Hertz v. Clackamas County Sheriff's Office

Under ORS 166.274, a petitioner seeking relief from a felony firearm restriction requires clear and convincing evidence that they no longer pose a safety risk, taking into account the original offense and their post conviction conduct, not just the amount of time since the offense.

Petitioner contends that the trial court erred in denying him relief from a prohibition on possessing or purchasing firearms due to his prior felony conviction. ORS 166.274. At the trial court level, Petitioner argued that sufficient time had passed since his conviction in 1985 when he was 17 years old and brought multiple character witnesses to testify on his behalf. On appeal, Petitioner argued he had established the “clear and convincing evidence” necessary to prove he no longer posed a threat to the safety of the public or to himself. The Oregon Court of Appeals affirmed the trial court’s decision, stating that the standard set in the statute is not limited to the passage of time because it also looks at the initial offense and what has been done since to prove that such conduct will not occur again. Here, the court stated the petitioner failed to show he was not at risk of recommitting the initial crime of sexual abuse because although he had character references, their testimony did not indicate the petitioner showed any remorse for his felony or that he had made retributive acts that indicated an overall change in behavior. The Oregon Court of Appeals affirmed the trial court’s decision.