State v. Cortes and the Design‑Based Definition of “Weapons” in Oregon Probation Law

State v. Cortes and the Design‑Based Definition of “Weapons” in Oregon Probation Law

I. Introduction

In State v. Cortes, 374 Or 461 (2025), the Oregon Supreme Court resolved a deceptively simple but legally significant question: when a standard probation term prohibits a person from possessing “weapons,” what counts as a “weapon”?

The defendant, Anthony Richard Cortes, was on felony probation and subject to the general condition in ORS 137.540(1)(j) not to “possess weapons, firearms or dangerous animals.” When he came to the probation office with a knife in his backpack—described by all as a “steak knife” with a rounded tip—his probation officer treated that possession as an automatic violation on the theory that “all knives” are weapons.

The Supreme Court rejected that approach. Interpreting ORS 137.540(1)(j), the Court held that “weapons” in this context means:

instruments designed primarily for offensive or defensive combat, or instruments that would reasonably be recognized as having substantially the same character, and not tools or objects designed primarily for utility, even when those tools can be used as weapons under some circumstances.

On that basis, the Court reversed the probation-violation judgments and remanded for a factual determination whether the knife at issue was, in design and character, a combat‑type weapon or a utility tool. A dissent by Justice Bushong (joined by Justice Garrett) would instead have adopted a use‑ and intent‑based approach and affirmed the violation.

This decision creates an important precedent on the scope of probation conditions, the meaning of “weapons” in Oregon law, and the constitutional requirement that supervised persons receive fair notice of what conduct is prohibited.

II. Case Background and Procedural History

A. Defendant and Underlying Convictions

Cortes was serving two concurrent terms of probation:

  • One for three counts of computer crime (unauthorized use of a school district’s credit card), ORS 164.377(2); and
  • Another for second-degree burglary, ORS 164.215, and second-degree criminal mischief, ORS 164.354 (breaking into a marijuana dispensary and a laundromat).

He received a total of five years’ probation and was made “subject to all general conditions of probation,” including ORS 137.540(1)(j), which provides that a probationer shall:

“Not possess weapons, firearms or dangerous animals.”

Cortes was unhoused and carried his possessions—including, he claimed, basic eating utensils—with him in a backpack.

B. The Probation Office “Weapons Notice”

Douglas County probation officer Vidal supervised Cortes. At intake, Vidal had Cortes sign a local “weapons notice,” which purported to explain what the office considered prohibited:

“All persons on supervision for felony or misdemeanor, general condition [ORS 137.540(1)(j)] states don't possess weapons, firearms, or dangerous animals. While on supervision you are not allowed to possess or have custody and control of any weapons capable of causing physical injury. This includes, but is not limited to, archery equipment, crossbow, tear gas, mace, pepper sprays, all knives, and work tools such as utility knives or any other items your [probation officer] considers weapons.”

Vidal told Cortes to keep anything he considered a “tool” in a toolbox or similar container. At some point the office knew Cortes was unhoused.

C. The Alleged Violation

When Cortes arrived for a scheduled probation appointment, Vidal saw a knife handle sticking out of Cortes’s backpack. Vidal had him drop the bag and removed the knife. It was approximately nine inches overall, with a 4½‑inch blade and a rounded tip, described as “like a steak knife.”

Vidal:

  • Arrested Cortes for violating the weapons condition; and
  • Filed a violation report seeking revocation of probation.

D. Hearing in the Circuit Court

At the revocation hearing, critical testimony and argument centered on what “weapon” means:

  • Vidal testified he had received training and understood a weapon as “anything that can cause me harm.”
  • He confirmed the office’s “weapons notice” treated “all knives” as weapons, including work tools like utility knives.
  • Pressed on whether common objects (scissors, screwdrivers) were forbidden, Vidal’s answers fluctuated: if pointed at him, yes; if used benignly, perhaps not.
  • He acknowledged that if Cortes used a steak knife “just to eat,” that would be allowed, but “if he's walking around with a knife in his backpack he shouldn't be.”

The state argued that:

  • Cortes had been told he could not possess anything that could harm his probation officer; and
  • The knife could clearly cause harm, so its possession violated ORS 137.540(1)(j).

The defense argued:

  • The item was a rounded-tipped steak knife like one used at a restaurant for food;
  • “All knives” in a local notice cannot override the statutory term “weapons”; and
  • A necessary eating utensil carried by an unhoused person is not the type of “weapon” contemplated by the statute.

The trial court made a very brief ruling:

“I do find that he's in violation of his probation. This is clearly a knife. And under the, the weapons provision that the Probation Officer read[,] this clearly constitutes a weapon.”

The court imposed 30 days in jail but declined to revoke probation.

E. Appeal and Review

On appeal, Cortes renewed his statutory-interpretation arguments. The state:

  • Urged a broad, ordinary-language definition of “weapon” as anything used or usable to inflict injury; and
  • Did not claim this particular knife was designed for combat, but argued its manner of carriage (handle sticking out) allowed the trial court to infer it was being carried for protection or fighting.

