State v. EggersState v. Eggers
Colm Moore, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ellen Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Sara F. Werboff, Deputy Public Defender, Office of Public Defense Commission, Salem, argued the cause and filed the briefs for respondent on review. Also on the briefs was Ernest G. Lannet, Chief Defender.
JAMES, J.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
* Appeal from Lane County Circuit Court, Charles D. Carlson, Judge. 326 Or App 337, 532 P3d 518 (2023).
Held:
JAMES, J.
The misdemeanor crime of harassment—set out at
This court allowed review. The issue before us is solely one of statutory construction—no party has raised a constitutional challenge. As we will explain, we conclude that the Oregon legislature patterned the “physical force” requirement of
I. BACKGROUND
The facts are undisputed and procedural in nature. The state initially charged defendant by information with fourth-degree assault constituting domestic violence, alleging that he unlawfully and knowingly caused physical injury to his brother. Subsequently, an amended information charged defendant with harassment under
Following the entry of the plea, the trial court asked the parties to state their positions regarding whether the firearms prohibition in
The parties disputed the applicability of the firearms prohibition. Defendant asserted that the prohibitiоn
did not apply because the trial court had not made a finding that defendant posed a threat to his brother:
“[DEFENSE COUNSEL:] *** I believe that this statute requires the [c]ourt to find that this person represents a credible threat to the physical safety of a family or household member. I don‘t believe that that applies in this case at all.
“There is—there are hundreds of miles separating these parties now. This is a very low-level misdemeanor. We resolved it this way because from my perspective, I believe the [s]tate would have proof issues on an [a]ssault [charge] at trial, and I think that it‘s disproportionate to revoke [defendant‘s] gun rights based on this class B misdemeanor.”
In response, the state countered that no such finding was required because harassment was a qualifying misdemeanor:
“[STATE:] *** I do believe the statute applies. He—his brother—regardless how close they are, is a family member, and it seems that this is domestic violence. It certainly is a family member. “This is a qualifying misdemeanor, it includes the use or attempted use of physical force that despite the disputes of fact, this is offensive physical contact which I think qualifies as physical force.”
The trial court ultimately agreed with the state, concluding that the firearms prohibition applied “on its face.” As a result, the trial court entered a judgment prohibiting defendant from knowingly possessing firearms or ammunition under
Defendant appealed and assigned error to thе trial court‘s imposition of the firearm prohibition, contending that the crime of harassment, as defined by
In response, the state asserted that harassment was a qualifying misdemeanor under
States v. Castleman, 572 US 157, 161, 134 S Ct 1405, 188 L Ed 2d 426 (2014), the United States Supreme Court concluded that Congress had intended the force requirement in VAWA to incorporate the “well-settled” common-law meaning of force and that the element of “force” was “satisfied by even the slightest offensive touching.” Becаuse the legislature intended
The Court of Appeals ultimately agreed with defendant, concluding that the “offensive physical contact” element of harassment did not satisfy the requirement that a qualifying misdemeanor have, as an element, the use of “physical force.” Eggers, 326 Or App at 344. The court explained that it reached that conclusion because “the distinction between physical ‘force’ and offensive physical ‘contact’ is clear from the plain meaning of those words, as well as [that court‘s] case law construing those words in other criminal contexts.” Id. Based on those distinctions, the Court of Appeals concluded that “physical force” meant something more than “the ‘incidental physical touching’ that may constitute ‘physical contact.‘” Id. at 346.
In reaching that conclusion, the Court of Appeals rejected the state‘s argument that the legislature had intended to mirror the federal firearms prohibition in such a way as to require the court to adopt the Castleman construction of “force.” The court noted several textual inconsistencies between VAWA and
Court of Appeals agreed with the state that the legislature “borrowed heavily from VAWA in enacting
The state then petitioned for review, which we allowed.
II. ANALYSIS
The issues presented are ones of statutory interpretation. Accordingly, we turn to the familiar analytical framework set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), and modified in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Under that framework, we examine the text and context of
Before this court, defendant argues that it is implausible to conclude that the legislature intended the physical force requirement of
between “physical force” and “offensive physical contact” in the Oregon Criminal Code as relevant context for interpreting
The state, on the other hand, asserts that the legislature intended for harassment to be a qualifying misdemeanor under
As we will explain, the text, context, and legislative history of
A. Text of ORS 166.255
The best evidence of legislative intent is the words enacted into law by the legislature. State v. Hubbell, 371 Or 340, 349, 537 P3d 503 (2023). Accordingly, we begin with the text of
“(1) It is unlawful for a person to knowingly possess a firearm or ammunition if:
“*****
“(b) The person has been convicted of a qualifying misdemeanor[.]
