Crimes, Traffic Crimes, and crimes involving Child Abuse.  More information regarding Expungements can be found on your page that discusses this topic in more detail located here.

When an Expungement is not a possibility, it may be possible to reduce the felony conviction to a misdemeanor conviction which will result in the restoration of your gun rights.  This is a good option for individuals convicted of Driving While Suspended or Revoked as a Felony, because that crime cannot be expunged under Oregon law.  The granting or a Motion to reduce a Felony to a Misdemeanor is up to the discretion of the court.  It is based upon the court’s careful consideration of the individuals past conduct and current circumstance.  The court is authorized to reduce a felony to a misdemeanor pursuant to the provisions of ORS 161.705.  This law provides that the court must “consider the nature and circumstances of the crime and the history and character of the defendant.”  The court must then be convinced that it would be “unduly harsh to sentence the defendant to a felony.”  Because this relief is discretionary, meaning it is up to the court, having an experienced attorney assist with alternative is imperative.

Under Federal and Oregon law, if an individual is subject to a court order restraining the individual from harassing, stalking or threatening a child or an intimate partner, you may not possess a firearm.  That means that if you are the subject of a Stalking Order (ORS 30.866) or a Restraining Order (ORS 163.765) you may not possess or purchase a firearm.  In most cases, a Restraining Order will expire after one year.  Once the Restraining Order expires, it no longer prevents you from possessing or purchasing a firearm.  However, Stalking Orders are permanent – unless vacated by the court.

Stalking Orders and Restraining Orders are not criminal proceeds.  They are not criminal convictions, and as such are not eligible to be “expunged”.  However, because they are civil proceedings, the issuing court retains jurisdiction to modify the order or to vacate the order upon the request of either party to the proceeding.  Though there is no specific statutory provision for “termination” of a Stalking Order, the Oregon Supreme Court and the Oregon Court of Appeals have consistently ruled that a court may terminate and vacate a Stalking Order in the appropriate circumstances.

When faced with a motion to terminate a Stalking Order, the court’s function is not to revisit the prior order to determine if it was correctly issued or not.  It is also not up to the court to determine if current behaviors would justify a new Stalking Order.  The court is to determine if the petitioner (person who requested the Stalking Order) continues to suffer ‘reasonable apprehension’ due to the past acts of the respondent.  Put another way, the court must determine if the basis for issuing the original order continues to remain at the present time, and whether the petitioner continues to have a reasonable, rational basis to fear the respondent.  Given the complexity of this analysis retaining an experienced attorney is critical when dealing with Stalking Orders.

Regardless of the nature of a felony conviction (or a domestic violence crime), Oregon law allows for the filing of a Petition in the Circuit Court for the county of your residence to restore your gun rights under State law (ORS 166.274).  You may only apply for the restoration of your rights once per calendar year. The petition includes information regarding your criminal history, but most importantly includes information about what efforts you have made to be rehabilitated.  A copy of the petition is served on either the city chief of police or sheriff of the county where the court is located.  The Sheriff or the Chief of Police are entitled to respond and object to granting the relief if there is a legitimate basis for continued concern.

The burden is on the petitioner (person seeking the relief) to prove that he or she is does not pose a threat to the safety of the public or to himself or herself. The burden is not proof beyond a reasonable doubt but by clear and convincing evidence, which is also a high legal standard. This is usually demonstrated by character letters, witnesses, and testimony about the petitioner’s conduct since the time of the conviction.  Each case is unique, so the testimony and evidence offered is specific to the individual and their personal circumstances.

Once the judge grants the petition, a copy of the judgment, along with a fingerprint card, is sent to the department of state police computerized criminal history file.  This will result in a notation being made that the individuals rights to possess a firearm under State law have been restored.

If your rights are restored by Expungement, Reduction to a Misdemeanor, or Vacating a Staling Order, you may both possess and purchase a firearm.  If your rights are restored through a Petition for Restoration, you may not be eligible to purchase a firearm under Federal law.

Under Federal law, you may not purchase (or possess) a firearm unless your “civil rights” are fully restored.  There is a loss of your civil rights if you are convicted of any felony, or if you are convicted of a misdemeanor involving violence and dishonesty.  Federal courts have ruled that there are three fundamental civil rights when it comes to purchasing a firearm: your right to vote, your right to bear arms, and your right to serve on a jury.  Therefore, all three of these rights must be intact or restored.  Under Oregon law, the right to vote is automatically restored upon release from custody. The right to bear arms is restored when a Judge grants the petition mentioned above.  The right to serve on a jury is restored under the Oregon Constitution 15 years after completing a felony sentence.  The right to serve on a jury in most misdemeanor convictions is not impaired, but for misdemeanor convictions involving violence or dishonesty, the right to serve on a jury is restored 5 years after the sentence is imposed.

Again, because each case is unique, it is best to speak to one of our attorneys if you have any question about your ability to purchase a firearm.