CITY OF PORTLAND v. LODI

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Docket Number

DA 360332, 363890; CA A47872 (Control), A48372 (Cases Consolidated)

Attorney(S)

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem. Garrett Richardson, Portland, argued the cause and filed the brief for respondents.

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Smart Summary

Factual and Procedural Background

This consolidated appeal arises from pretrial judgments in two cases where the City of Portland charged defendants Lodi and Wroten with carrying concealed weapons under City of Portland Code § 14.32.100 for carrying pocket knives with blades longer than three and one-half inches. The trial courts dismissed the complaints following defendants' demurrers. The City of Portland appeals from these dismissals.

Legal Issues Presented

Whether the City of Portland ordinance prohibiting carrying concealed knives with blades longer than three and one-half inches is in conflict with, and thereby preempted by, the state statute ORS 166.240 governing carrying of concealed weapons.
If not preempted, whether the city ordinance violates the right to bear arms protected by Article I, section 27, of the Oregon Constitution.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
City of Portland v. Dollarhide, 300 Or. 490, 714 P.2d 220 (1986)	Established that city ordinances cannot conflict with state criminal statutes and must virtually duplicate state law elements when punishing the same conduct.	The court applied this principle to determine whether the city ordinance conflicted with state law and found incompatibility due to differences in regulation of concealed knives.
Winters v. Bisaillon, 152 Or. 578, 54 P.2d 1169 (1936)	Supported the principle that local ordinances cannot permit acts prohibited by state statutes or prohibit acts permitted by state law.	Reinforced the framework for analyzing ordinance preemption by state law in this case.
State v. Harris, 40 Or. App. 317, 594 P.2d 1318 (1979)	Held that the term "ordinary" in the pocketknife exception was too vague and effectively removed it, simplifying the pocketknife exception.	Provided background on statutory amendments relevant to the ordinance’s compatibility with state law.
State v. Delgado, 298 Or. 395, 692 P.2d 610 (1984)	Recognized the constitutional right to possess pocketknives and classified switchblades as a type of pocketknife; confirmed legislative authority to regulate dangerous arms.	Informed the court’s understanding of constitutional protections and legislative changes affecting knife regulation.
State v. Pruett, 37 Or. App. 183, 586 P.2d 800 (1978)	Confirmed legislature’s ability to clearly define prohibitions against knives designed for unlawful use.	Supported the distinction between dangerous weapons and benign pocketknives relevant to the ordinance’s scope.
State v. Tucker, 28 Or. App. 29, 558 P.2d 1244 (1977)	Further clarified the classification and regulation of knives under state law.	Used to contextualize the statutory framework governing concealed weapons.
State v. Blocker, 291 Or. 255, 630 P.2d 824 (1981)	Recognized the policy of preserving the constitutional right to bear arms while regulating weapon possession.	Reinforced the court’s approach to balancing constitutional rights with public safety in weapon regulation.
State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980)	Supported the principle that weapon regulation aims to preserve the right to bear arms to the greatest extent possible.	Used to frame the constitutional considerations in the court’s analysis.

Court's Reasoning and Analysis

The court began its analysis by outlining the well-established principle that cities under home rule may enact ordinances punishing the same conduct as state criminal laws, provided there is no conflict or incompatibility. The compatibility test requires that city ordinances must not prohibit acts permitted by state law or permit acts prohibited by state law, effectively requiring city law to virtually duplicate state law elements when regulating the same conduct.

The City of Portland ordinance, effective since 1974, initially closely mirrored state statutes regulating concealed weapons, including exceptions for pocketknives with blades not exceeding three and one-half inches. However, subsequent amendments to the state statutes, particularly ORS 166.240, removed the pocketknife exemption and narrowed the scope of prohibited weapons, reflecting constitutional considerations identified in appellate decisions.

The court noted that the Portland ordinance, as it currently stands, prohibits carrying concealed knives with blades longer than three and one-half inches, an act that the amended state statute permits. This discrepancy renders the ordinance incompatible and preempted by state law. Because the court’s decision rested on the preemption issue, it declined to address the constitutional question regarding the right to bear arms under the Oregon Constitution.

Holding and Implications

The court affirmed the trial courts' dismissal of the complaints against defendants Lodi and Wroten.

The direct effect of this decision is that the City of Portland ordinance prohibiting carrying concealed knives with blades longer than three and one-half inches is preempted by state law and therefore unenforceable as it stands. The court did not establish new precedent beyond affirming the application of existing preemption principles, nor did it address constitutional issues related to the right to bear arms.

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CITY OF PORTLAND, Appellant, v. LODI, Respondent. CITY OF PORTLAND, Appellant,

RIGGS, J.

Affirmed.

RIGGS, J.

This is a consolidated appeal by the City of Portland from pretrial judgments dismissing complaints in two cases. We affirm.

The city alleged that defendants Lodi and Wroten were carrying pocket knives with blades longer than three and one-half inches and charged them with carrying concealed weapons in violation of City of Portland Code § 14.32.100. Defendants demurred, and the trial courts dismissed the complaints. The questions presented are whether the city ordinance is in conflict with the state statute that prohibits the carrying of concealed weapons, ORS 166.240, and is thereby preempted and, if not, whether the city ordinance is in violation of the right to bear arms protected by Article I, section 27, of the Oregon Constitution.