“*****
“(3) As used in this section:
“*****
“(e) ‘Qualifying misdemeanor’ means a misdemeanor that has, as an element of the offense, the use or attempted use of physical force[.]”
“Physical force” is not defined in the firearm prohibition statute, nor is it defined in ORS chapter 166. When the legislature has not defined a particular term, we generally “assume that the legislature intended to give words of common usage their ‘plain, natural, and ordinary meaning.‘” State v Clemente-Perez, 357 Or 745, 756, 359 P3d 232 (2015) (quoting PGE, 317 Or at 611); see also Providencе Health Sys. Oregon v. Brown, 372 Or 225, 231, 548 P3d 817 (2024) (“If the term is one of common usage, we generally presume that the legislature intended the ordinary meaning of the term, and we often consult contemporaneous dictionaries to determine that ordinary meaning.“). We often turn to dictionaries as a starting point in our analysis because they provide a range of possible meanings that a given word could reasonably have. See State v. Cloutier, 351 Or 68, 96, 261 P3d 1234 (2011) (stating that dictionaries “do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which they are used” (emphasis in original)).
Webster‘s Third New Int‘l Dictionary (unabridged ed 2002) defines “force” as
“1 a : strength or energy esp. of an exceptional degree : active power : vigor *** c : power to affect in physical relations or conditions <the ~ of the blow was somewhat spent when it reached him> <the rising ~ of the wind> *** 3 a : power, violence, compulsion, or constraint
exerted upon or against a person or thing *** b : strength or power of any degree that is exercised without justification or contrary to law upon a person or thing c : violence or such threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or death[.]”
Id. at 887. Those definitions cover a wide range of conduct: while some definitions of “force” speak to a “violent” or “exceptional” degree of strength, others define the term as “strength or power of any degree that is exercised without justification or contrary to law upon a person or thing.” Id. (emphasis added).
The other words of the statute do not clarify which of those definitions the legislature intended to adopt. Although “force” is modified by the adjective “physical,” we have previously explained that the term “physical” indicates only that the force must be bodily or material. State v. Marshall, 350 Or 208, 219 n 10, 253 P3d 1017 (2011) (explaining that in determining the meaning of “physical force” in the sexual abuse statute, “‘physical’ force is simply bodily or material (as opposed to mental or moral) force“). Accordingly, based on the plain text of
B. Context and Legislative History of ORS 166.255
Having determined that the ordinary meaning of “physical force” does not unambiguously exclude the “offensive physical contact” element of harassment, we turn to context to help determine what the legislature intended the term to capture. Context for a statute can include
“essentially anything of which the legislature could have been aware at the time of a given enactment.” State v. Azar, 372 Or 163, 175, 547 P3d 788 (2024) (quoting Jack L. Landau, Oregon Statutory Construction, 97 Or L Rev 583, 638 (2019)). This includes “other provisions of the same statute and other related statutes.” PGE, 317 Or at 611. It can include previously enacted versions of the same statute, or other related statutes, showing how an area of legislation “developed over the years.” Lindell v. Kalugin, 353 Or 338, 350, 297 P3d 1266 (2013). “Existing case law” also “forms a part of a statute‘s context.” A.G. v. Guitron, 351 Or 465, 471, 268 P3d 589 (2011). In this case, the parties have identified different statutes as relevant context for the meaning of “physical force” in
For defendant, the rеlevant context is the general structure of the Oregon Criminal Code and the case law interpreting it. Specifically, defendant points to the fact that the “drafters of the criminal code placed the crime of harassment in the chapter concerning public-order offenses, distinguishing it from the spectrum of assaults and likening it to disorderly conduct.” See Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report §§ 92 to 94 (July 1970) (“Mere physical contact which does not produce bodily injury is not covered by the assault article. Trivial slaps, shoves, kicks, etc., are covered by the lesser offense of harassment.“). Defendant further notes that case law construing physical force also supports his interpretation, as Oregon courts “routinely have distinguished force crimes from those involving mere contact.”
