686 October 18, 2023 No. 551

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

Dorton Nicholas NEWMAN,

Petitioner-Appellant,

v.

MARION COUNTY SHERIFF’S OFFICE,

Respondent-Respondent.

Marion County Circuit Court

21CV39064; A177996

Courtland Geyer, Judge.

Argued and submitted March 1, 2023.

Shawn A. Kollie argued the cause for appellant. Also on 

the brief was Kollie Law, PC.

Cody W. Walterman argued the cause and filed the brief 

for respondent.

Before Shorr, Presiding Judge, and Pagán, Judge, and 

DeVore, Senior Judge.

PAGÁN, J.

Reversed and remanded for entry of judgment granting 

petition.
Cite as 328 Or App 686 (2023) 687

PAGÁN, J.

Over thirty years ago, appellant was convicted of 

bank robbery under 18 USC section 2113. Appellant completed his sentence, and he has not been convicted of any 

other crime since. As a result of that federal felony conviction, appellant is barred from possessing a firearm under 

state and federal statutes, including ORS 166.250(1)(c)(C) 

and 18 USC section 922(g)(1). Appellant petitioned for relief 

from the state statutory bar under ORS 166.274. Relying on 

Beecham v. United States, 511 US 368, 114 S Ct 1669, 128 

L Ed 2d 383 (1994), the trial court determined that it lacked 

authority to grant the petition because appellant was convicted of a federal felony.

We disagree that the trial court lacked authority 

to do so. If the trial court had granted the requested relief 

under ORS 166.274, then it would have restored appellant’s 

right to possess a firearm under state law, but not under federal law. We are thus not persuaded by the argument of the 

Marion County Sheriff’s Office (sheriff) that ORS 166.274 

is preempted by federal law. The sheriff does not identify 

how granting the petition would interfere with federal 

enforcement of section 922(g)(1) or frustrate the purpose of 

the federal statute, which remains enforceable regardless of 

whether appellant is granted relief from the bar on possessing a firearm under state law. Therefore, we conclude that 

the trial court erred as a matter of law. In addition, we find 

that appellant met his burden of showing that he is entitled 

to relief from the state law bar on possessing a firearm. We 

reverse and remand for the trial court to enter a judgment 

granting the petition.

Before turning to the facts, we describe some of the 

relevant statutory background. In Oregon, a person commits the misdemeanor offense of unlawful possession of a 

firearm if the person “[p]ossesses a firearm” and “[h]as been 

convicted of a felony.” ORS 166.250(1)(c)(C). Chapter 166 

does not define the term “felony,” or limit it to persons who 

commit felonies under state law. See ORS 166.210 (defining 

key terms). ORS 166.274(1) provides, in relevant part, that,
688 Newman v. Marion County Sheriff’s Office

“a person barred from possessing or receiving a firearm 

may file a petition for relief from the bar in accordance with 

subsection (2) of this section if:

“(a) The person is barred from possessing a firearm 

under ORS 166.250(1)(c)(A), (C) or (H) or 166.270[.]”1

The petition for relief “must be filed in the circuit court in 

the petitioner’s county of residence.” ORS 166.274(2). “If the 

petitioner seeks relief from the bar on possessing or purchasing a firearm, relief shall be granted when the petitioner demonstrates, by clear and convincing evidence, that 

the petitioner does not pose a threat to the safety of the public or the petitioner.” ORS 166.274(7).

The federal statute at issue, 18 USC section 922(g), 

provides, in relevant part:

“It shall be unlawful for any person—

“(1) who has been convicted in any court of, a crime 

punishable by imprisonment for a term exceeding one year;

“** * * *

“to ship or transport in interstate or foreign commerce, 

or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which 

has been shipped or transported in interstate or foreign 

commerce.”

However, 18 USC section 921(a)(20) provides an exemption: 

the term “‘crime punishable by imprisonment for a term 

exceeding one year’” does not include any conviction “for 

which a person *** has had civil rights restored * **.”

FACTS

With that statutory background in mind, we turn to 

our standard of review and the facts. Our review is de novo. 

ORS 166.274(10)(a). “Given that standard of review, we independently assess and evaluate the evidence and reweigh 

the facts and reassess the persuasive force of the evidence.” 

1 ORS 166.250(1)(c)(A) bars a person under 18 years of age from possessing 

a firearm. ORS 166.250(1)(c)(H) bars the possession of a firearm by a person prohibited under ORS 166.255, which includes persons restrained from stalking or 

intimidating others. Under ORS 166.250(1)(c)(C), it is a misdemeanor for a felon 

to possess a firearm, and, under ORS 166.270, it is a felony for a felon to possess 

a firearm. For a discussion of the relationship between ORS 166.250(1) and ORS 

166.270, see State v. Burris, 370 Or 339, 518 P3d 891 (2022).
Cite as 328 Or App 686 (2023) 689

Bentley v. Multnomah County Sheriff’s Office, 297 Or App 

609, 610, 443 P3d 743 (2019) (internal quotation marks 

omitted).

Here, the relevant facts are primarily procedural. 