The Court of Appeals affirmed without opinion. The Oregon Supreme Court allowed review to clarify the meaning of “weapons” in ORS 137.540(1)(j).

III. Summary of the Supreme Court’s Decision

A. Holding

The Supreme Court held:

  • For purposes of ORS 137.540(1)(j), “weapons” means instruments designed primarily for offensive or defensive combat or instruments reasonably recognized as having substantially the same character;
  • It does not include tools or objects designed primarily for utility (e.g., normal work tools, domestic utensils), even if such items can be misused as weapons in some circumstances;
  • The trial court erred by treating “all knives” as per se weapons and by failing to make a factual finding about the design and character of Cortes’s knife under this standard; and
  • Because the trial court applied the wrong legal standard, the judgments must be reversed and the case remanded for factual inquiry consistent with the Court’s definition.

B. Treatment of the Probation Office “Weapons Notice”

The Court emphasized that the local “weapons notice” cannot expand the statutory condition:

  • A probation officer’s authority derives from the statute and the judgment, not from internal documents (ORS 137.630);
  • ORS 137.540 does not say “all knives” or “work tools” are always weapons; and
  • The meaning of “weapons” must be determined by legislative intent, not by office policy.

C. Role of Constitutional Avoidance and Fair Notice

Faced with competing plausible definitions of “weapons,” the Court invoked the maxim of constitutional avoidance:

  • Adopting the state’s broad, “anything that could cause harm” definition would create serious vagueness and fair‑warning problems under the Oregon Constitution and federal due process.
  • Because probationers can violate conditions through both actual and constructive possession, a broad definition would expose them to sanction for possessing nearly any ordinary household or work object.
  • That would:
    • Deprive probationers of notice of what was prohibited;
    • Invite arbitrary, officer‑by‑officer enforcement; and
    • Conflict with Article I, section 34’s goals of “accountability, reformation, protection of society or rehabilitation.”

The Court therefore adopted the narrower, design‑based definition that avoids those constitutional hazards.

D. The Dissent

Justice Bushong, joined by Justice Garrett, dissented. They would:

  • Focus not on how an object was designed, but on whether the probationer possessed it as a weapon, inferred from the surrounding circumstances;
  • Hold that Cortes’s method of carrying the knife—handle protruding, handle wrapped in tape for grip—permitted the trial court to find he intended to use it as a weapon; and
  • Affirm the probation violation under ORS 137.540(1)(j) based on that factual finding.

The dissent also argued that the legislative history shows the legislature intentionally left “weapon” broad and overinclusive, accepting line‑drawing problems in favor of public safety and trusting prosecutors and courts to exercise judgment.

IV. Detailed Analysis of the Majority Opinion

A. Statutory Framework: Probation and ORS 137.540

1. Evolution of Oregon’s probation scheme

The Court reviewed the history of probation in Oregon to understand the background and purpose of ORS 137.540:

  • 1931: Oregon first enacted a probation statute (Or Laws 1931, ch 396).
    • Courts had broad discretion to impose “conditions of probation,” including various behavioral requirements (avoid “injurious or vicious habits,” work faithfully, make restitution, etc.).
    • No mention of weapons conditions at that time.
  • 1970s: Probation became the predominant sanction, and litigation over probation conditions increased.
  • Martin and Donovan: In State v. Martin, 282 Or 583 (1978), and State v. Donovan, 307 Or 461 (1989), the Court articulated limits on probation conditions:
    • Conditions must be proportionate and reasonably related to the purposes of probation;
    • Those purposes include rehabilitation, personal freedom, and public safety.

2. 1981: General and special conditions; first appearance of a “weapons” condition

In 1981, the legislature restructured probation via House Bill 2317:

  • Created general conditions (applicable to all probationers unless specifically deleted) and special conditions (tailored to the offender and offense).
  • Placed the conditions in ORS 137.540 as we know it today.
  • Introduced a weapons‑related special condition: a court could order the probationer to “[n]either own, possess nor control any firearm or any other specified weapon.” ORS 137.540(2)(k) (1981).

Crucially, that 1981 provision tied “weapon” to court specification—a judge could identify particular weapons, giving the probationer clear notice.

3. 1993: General weapons condition and “structured sanctions”

In 1993, as part of a larger probation reform (SB 139), the legislature:

  • Enacted the current ORS 137.540(1)(j), making “not possess weapons, firearms or dangerous animals” a general condition automatically applicable to all probationers unless deleted; and
  • Created a system of “structured, intermediate sanctions” that probation officers (not just courts) could impose for violations (ORS 137.592 and related provisions).

The legislative purposes included:

  • Making sanctions for violations “swift, certain and fair” (ORS 137.592(1));
  • Using prison space systematically for those who pose a serious public threat (ORS 137.592(2)); and
  • Increasing predictability and uniformity in how probation conditions are applied, by providing standard conditions and reducing ad hoc officer interpretation.