Based on those differences, defendant urges us to apply the canon of consistent usage to conclude that the offensive physical contact element of harassment cannot constitute physical force under
treatment of “physical force” and “offensive physical contact” requires us to conclude that harassment is not a qualifying misdemeanоr for purposes of
The state, on the other hand, argues that the most relevant statutory context is the VAWA firearms prohibition set out in
Defendant raises legitimate points regarding the differences between the general treatment of “force” and “contact” in the Criminal Code. However, the canon of consistent usage applies only when there is no evidence that the legislature intended to adopt a different, or statutorily contextual, meaning. Here, as we explain, there is evidence that the legislature intended to adopt a different meaning—namely, the meaning from VAWA. As a result, the VAWA prohibition provides the most persuasive context for interpreting
In 1996, Congress amended the federal Gun Control Act of 1968 to prohibit firearms possession by persons who had been convicted of a misdemeanor crime of domestic
violence. That prohibition—which we refer to as the VAWA firearms prohibition—is set out in
“(i) is a misdemeanor under Federal, State, or Tribal law; and
“(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”
(Emphasis added.)
In comparison, the Oregon legislature enacted
“(1) It is unlawful for a person to knowingly possess a firearm or ammunition if: “*****
“(b) The person has been convicted of a qualifying misdemeanor and, at the time of the offense, the person was a family member of the victim of the offense.
“*****
“(3) As used in this section:
“*****
“(c) ‘Family member’ means, with respect to the victim, the victim‘s spouse, the victim‘s former spouse, a person with whom the victim shares a child in common, the victim‘s parent or guardian, a person cohabiting with or who has cohabited with the victim as a spouse, parent or guardian or a person similarly situated to a spouse, parent, or guardian of the victim.
“*****
“(e) ‘Qualifying misdemeanor’ means a misdemeanor that has, as an element of the offense, the use or attempted use of physical force or the threatened use of a deadly weapon.”
Textually, the two laws generally mirror each other. Both statutes prohibit firearm possession for individuals convicted of misdemeanor offenses that have, “as an element” the “use or attempted use of physical fоrce or the threatened use of a deadly weapon.” Compare
Although the other provisions of the VAWA prohibition and SB 525 are not at issue in this case, they provide additional contextual support for the conclusion that the legislature intended to parallel federal law. Both laws made it unlawful to possess a firearm or ammunition if subject to a restraining order issued by a сourt after notice, a hearing, and an opportunity to be heard that includes a finding of a “credible threat” to the physical safety of an intimate partner or child. Compare
§ 2(1)(a).11 Both laws use the term “intimate partner” and define the term to largely cover the same individuals. The one difference between the two definitions is that SB 525 covers a broader range of people by providing that “a person in a relationship akin to a spouse” also qualifies as an “intimate partner.” Compare
As for other differences between the statutes, the Court of Appeals noted that
against one of the persons identified in the statutes. The enumerated victims are the same under both laws because SB 525‘s definition of “family member” identifies the same persons as
The legislative history further confirms that, in enacting SB 525, the legislature intended to mirror the federal firearm prohibition. At SB 525‘s initial public hearing, several witnesses testified about the need to provide state and local law enforcement with the ability to prevent possession of firearms by domestic violence offenders. See, e.g., Testimony, Senate Committee on Judiciary, SB 525, Mar 25, 2015, Ex 4 (statement of Sen Laurie Monnes Anderson). That testimony consistently cited the lethal link between firearms and domestic violence, noted that federal law has prohibited possession of firearms by domestic violence offenders since the mid-1990s, and identified barriers to enforcing the federal prohibition in Oregon. See, e.g., Testimony, Senate Committee on Judiciary, SB 525, Mar 25, 2015, Ex 5 (statement of Sybil Hebb, Oregon Law Center). Thus, from the start, the undisputed goal of SB 525 was to give local law enforcement agencies and district attorneys the tools to protect victims from lethal domestic violence under state law in the same way as federal law. Testimony, Senate Committee on Judiciary, SB 525, Mar 25, 2015, Ex 7 (statement of Oregon DOJ Domestic Violence Resource Prosecutor Erin Greenawald). The final bill was the product of compromise and intended to conform the Oregon standard to the federal one. Testimony, House Committee on the Judiciary, SB 525, June 1, 2015, Ex 2 (statement of Sen Laurie Monnes Anderson) and Ex 3 (statement of Sybil Hebb, Oregon Law Center).
Because we conclude that both context and legislative history show that the legislature intended to import the federal firearms prohibition into Oregon law, we turn to the borrowed-statute rule. Before applying thаt principle, we write briefly to address an aspect of the Court of Appeals’ reasoning.