Section 14.32.100 provides:

"(a) It is unlawful for any person, not authorized by law, to carry any dangerous or deadly weapon in a concealed manner.

"(b) As used in this Chapter, `dangerous or deadly weapon' includes a firearm, metal knuckles, straight razor, weapon of the type commonly known as nunchaku, black jack, sap, or sap glove, and any type of knife other than an ordinary pocketknife with a blade not longer than three and 3-1/2 inches. When carried with intent to use the same unlawfully against another, `dangerous or deadly weapon' also includes any instrument or device capable of inflicting injury to the person or property of another."

ORS 166.240 (1) provides:

"(1) Except as provided in ORS 166.260, 166.290 and subsection (2) of this section, any person who carries concealed upon the person 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 upon the person or property of any other person, commits a Class B misdemeanor."

The law on preemption of city ordinances by state criminal law is well established. Cities are empowered under home rule to enact ordinances that punish the same conduct that is punished by state criminal law. City of Portland v. Dollarhide, 300 Or. 490, 498-99, 714 P.2d 220 (1986). The limitation on their power is that ordinances cannot conflict or be incompatible with state statutes. The analysis of compatibility begins with the assumption that state criminal law displaces conflicting local ordinances that prohibit and punish the same conduct, if there is no discernible legislative intent to the contrary. A city ordinance can punish the same conduct as a state statute, but it cannot prohibit an act that the statute permits or permit an act which the statute prohibits. City of Portland v. Dollarhide, supra, 300 Or at 501-502; Winters v. Bisaillon, 152 Or. 578, 54 P.2d 1169 (1936). "[I]n order that the defining elements of a city's crime not conflict with state law, they must virtually `duplicate' the state law elements." City of Portland v. Dollarhide, supra, 300 Or at 501-02.

The city ordinance became effective on November 7, 1974. It substantially duplicated the state statutes that regulated the carrying of concealed weapons, primarily former ORS 166.240, which provided an exception for pocketknives, and the blade length provision in former ORS 166.220 that any knife with a blade longer than three and one-half inches was a dangerous weapon when carried concealed with the intent to use unlawfully against another person. The statutes were amended in 1975, 1977 and 1985. The subsection of ORS 166.220 on blade length was deleted. ORS 166.240 was amended so that it gave a detailed definition of a "switchblade knife" and deleted the pocketknife exemption.

We need not address the question of whether the ordinance was compatible with the state statutes when it was enacted in 1974.

The amendments, in particular the changes to ORS 166.240, were made partly in response to appellate court opinions that found some of the phrases in the statutes unconstitutional. We held in State v. Harris, 40 Or. App. 317, 594 P.2d 1318 (1979), that the word "ordinary" was too vague, and effectively deleted it from the statute, leaving a simple "pocketknife" exception. Then, the Supreme Court held in State v. Delgado, 298 Or. 395, 692 P.2d 610 (1984) that the right to possess pocketknives is protected under the state constitution and that a switchblade knife is a type of pocketknife. The court noted that the legislature could regulate the possession and use of constitutionally protected arms, particularly those that it had recognized as especially dangerous, such as switchblades. See State v. Ramer, 65 Or. App. 480, 671 P.2d 723 (1983). After Delgado, the legislature removed the broad "pocketknife" exception from the statute and left only the list of knives and other weapons identified to be those that "are designed and intended primarily as weapons to inflict bodily injury or death." See State v. Pruett, 37 Or. App. 183, 188, 586 P.2d 800 (1978); see also State v. Tucker, 28 Or. App. 29, 33, 558 P.2d 1244, rev den 277 Or. 491 (1977).

Knives and weapons that are not prohibited by ORS 166.240 may be covered by ORS 166.220, which prohibits the carrying of a dangerous or deadly weapon with the intent to use it unlawfully against another or attempting to use it unlawfully. See generally, State v. Delgado, supra, 298 Or at 400. Firearms were moved from ORS 166.220 and ORS 166.240 to a subsection of ORS 166.250 dealing solely with unlawful possession of firearms.

In a special concurrence, Judge Joseph stated in State v. Pruett: "The legislature is capable of clearly stating the scope of a prohibition against knives whose design creates unreasonable chances of unlawful use." 37 Or App at 188. In contrast to those weapons are items such as pocketknives that are normally carried for benign purposes. State v. Pruett, supra, 37 Or App at 187-88. Oregon appellate courts have consistently recognized that the policy behind the regulation of the possession of weapons has been to preserve, to the greatest extent possible, the constitutional right to bear arms. State v. Delgado, supra; State v. Blocker, 291 Or. 255, 630 P.2d 824 (1981); State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980); State v. Harris, supra; State v. Pruett, supra; State v. Tucker, supra.

The city conceded at oral argument that as the ordinance stands, a picnicker in a Portland park would be violating the ordinance if he had a closed basket of food and it contained a table knife that had a three and one-half inch blade.

ORS 166.240 only prohibits carrying concealed certain types of knives. The statutory policy has been to preserve broadly the right to bear arms, while narrowly limiting the right to carry knives. Thus the Portland ordinance prohibits an act that the statute permits, the carrying of any concealed knife whose blade is longer than three and one-half inches. The ordinance and the statute are not compatible; the ordinance is preempted.

Because we base our decision on the preemption issue, we need not address the constitutionality of the ordinance.