The Court stressed that SB 139:

  • Expanded the authority of probation officers to sanction, but
  • Did not give officers authority to redefine or expand the conditions themselves beyond what statutes and courts prescribe.

4. Policy themes emerging from the framework

From this development, the Court drew three key contextual themes:

  1. Probation’s purposes are balanced: maximize rehabilitation and personal freedom, consistent with public safety.
  2. Predictability and clarity in conditions are central legislative goals, particularly to avoid probation officers having to guess at vague judicial intentions.
  3. Probation officers are implementers, not lawmakers; they enforce and sanction based on conditions defined by the legislature and imposed by courts.

Those themes weighed against any interpretation of “weapons” that would reintroduce vagueness and officer‑by‑officer discretion—the very problems the 1981 and 1993 reforms were meant to solve.

B. Textual and Contextual Interpretation of “Weapons” in ORS 137.540(1)(j)

1. Dictionary definitions: design‑based vs use‑based senses

The Court began with dictionary definitions, recognizing their limitations. It found:

  • Webster’s defines “weapon” as “an instrument of offensive or defensive combat: something to fight with.”
  • “Instrument” itself can overlap with “utensil” and “implement,” suggesting that some definitions of “weapon” hinge on design for combat, while others capture anything “used in destroying, defeating, or physically injuring an enemy.”
  • Black’s Law Dictionary defines “weapon” as “[a]n instrument of offensive or defensive combat, or anything used, or designed to be used” to injure a person.

Thus, even the dictionaries reflect a tension:

  • A design‑based sense (objects manufactured or adapted for combat); and
  • A broader, use‑based sense (any object used or usable to cause harm).

Because both readings were plausible, the Court turned to context to select the meaning that best fits ORS 137.540(1)(j).

2. Immediate statutory context: “weapons, firearms or dangerous animals”

The phrase “weapons, firearms or dangerous animals” presented interpretive clues.

a. “Firearms” as design‑based objects

The Court noted that elsewhere in Oregon law—and specifically in the Criminal Code—“firearm” is defined in design terms:

  • ORS 166.210(3): a firearm is “a weapon, by whatever name known, which is designed to expel a projectile by the action of powder” (emphasis added).
  • Sub‑definitions for “handgun” and “machine gun” likewise focus on how the weapon is designed or modified (e.g., to fire multiple shots with a single trigger pull).

This strongly suggests that, at least for neighboring words in ORS 137.540(1)(j), the legislature was thinking in terms of object design, not every object capable of harm.

b. “Dangerous animals” as a legal term of art

“Dangerous animals” appears nowhere else in Oregon statutes at the time of enactment, but had a recognized meaning in tort law, heavily influenced by the Restatement (Second) of Torts:

  • “Wild animals” are generally deemed dangerous as a class;
  • Some domestic species or classes can also be deemed dangerous; and
  • Individual animals can become “dangerous” through known vicious behavior.

While “dangerous animals” involves behavior and inherent traits rather than human‑engineered design, it still roughly tracks categories of inherently risky objects, not ad hoc assessments of any harmless object that might, in some context, cause injury.

Taken together, “firearms” and “dangerous animals” did not support the state’s plea for a sweeping, use‑based concept of “weapons.” If anything, they pointed toward a category of inherently combative or dangerous items.

3. The significance of “possess” in a criminal‑law context

The majority placed heavy weight on the verb “possess.” Although ORS 137.540 does not define it, Oregon’s criminal code uses “possess” in a well‑settled technical sense:

  • ORS 161.015(9) defines possession as having “physical possession or otherwise [exercising] dominion or control over property”;
  • Case law (e.g., State v. Fries, 344 Or 541 (2008); State v. Barger, 349 Or 553 (2011)) distinguishes:
    • Actual possession: physical holding or carrying; and
    • Constructive possession: control over the location where the item is kept (e.g., a knife in a kitchen drawer).

When the legislature prohibits a probationer from “possess[ing] weapons,” it is presumptively invoking both forms:

  • Carrying a weapon on one’s person; and
  • Keeping a weapon under one’s control at home, in a vehicle, or elsewhere.

This is where the state’s broad, use‑based definition falters. If a “weapon” is any item capable of inflicting harm when misused, then—due to constructive possession—probationers would be effectively barred from:

  • Owning or keeping ordinary household objects (kitchen knives, hammers, baseball bats, heavy tools); or
  • Possessing many basic work tools or utensils in their homes or vehicles.

The Court deemed this outcome highly implausible as a matter of legislative intent, and profoundly problematic from a constitutional “fair warning” standpoint.

4. Other probation conditions as context: searches and visits

The Court also read ORS 137.540(1)(j) in light of neighboring conditions:

  • Under ORS 137.540(1)(f), a probationer must allow the officer to visit their residence or work site and conduct a “walk‑through” of common areas and rooms under their control.
  • Under ORS 137.540(1)(g), with “reasonable grounds to believe that evidence of a violation will be found,” an officer may request consent to search the probationer, vehicle, or premises.