The Court of Appeals observed that, because the legislature did not “enact an identical copy” of the federal law, there was no reason to treat caselaw construing the VAWA prohibition as persuasive. Eggers, 326 Or App at 349. That statement is too categorical. The borrowed-statute rule does not require a verbatim adoption of the lending jurisdiction‘s statutory text for it to be persuasive context. See, e.g., State v. Walker, 356 Or 4, 23 n 9, 333 P3d 316 (2014) (relying on federal court interpretations of the federal RICO statute, upon which Oregon‘s RICO statute was modeled, to construe Oregon‘s RICO statute even though the Oregon provision had been “modified somewhat“).
In considering the applicability of the borrowed-statutе rule, the similarity of the two statutes represents a continuum. At one end, when the two statutes are virtually identical, the borrowed-statute rule is likely to carry the most persuasive weight. At the other end of the continuum, when the legislature borrows a statute but then substantially changes its structure or terminology, the borrowed-statute rule may give way to the competing interpretive principle that changes in wording are presumed to be meaningful, reflecting a different policy choice. However, a reviewing court must be mindful that not every change to a borrowed statute necessarily reflects a policy choice—some linguistic and structural changes can be an expected product of the legislative drafting process,
In 2014—one year prior to the enactment of
572 US at 157. After dеtailing the role that firearms play in domestic violence deaths, the Court explained that Congress enacted the firearms prohibition to “‘close a dangerous loophole’ in the gun control laws.” Id. at 161 (citation omitted). It went on to determine that Congress “incorporated the common-law meaning of ‘force‘—namely, offensive touching—in
The Court explained that, because domestic violence offenders are routinely prosecuted under “generally applicable assault or battery laws,” it “makes sense for Congress to have classified as a ‘misdemeanor crime of domestic violence’ the type of conduct that supports a common-law battery conviction.” Id. at 164. The Court also noted that, although “[m]inor uses of force may not constitute ‘violence’ in the generic sense,” such force can be described as “domestic violence,” when “the accumulation of such acts over time can subject one intimate partner to the other‘s control.” Id. at 165-66. According to the Court, domestic violence “is not merely a type of ‘violence‘; it is a term of art encompassing acts that one might not characterize as ‘violent’ in a nondomestic context.” Id. at 165. “If a seemingly minor act like [the squeeze of the arm that causes a bruise] draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a ‘misdemeanor crime of domestic violence.‘” Id. at 166. Thus, the Court held that the requirement of “physical force” in the definition of misdemeanor crime of domestic violence “is satisfied *** by the degree of force that supports a common-law battery conviction“—i.e., offensive touching.” Id. at 168.
That common-law definition of battery is the same in Oregon. See, e.g., Cook v. Kinzua Pine Mills Co. et al., 207
Or 34, 48-49, 293 P2d 717 (1956) (“An offensive unpermitted touch may be a battery though no physical damage results.“). It is “sufficient if the contact is offensive or insulting.” Bakker v. Baza‘r, Inc., 275 Or 245, 249, 551 P2d 1269 (1976).
Defendant argues that we should not apply the borrowed-statute rule because there is no direct support for the conclusion that the legislature discussed or was aware of the Castleman decision. But we do not require an explicit mention of controlling caselaw in determining that the borrowed-statute rule applies. Instead “when the Oregon legislature borrows wording from a statute originating in another jurisdiction, there is a presumption that the legislature borrowed controlling case law interpreting the statute along with it.” CBI Servs., Inc., 356 Or at 593 (quoting Lindell, 353 Or at 355); see
Here, the Oregon Legislature unambiguously intended to import the VAWA prohibition into Oregon law; as such, under the borrowed-statute rule, we presume that the Castleman construction of “physical force” in VAWA was understood and relied upon by the legislаture in its enactment of
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
Notes
“(8) who is subject to a court order that—”
“(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;“(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimаte partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
“(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
“(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.”
“(1) It is unlawful for a person to knowingly possess a firearm or ammunition if:
“(a) The person is the subject of a court order that:
“(A) Was issued or continued after a hearing for which the person had actual notice and during the course of which the person had an opportunity to be heard;
“(B) Restrains the person from stalking, intimidating, molesting or menacing an intimate partner, a child of an intimate partner or a child of the person; and
“(C) Includes a finding that the person represents a credible threat to the physical safety of an intimate partner, a child of an intimate partner or a child of the person.”