Thursday, April 08, 2010

A legal discussion

There was a lot of talk yesterday (on Lars Larson) about Sgt. Kyle Nice displaying his weapon during a "road rage" incident.

Here is my take: we are a nation of laws. The police have to follow the same laws that we do. We should be treated the same when it comes to violations of the law.

So here is the law:

163.190 Menacing. (1) A person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.

166.190 Pointing firearm at another; courts having jurisdiction over offense. Any person over the age of 12 years who, with or without malice, purposely points or aims any loaded or empty pistol, gun, revolver or other firearm, at or toward any other person within range of the firearm, except in self-defense, shall be fined upon conviction in any sum not less than $10 nor more than $500, or be imprisoned in the county jail not less than 10 days nor more than six months, or both. Justice courts have jurisdiction concurrent with the circuit court of the trial of violations of this section. When any person is charged before a justice court with violation of this section, the court shall, upon motion of the district attorney, at any time before trial, act as a committing magistrate, and if probable cause be established, hold such person to the grand jury.

That's it. Prove intent on the menacing or you have nothing. There is NO LAW regarding brandishing or displaying your firearm. You are free to open carry in this state and you are free to handle your firearm as long as you don't point it at someone or have the intent to cause someone fear of imminent serious physical injury or death.

With that being said, I have no doubt that a non-government employee would have been treated differently in the same situation. Where I differ from the majority of opinions on the radio yesterday is that I'm not arguing for the officer to be punished, I'm arguing that us lowly citizens should be left alone when we don't break the law.

NOTE: I am not an attorney and you should never take legal advice from anyone on the internet. If you are interested in understanding Oregon's laws regarding to firearms please please please read the book UNDERSTANDING OREGON'S GUN LAWS.


Anonymous said...

There is NO LAW regarding brandishing or displaying your firearm.

Stand your ground, Miglavs: Walk into your nearest police station "brandishing" a couple of your favorite firearms. Don't point them at anyone, just "brandish" them. Let us know what happens.

Daniel said...

There is no ORS dealing with "brandishing." It is not against the law. Feel free to cite one if you think I'm wrong.

Anonymous said...

This is a very disturbing case.

I am not sure who at OSP made the decision to send in SWAT for a 3 am raid? This seems very excessive.

I am also not sure what is the deal with the "supervisor" at ODOT that seems to be unable to supervise without calling the cops, and using them as bouncers for his office.

All in all this is going to end uup cost the taxpayes a whole lot of money.

Pinkie French

Anon 7:11 said...

I didn't say there was, I just suggested an experiment in celebrating your precious freedom.

Anonymous said...

Anon 7:11

If you read that book that Daniel suggests you will understand that many public places are off limits on the open carry. For example, court houses, federal office biuldings, and any private property or business that displays signs against firearms. The law is very vague and it takes lots of money in attorney fees to get yourself out of trouble. No one here is that stupid. Most police I have talked to are very curtious to conceiled carry and open carry as long the person is well trained and reasonable.

MAX Redline said...


You're commenting on an entirely different case. The ODOT worker in southern Oregon has nothing to do with the case involving an off-duty PPD officer showing a gun in SW Portland.

MAX Redline said...

In point of fact, as the off-duty cop didn't point the weapon (verified by an independent witness), he is guilty of no crime.

Nonetheless, he demonstrated exceedingly poor judgement. There were any number of other options available, but he chose to be stupid.

In any given situation, once you choose to escalate, it's really difficult to de-escalate. It's always best to check options before ramping up.

Anonymous said...

There is sufficient evidence there such that a jury could find mens rea. an appellate court would uphold a jury verdict against the cop on these facts.

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