Given those provisions, a broad definition of “weapons” as “anything that could cause harm” would have troubling consequences:

  • On almost any visit, an officer would see objects capable of causing injury (tools, cutlery, sports equipment) and therefore have “reasonable grounds” to think a “weapon” violation had occurred.
  • This would, in practical effect, justify frequent or constant requests for consent to search, with refusal itself being a probation violation (State v. Reed, 371 Or 478 (2023)).

The Court saw no indication that the legislature meant to create a de facto permission for limitless search demands or to put probationers under such a sweeping and uncertain prohibition in their own homes.

5. Related weapons statutes

The Court examined several related weapons provisions, both to see how “weapon” or similar terms are used and to contrast those specific regimes with the general probation condition.

a. ORS 166.240: Concealed weapons

Before later amendment, ORS 166.240(1) criminalized carrying concealed:

  • “Any knife having a blade that projects or swings into position by force of a spring or by centrifugal force and commonly known as a switchblade knife”;
  • “Any dirk, dagger, ice pick, slung shot, metal knuckles, or any similar instrument by the use of which injury could be inflicted….”

In City of Portland v. Lodi, 308 Or 468 (1989), the Court held that the phrase “any similar instrument” was not meant to include all knives, but rather knives with a history or design for combat (e.g., dirks, daggers). The legislature left out ordinary utility knives, such as steak knives.

This supported the majority’s position that, when the legislature wants to treat some knives as “weapons,” it tends to focus on those with combat‑oriented design features or historical usage.

b. ORS 166.360: Weapons in public buildings (later‑enacted, more sweeping regime)

The state invoked ORS 166.360(10)(b), defining “weapon” for purposes of weapons‑in‑public‑buildings and court‑facilities statutes (enacted 22 years later). That definition includes:

“Any dirk, dagger, ice pick, slingshot, metal knuckles or any similar instrument or a knife, other than an ordinary pocketknife with a blade less than four inches in length, the use of which could inflict injury upon a person or property[.]”

But the majority distinguished that regime:

  • It applies only to public buildings and court facilities;
  • It is much more sweeping (effectively treating all but very small pocketknives as “weapons” in those specific locations); and
  • Applying it wholesale to probation conditions would mean almost all probationers are forbidden from having ordinary kitchen knives, an implausible reading of legislative intent for ORS 137.540(1)(j).

6. Case law context: knives, arms, and probation

The state relied heavily on State v. Delgado, 298 Or 395 (1984), where the Court held a switchblade knife is an “arm” protected under Article I, section 27, of the Oregon Constitution. In Delgado, the Court observed:

  • “Knives have played an important role in American life, both as tools and as weapons.”
  • The folding pocketknife has long been used “primarily for work, but also for fighting.”

The state argued that this establishes knives as “both tools and weapons,” implying that any knife is inherently a weapon.

The Cortes majority rejected that reading:

  • Delgado addressed whether a switchblade is an “arm” for constitutional purposes, not whether all knives are always “weapons” under a probation statute.
  • Delgado also implicitly recognized that some knives are primarily designed as tools and others primarily as weapons; it did not erase that distinction.
  • The passage on “offensive” vs “defensive” weapons in Delgado—relied on more heavily by the dissent than by the majority—went to a different point: that hand‑held weapons commonly serve both offense and defense, not that every knife is legally a “weapon” at all times.

More broadly, the Court reaffirmed that words with established legal meanings (like “possess”) should generally be given those meanings, and probation conditions must be read consistently with earlier decisions in Martin, Donovan, Graves, and others concerning proportionality, clarity, and fair notice.

C. Legislative History

1. 1981: Concerns over line‑drawing and overbreadth

The Court’s review of the 1981 legislative history of HB 2317—where “weapon” was first proposed as part of a probation condition—revealed:

  • Legislative counsel Stephen Griffith explicitly worried about “line drawing problems” for “kitchen knives, letter openers, ice picks and chains.”
  • Representatives of defense and prosecution groups (Metropolitan Public Defender, Oregon Trial Lawyers Association, Oregon District Attorneys Association) echoed concerns that “weapon” was inherently vague:
    • Jerry Cooper of ODAA suggested using “deadly weapon” instead, which referred more precisely to items “specifically manufactured for the purpose of injuring or killing someone” (e.g., switchblades) and avoided capturing “any piece of property” that might be misused.
    • He gave examples like glasses and chairs—objects that are not typically thought of as “weapons” but can be used to injure someone.

So, from the outset, legislators were put on notice that “weapon” could become over‑inclusive and raise fairness problems.

2. 1993: Renewed debate; SB 334 and the concept of “dangerous weapons”

In 1993, two bills intersected:

  • SB 139 (creating ORS 137.540(1)(j) as a general “weapons, firearms or dangerous animals” condition); and
  • SB 334 (amending weapons statutes for public buildings and concealed weapons, emphasizing “intentional” possession of a “dangerous weapon”).

