Offenses Against Public Order

ORS 166.220
Unlawful use of weapon


(1)

A person commits the crime of unlawful use of a weapon if the person:

(a)

Attempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon as defined in ORS 161.015 (General definitions); or

(b)

Intentionally discharges a firearm, blowgun, bow and arrow, crossbow or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle within the range of the weapon without having legal authority for such discharge.

(2)

This section does not apply to:

(a)

Police officers or military personnel in the lawful performance of their official duties;

(b)

Persons lawfully defending life or property as provided in ORS 161.219 (Limitations on use of deadly physical force in defense of a person);

(c)

Persons discharging firearms, blowguns, bows and arrows, crossbows or explosive devices upon public or private shooting ranges, shooting galleries or other areas designated and built for the purpose of target shooting;

(d)

Persons lawfully engaged in hunting in compliance with rules and regulations adopted by the State Department of Fish and Wildlife; or

(e)

An employee of the United States Department of Agriculture, acting within the scope of employment, discharging a firearm in the course of the lawful taking of wildlife.

(3)

Unlawful use of a weapon is a Class C felony. [Amended by 1975 c.700 §1; 1985 c.543 §1; 1991 c.797 §1; 2009 c.556 §5]

Notes of Decisions

Evidence that defendant carried cocked, holstered pistol, that he told police he would meet force with force and firearms with firearms if police moved into building which he and others were unlawfully occupying, and that gun was later found to be loaded, was sufficient to support finding that defendant carried dangerous weapon with intent to use it. State v. Essig, 31 Or App 639, 571 P2d 170 (1977), Sup Ct review denied

Menacing is not lesser included offense of carrying dangerous weapon within intent to use. State v. Cummings, 33 Or App 265 (1978)

Officer was entitled to search wallet within purse incident to arrest for possession of dangerous weapon with intent to use it unlawfully. State v. Rose, 109 Or App 378, 819 P2d 757 (1991)

Conviction for attempted use of or intent to use dangerous or deadly weapon does not merge with conviction arising out of same conduct for intentional discharge of described weapon within city or residential area or in direction of person, building, structure or vehicle. State v. Crawford, 215 Or App 544, 171 P3d 974 (2007), Sup Ct review denied; State v. Gray, 240 Or App 599, 249 P3d 544 (2011), Sup Ct review denied

Person cannot commit crime of attempt to unlawfully use weapon if person acts with reckless mental state. State v. Harris, 230 Or App 83, 213 P3d 859 (2009)

Where person causes serious physical injury to another with dangerous or deadly weapon, crime of assault in second degree does not merge with crime of unlawful use of weapon. State v. Alvarez, 240 Or App 167, 246 P3d 26 (2010), Sup Ct review denied

Attempt to use unlawfully, or carrying or possession with intent to use unlawfully, dangerous or deadly weapon is not lesser included offense of intentional discharge of described weapons within city or residential area or in direction of person, building, structure or vehicle. State v. Gray, 240 Or App 599, 249 P3d 544 (2011), Sup Ct review denied

Where defendant intended to threaten victim with immediate use of crowbar but did not use physical force, defendant "used" weapon. State v. Ziska, 253 Or App 82, 288 P3d 1012 (2012), aff'd355 Or 799, 334 P3d 964 (2014)

Under this section, "use" refers to employment of weapon to inflict harm or injury and employment of weapon to threaten immediate harm or injury. State v. Ziska/Garza, 355 Or 799, 334 P3d 964 (2014)

This section is divisible statute; thus, where court did not determine which of two offenses, attempt or possession, defendant's conduct constituted for purposes of determining whether defendant committed crime of violence in violation of condition of release, court's revocation of term of supervised release was invalid. United States v. Willis, 795 F3d 986 (9th Cir. 2015)

Where defendant told 9-1-1 dispatcher "I'm sitting here with a shotgun . . . if they don't want to do something, then I'll do it myself . . . ," defendant admitted to holding up shotgun shell to send message to airplane pilot and had "serious thoughts" about shooting at airplane and upon arriving at defendant's residence officers saw shotgun on defendant's porch and pistol holstered to defendant's belt, evidence was sufficient to support conviction under this section. State v. McAuliffe, 276 Or App 259, 366 P3d 1206 (2016), Sup Ct review denied

Chapter 166

Law Review Citations

51 OLR 427-637 (1972); 69 OLR 169 (1990)


Source

Last accessed
Jun. 26, 2021