State v. Leake

“Firearms carried openly in belt holsters are not concealed within the meaning of [statute for unlawful possession of a firearm].” ORS 166.250(3). However, holsters that are concealed by clothing can be considered concealed weapons.

Defendant appeals his conviction for unlawful possession of a firearm. During a traffic stop, defendant stepped out of his car and lifted up his sweatshirt, revealing a holstered firearm. Defendant did not have a concealed weapons permit. Defendant assigned error to the trial court’s denial of his motion for judgment of acquittal. On appeal, defendant argued that although the holstered firearm was partially obscured by his clothing because the weapon was secured in a belt holster, it was not concealed because it was “carried openly” in the holster. “Firearms carried openly in belt holsters are not concealed within the meaning of [statute for unlawful possession of a firearm].” ORS 166.250(3). In looking at case law and historical context, the Court determined that the overall intent of the statute was to provide the public with notice that someone is carrying a weapon. The Court found that the statute is satisfied if a firearm secured in a belt holster “…gives reasonable notice of the firearm’s presence to a person exercising ordinary scrutiny when coming into contact with the person carrying the firearm even if the firearm is obscured by the holster.” State v. Leake, 325 Ore. App. 1 (2023). The Court held that a reasonable juror could find that the defendant did not give reasonable notice of the gun, because the holster itself was obscured by defendant’s clothing and the firearm was not recognizable as such until he lifted his clothing. Affirmed.