In SB 334 hearings:

  • Legislators were warned, again, that “dangerous weapon” could include almost anything—boiling water, a car, a rock, cowboy boots, even the sidewalk—if used violently.
  • To avoid accidental criminalization of ordinary behavior (e.g., carrying benign objects into public buildings), they imposed a requirement that the person “intentionally” possess the item “as a dangerous weapon.”

Against that backdrop, when SB 139’s probation condition on “weapons” was discussed:

  • Senator Jeannette Hamby (SB 334’s chief proponent) suggested defining “weapons” in ORS 137.540(1)(j) more precisely, borrowing from federal definitions;
  • Senator Robert Shoemaker likewise suggested tying “weapon” to definitions in the Oregon Criminal Code to avoid vagueness;
  • ODAA representative Dale Penn agreed that referencing the Criminal Code—“which would detail knives and different types of things”—would provide clarity.

Yet, despite broad recognition of potential overbreadth, the legislature ultimately did not define “weapon” in the probation statute, leaving the term as is.

The Court acknowledged that legislative inaction here was “puzzling” and open to multiple interpretations, but found no evidence that lawmakers affirmatively intended the ultra‑broad “anything that can cause harm” reading adopted by the Douglas County probation office.

3. Legislative purpose vs. inaction

Rather than construing legislative silence as an endorsement of the broadest possible reading, the majority took a more nuanced approach:

  • The broad legislative purpose (predictability, fairness, avoidance of vague conditions) militated against allowing local officers to transform “weapons” into “anything my officer thinks is a weapon.”
  • Nothing in the record suggested legislators wanted chairs, dishes, and work tools to be routinely treated as forbidden “weapons” on probation.
  • Faced with ambiguous text and silence on the specific definitional change, the Court turned to the constitutional‑avoidance canon to choose the reasonably narrow reading that best avoided vagueness problems.

D. Constitutional Avoidance and Fair Warning

1. Oregon constitutional principles

The Court invoked established Oregon case law on vagueness and equal privileges:

  • State v. Graves, 299 Or 189 (1985): criminal statutes must be “sufficiently explicit” to inform people of what conduct is prohibited;
  • Vague laws that give “unbridled discretion” to decision‑makers can violate equal privileges and immunities by leading to unequal application.

The Court extended those concerns explicitly to probation officers: vague conditions allowing each officer to decide, case‑by‑case, what is or is not a “weapon” risk arbitrary and unequal enforcement.

2. Federal due process and fair warning

The Court also referenced federal due process principles:

  • State v. Illig‑Renn, 341 Or 228 (2006), citing Grayned v. City of Rockford, 408 US 104 (1972): people must be given a “reasonable opportunity to know what is prohibited so that [they] may act accordingly.”
  • Griffin v. Wisconsin, 483 US 868 (1987): probation regulations that establish behavior standards cannot be interpreted so unnaturally that they fail to provide adequate notice.
  • Federal circuit cases (e.g., United States v. Evans, 883 F3d 1154 (9th Cir 2018); United States v. Simmons, 343 F3d 72 (2d Cir 2003)) emphasize clarity and notice in supervised‑release conditions.

The Court additionally linked fair‑warning principles to Article I, section 34 of the Oregon Constitution, which explicitly addresses post‑conviction supervision:

Upon conviction, courts and agencies may order programs “to provide accountability, reformation, protection of society or rehabilitation.”

The Court reasoned that “accountability” and “reformation” cannot be achieved when the supervised person lacks clear notice of what is prohibited. It thus treated Article I, section 34 as an independent and adequate state constitutional basis for requiring clarity in probation conditions.

3. Why a use‑based definition of “weapons” raises constitutional concerns

A pure use‑based definition (“anything that can cause harm”) combined with constructive possession presents specific constitutional problems:

  • Unpredictability: Probationers could not reasonably anticipate in advance which ordinary items—frying pans, screwdrivers, power tools, even plastic cutlery—might later be deemed “weapons” depending on an officer’s perception.
  • Arbitrary enforcement: Different officers could adopt inconsistent personal thresholds (“anything that can harm me” vs. only obvious combat items), producing unequal treatment.
  • Chilling lawful conduct: Houseless probationers like Cortes, who must carry tools and utensils with them, would be placed in impossible positions: they cannot know which items might suddenly be reclassified as forbidden weapons.

To avoid these problems while remaining faithful to the statutory language and legislative purposes, the Court adopted a design‑based definition, anchored in object characteristics and common social understanding.

4. Comparative approaches

The Court noted that other jurisdictions’ standard supervision conditions explicitly adopt design‑based definitions:

  • Federal guidelines (USSG § 5D1.3(c)(10)): supervised persons must not possess “a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person, such as nunchakus or tasers).”
  • North Dakota: “dangerous weapon” under ND Cent Code § 12.1‑01‑04 is defined by a list of items (switchblade, dagger, billy, bludgeon, BB gun, etc.) and the fact that they are “weapons” by design or modification.

These more precise, design‑focused approaches provided additional support for the Court’s interpretation.

E. Application to Cortes’s Knife and the Required Factual Inquiry

Having articulated the legal standard, the Court turned to the record. It noted:

  • All parties agreed the knife resembled a “steak knife” with a rounded tip and a 4½‑inch blade.
  • The state never argued that the knife had special combat‑oriented design features or that it was a class of knife historically used for combat.
  • The trial court did not analyze the knife’s design, but simply declared:
    • “This is clearly a knife”; and
    • Under the probation office “weapons notice,” it “clearly constitutes a weapon.”

Because the trial court:

  • Accepted the Douglas County office’s “all knives” theory; and
  • Failed to apply the proper legal standard (design for combat or substantially similar character),

the Supreme Court held that the violation finding could not stand. On remand, the trial court must:

  1. Determine the physical characteristics and design features of the knife (e.g., typical steak knife, modified weapon, etc.); and
  2. Decide, as a factual matter, whether the knife is:
    • Primarily designed for offense/defense in combat or reasonably recognized as such; or
    • Primarily a utility tool (e.g., eating utensil or general‑purpose kitchen knife).

Only if the knife falls into the former category does its possession violate ORS 137.540(1)(j).

Important caveat: actual use of tools as weapons

The Court made clear that its decision:

  • Does not prevent a finding of a probation violation where a person actually uses a tool (hammer, bat, steak knife) as a weapon in a criminal way (e.g., assault, menacing, coercion, harassment).
  • In such cases, the violation can arise under the separate general condition to “obey all laws,” because the conduct itself is criminal (or constitutes a substantial step toward a crime, ORS 161.405).

The key distinction is:

  • Possession‑based violation under ORS 137.540(1)(j): limited to objects that are weapons by design or recognized character.
  • Conduct‑based violation (e.g., using a tool to threaten or injure): dealt with as a new crime or an “obey‑all‑laws” violation, even if the object is not a “weapon” by design.

Thus, the decision narrows the reach of the possession condition but leaves intact the state’s ability to respond to dangerous conduct.

Special conditions remain available

The Court noted that individual sentencing judges remain free to craft special conditions under ORS 137.540(2) when justified:

  • A court could, for example, impose a special condition that the probationer:
    • Not actually possess any type of knife outside the home; or
    • Only possess knives at a workplace where needed for employment.
  • Such conditions must still be “reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both” (Donovan, Martin).

In other words, Cortes does not forbid courts from restricting knives; it simply prevents probation officers or local forms from unilaterally converting the general statutory “weapons” condition into an “all knives, all the time” rule.

F. The Dissent’s Use‑Based, Intent‑Focused Approach

1. Core disagreement

The dissent agreed that knives can be both tools and weapons, but would draw the line differently:

  • Rather than focusing on design or common social recognition, the dissent would focus on how, and for what purpose, the probationer “possessed” the item.
  • If the circumstances showed the item was possessed with an intent to use it as a weapon, then the possession falls within ORS 137.540(1)(j).

In the dissent’s reading, “possess weapons” = “possess items as weapons,” and that status depends on intention, as inferred from the setting.

2. Application to Cortes

Applied to this case, the dissent highlighted:

  • The knife was in Cortes’s backpack with the handle sticking out, allowing quick access without removing the backpack;
  • The handle was wrapped in tape, suggesting modification for a better grip “in a threatening way” if he needed a weapon; and
  • Vidal reasonably perceived that manner of carriage as threatening and as possession of a “weapon.”

The dissent contrasted that with innocuous scenarios:

  • A knife at the bottom of a backpack wrapped with a fork and spoon, with a cup and plate—likely an eating utensil, not a weapon;
  • A hammer in a toolbox on the way to a construction job—possessed as a tool; or
  • A baseball bat in a duffel bag with a mitt and cleats on the way to a game—possessed for sport, not as a weapon.

In their view, the trial court made a factual finding that Cortes possessed the knife as a weapon, and that finding should be upheld as supported by the record. They would affirm the violation.

3. Legislative history and policy in the dissent’s view

The dissent read the legislative history differently:

  • Legislators were repeatedly “pointedly advised” that “weapon” was broad and could be overinclusive;
  • Twice, the legislature chose not to narrow it, suggesting acceptance of a broad concept of “weapon” for probation purposes;
  • They saw this as a deliberate policy choice to “err on the side of overinclusiveness” and leave it to prosecutorial discretion and trial judges to avoid punishing benign tool possession.

4. Re‑use of Delgado

The dissent also leaned on Delgado but in a different way:

  • Delgado rejected a design‑based “offensive vs defensive” distinction, holding that “it is not the design of the knife but the use to which it is put” that determines its character.
  • The dissent read that principle across, arguing:
    • It should be “whether the defendant possessed it to use it as a weapon” that matters under ORS 137.540(1)(j);
    • Design‑based categories (combat vs utility knives) are therefore less important than how the probationer situationally intends to use the object.

In short, the dissent advocates for a use‑ and intent‑centric interpretation of “possess weapons,” whereas the majority adopts a design‑ and category‑centric interpretation.

V. Key Precedents and Their Roles

The Court’s reasoning draws on, clarifies, or limits several important precedents:

  • State v. Martin, 282 Or 583 (1978):
    • Established that probation conditions must be proportionate and related to rehabilitation and public safety.
    • Cortes builds on Martin’s emphasis on proportionality and clarity.
  • State v. Donovan, 307 Or 461 (1989):
    • Reaffirmed the requirement that special probation conditions must promote public safety and rehabilitation.
    • Cortes references this standard when discussing permissible special conditions.
  • City of Portland v. Lodi, 308 Or 468 (1989):
    • Interpreted “any similar instrument” in ORS 166.240 narrowly, focusing on weapons historically used for combat.
    • Supports Cortes’s design‑based approach to distinguishing weapon‑knives from tool‑knives.
  • State v. Delgado, 298 Or 395 (1984):
    • Held a switchblade is an “arm” under Article I, section 27.
    • Recognized knives as both tools and weapons; emphasized that hand‑held weapons serve both offense and defense.
    • In Cortes, the majority carefully circumscribes Delgado’s significance, while the dissent uses its “use‑rather‑than‑design” language to argue for a more flexible test.
  • State v. Graves, 299 Or 189 (1985):
    • Articulated Oregon’s vagueness and equal‑privileges concerns about criminal statutes lacking clear standards.
    • Forms the backbone of the fair‑notice analysis in Cortes.
  • State v. Illig‑Renn, 341 Or 228 (2006):
    • Adopted the federal “reasonable opportunity to know what is prohibited” standard for fair‑warning analysis.
    • Cortes applies that reasoning to probation conditions.
  • State v. Gulley, 324 Or 57 (1996):
    • Held that “reasonable grounds” for a probation search require information supporting a reasonable belief of a violation and that a search will uncover evidence.
    • Cortes uses Gulley to show how a broad definition of “weapon” would authorize nearly constant search demands.
  • State v. Reed, 371 Or 478 (2023):
    • Confirmed that refusing a consent search can itself be treated as a probation violation in some circumstances.
    • Makes the stakes of expansive “weapons” definitions more acute.
  • State v. Wallace, 373 Or 122 (2024):
    • Discussed how sufficiency-of-evidence analysis interacts with statutory interpretation.
    • Provides the methodology the Court applies in Cortes: define the legal standard, then test whether the evidence meets that standard.

VI. Complex Concepts Simplified

1. Actual vs. Constructive Possession

  • Actual possession: physically holding or carrying an object (e.g., knife in your hand, gun in your waistband).
  • Constructive possession: you control the place where the object is located, even if it is not on your person (e.g., a knife in your kitchen drawer, a gun in the trunk of your car).

Probationers violate “no possession” conditions through either form. That is why an overbroad definition of “weapons” would be especially harsh: it would ban ordinary objects from their homes, not just from being carried in public.

2. Design‑Based vs. Use‑Based Definitions of “Weapon”

  • Design‑based:
    • Focuses on what the object was made for—its engineering, marketing, or historical purpose.
    • Examples: firearms, switchblades, brass knuckles, combat knives.
    • Key question: Was this item designed or adapted primarily for combat or causing bodily injury?
  • Use‑based:
    • Focuses on how the object is actually used or intended to be used in a particular incident.
    • Examples: using a hammer to assault someone; throwing boiling water on someone.
    • Key question: Did the person use (or intend to use) this object as a weapon, regardless of its ordinary purpose?

Cortes adopts a design‑based definition for the probation condition but allows use‑based reasoning to come in under other conditions (e.g., “obey all laws” for assault or menacing).

3. Fair Warning and Vagueness

“Fair warning” means:

  • A person of ordinary intelligence can understand what is prohibited before acting;
  • Laws (and, here, probation conditions) must be clear enough that people are not left guessing about basic rules of conduct; and
  • Vague rules that leave too much to personal interpretation by officers or judges are suspect because they invite arbitrary enforcement.

In the probation context, the stakes are high: violating conditions can lead to jail or prison, so ambiguity may translate directly into loss of liberty.

4. General vs. Special Conditions of Probation

  • General conditions (ORS 137.540(1)):
    • Apply to all probationers unless specifically deleted by the court.
    • Include: obey all laws; report to officer; permit visits; no possession of weapons, firearms, or dangerous animals, etc.
    • Must be phrased generally enough to fit all cases, but not so vague as to be meaningless or unconstitutional.
  • Special conditions (ORS 137.540(2)):
    • Tailored to the particular case and offender;
    • Imposed only when reasonably related to the crime, public safety, or rehabilitation;
    • Examples: no contact with a specific victim, no drinking for an alcohol‑related offense, or even “no possession of any knives outside the home” if justified.

Cortes primarily interprets a general condition; it leaves room for special conditions where a court can clearly spell out additional restrictions.

5. Constitutional Avoidance

The doctrine of constitutional avoidance is a rule of interpretation: when a statute can reasonably be read in more than one way:

  • Courts should prefer the reading that does not raise serious constitutional problems, so long as that reading is plausible given text, context, and history;
  • Courts do not rewrite the statute, but they resolve ambiguity by choosing the interpretation that best respects both legislative intent and constitutional constraints.

In Cortes, this canon tipped the scales in favor of the more precise, design‑based definition of “weapons” in ORS 137.540(1)(j).

VII. Likely Impact on Future Cases and Probation Practice

1. Immediate implications for Oregon probation law

  • No more “all knives are weapons” policies:
    • Probation offices in Oregon cannot treat “all knives” or “all tools that can cause harm” as per se “weapons” under ORS 137.540(1)(j).
    • Local “weapons notices” must be brought into line with the statutory meaning as interpreted in Cortes.
  • Factual inquiry required for borderline objects:
    • When a probationer is found with an object that could be either a tool or a weapon (certain knives, bats, hammers), courts will need factual evidence of its design and character.
    • Simply labeling something a “knife” will not suffice; judges must determine whether it is primarily a combat instrument or a utility tool.
  • Heightened scrutiny of officer testimony and forms:
    • Statements like “anything that can cause me harm is a weapon” will not pass legal muster.
    • Probation officers may need training on the new standard and on the difference between “weapon” in ORS 137.540(1)(j) and broader lay notions of dangerousness.

2. Effects on houseless and low‑income probationers

Cortes will have particular importance for:

  • Unhoused probationers who must carry work tools, cooking utensils, and personal property with them at all times; and
  • Low‑income probationers who may rely on multi‑use items (e.g., a single knife used both at work and for meals).

The design‑based definition reduces the risk that:

  • Basic survival tools are relabeled as “weapons” simply because they could cause harm; and
  • Houseless individuals are functionally barred from carrying necessary items that housed people can keep safely at home without scrutiny.

3. Litigation about borderline items

The decision is likely to generate litigation about what counts as:

  • “Designed primarily for offensive or defensive combat”; or
  • “Reasonably recognized as having substantially the same character.”

Examples likely to be litigated:

  • Large “tactical” knives sold for self‑defense vs. traditional hunting or fishing knives;
  • Modified tools (e.g., sharpened screwdrivers, taped wrenches);
  • Martial‑arts implements (nunchaku, batons) versus sporting gear (baseball bats).

Courts will have to develop a body of fact‑specific decisions applying the Cortes standard. Expert testimony, product marketing materials, and common usage evidence (e.g., historical research like that in Delgado) may become more important.

4. Influence beyond probation: other supervised release contexts

Although Cortes directly addresses probation, its reasoning is likely to influence:

  • Post‑prison supervision and parole conditions phrased similarly (e.g., “no possession of weapons”);
  • Pretrial release conditions that use the same terminology; and
  • Related debates about vagueness and fair warning in administrative sanctions.

Courts and agencies may proactively revise standard conditions and internal guidance to align with Cortes and avoid constitutional challenge.

5. Potential legislative response

The decision may prompt legislative reconsideration of:

  • Whether to codify a definition of “weapon” for ORS 137.540(1)(j);
  • Whether to adopt a definition similar to federal guidelines (design‑based definition) statewide; or
  • Whether to differentiate between “weapons” in general probation conditions and “weapons” in higher‑security contexts (e.g., public buildings, schools).

Given that the legislature has twice considered, and declined, to redefine “weapon,” any response may be cautious or incremental. But Cortes makes clear that, absent legislative action, courts will enforce a design‑based boundary.

VIII. Conclusion

State v. Cortes marks a significant clarification of Oregon probation law, carefully balancing:

  • The legislature’s legitimate interest in public safety during supervised release;
  • The need for probationers—especially those living on the margins—to have clear, workable standards; and
  • Constitutional commitments to fair notice, equal treatment, and rehabilitation.

By holding that “weapons” under ORS 137.540(1)(j) are objects designed primarily for combat or reasonably recognized as having that character, the Court:

  • Rejects sweeping, officer‑defined prohibitions such as “all knives” or “anything that can cause harm”;
  • Requires individualized factual determinations when an object may be either a tool or a weapon; and
  • Preserves the state’s ability to respond to genuinely dangerous conduct through special conditions and criminal laws, rather than through overbroad possession bans.

The dissent’s contrary view underscores the continuing tension in this area: how much discretion should probation officers and trial judges have to label everyday objects “weapons” based on context and perceived intent? The majority’s answer, grounded in statutory structure and constitutional avoidance, significantly narrows that discretion for general conditions while leaving room for tailored judicial action where justified.

Going forward, Cortes will shape how Oregon courts, probation officers, and defense counsel:

  • Draft, interpret, and challenge probation conditions involving weapons;
  • Evaluate the status of multi‑use objects in violation hearings; and
  • Balance supervision goals with the basic requirement that supervised individuals know, in advance and with reasonable clarity, what conduct may cost them their liberty.

Case Details

Year: 2025
Court: Supreme Court of Oregon

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