In September 2021, appellant petitioned for “Relief from the 

Prohibition Against Purchasing and Possessing Firearms 

pursuant to ORS 166.274.” He argued that that right was 

revoked when he was convicted of bank robbery in 1993.2

Appellant submitted an affidavit in support of his petition 

explaining that his conviction did not involve the use of a 

firearm or a deadly weapon, and he has been “conviction free 

for over 29 years.” Appellant described his family, his history 

of employment as a mediator, and his volunteer activities in 

his community. Appellant averred that he seeks relief from 

the bar on possessing a firearm so that he can go hunting 

with his brother and teach hunting skills to his children. In 

support of his petition, appellant submitted letters from his 

brother, his wife, his sister-in-law, and a family friend.

In opposition to the petition, the sheriff did not 

contest that evidence or offer any additional evidence. 

Instead, the sheriff made a purely legal argument. Relying 

on Beecham, 511 US at 370, the sheriff argued that the 

trial court had no authority to provide the requested relief 

because “a state restoration of civil rights cannot undo 

the federal disabilities imposed on an individual under 

the Federal Firearms statute resulting from the individual’s federal conviction.” (Footnote omitted.) At the hearing, 

appellant acknowledged that ORS 166.274 “does not grant 

*** protection under federal law from prosecution.”

The trial court agreed with the sheriff. In its general judgment, the trial court stated that “there is clear and 

convincing evidence that if this Court had the authority to 

grant Petitioner’s requested relief, Petitioner does not pose a 

threat to the safety of himself or the public.” However, based 

on Beecham, 511 US at 370, the trial court concluded that 

it “lacks the lawful authority to grant the requested relief.” 

Appellant now challenges the trial court’s judgment denying his petition.

2 Appellant was the driver for the robbery. He pleaded guilty in federal court 

in 1992, he was sentenced in 1993, and he was released from custody in 1995.
690 Newman v. Marion County Sheriff’s Office

ANALYSIS

On appeal, the sheriff argues that granting appellant the relief sought under ORS 166.274 “would create 

conflict between existing state and federal law.” More specifically, the sheriff argues that granting the relief sought 

would conflict with 18 USC sections 927 and 922(g).

Both the trial court and the sheriff relied on 

Beecham, a case in which the United States Supreme Court 

determined that the restoration of civil rights under state 

law could not undo the federal disabilities imposed by section 922(g). 511 US at 369-74. Instead, the exemption in section 921(a)(20) applies when a person convicted of a federal 

crime has “had their civil rights restored under federal law.” 

Id. at 374. A person prohibited from possessing firearms 

“may make an application to the Attorney General for relief 

from the disabilities imposed by Federal laws[.]” 18 USC 

§ 925(c).3

 Notably, Beecham did not hold that the underlying state court orders restoring civil rights were themselves 

preempted by federal law or unauthorized; rather, the opinion was limited to the effect of those orders on federal convictions in federal court. See Beecham, 511 US at 370 (“The 

question presented to the District Courts was whether these 

restorations of civil rights by States could remove the disabilities imposed as a result of Beecham’s and Jones’ federal

convictions.” (Emphases in original.)).

As we understand his petition, appellant was not 

requesting the trial court to restore his firearm rights under 

federal law. Instead, he sought and seeks relief from the bar 

on possessing a firearm imposed by ORS 166.250(1)(c)(C).4

3 The Attorney General delegated its power to act on section 925(c) applications to the Bureau of Alcohol, Tobacco, and Firearms (ATF), and, since 1992, 

Congress has prohibited the federal funds appropriated annually for ATF from 

being used to act upon such applications. Black v. Snow, 272 F Supp 2d 21, 23-24 

(D DC 2003), aff’d sub nom, Black v. Ashcroft, 110 F Appx 130 (DC Cir 2004). 

Whether and how appellant’s right to possess a firearm could be restored under 

federal law is not addressed in any detail by the parties and that question is 

beyond the scope of this opinion.

4 Only the misdemeanor offense of being a felon in possession of a firearm 

under ORS 166.250(1)(c)(C) is at issue. The record indicates that appellant is 

no longer barred from possessing a firearm under ORS 166.270 because subsection (1) of that statute does not apply to any person described in subsection (4). 

Subsection (4) applies based on the nature of appellant’s crime and because he 

was discharged over 15 years ago.
Cite as 328 Or App 686 (2023) 691

The Court’s holding in Beecham did not operate to deprive the 

trial court here of authority to grant the petition. Beecham

holds that a state court cannot restore federal rights, but it 

does not address a state court’s ability or authority to restore 

firearm rights under state law.

In arguing otherwise, the sheriff suggests that the 

trial court has no authority to grant the petition because 

ORS 166.274 conflicts with 18 USC sections 927 and 922(g). 

Although the sheriff’s appellate brief does not develop that 

argument in any detail, we understand it to be a preemption 

argument.5

 In Willis v. Winters, 350 Or 299, 302, 253 P3d 

1058 (2011), the Oregon Supreme Court addressed a similar preemption argument, holding that “the Federal Gun 

Control Act does not preempt the state’s concealed handgun 

licensing statute.” (Emphasis in original.) Guided by our 

Supreme Court’s analysis in Willis, we conclude that the 

federal Gun Control Act does not preempt ORS 166.274.6

Therefore, we reject the sheriff’s argument that the trial 

court has no authority to grant the petition.

The power of Congress to preempt state law arises 

from the Supremacy Clause of Article VI of the United States 

Constitution, which provides that the laws of the United 

States are “the supreme law of the land,” and that the state 

courts “shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” 

As explained in Willis, there are three circumstances that 

result in the preemption of state law by federal law: “(1) when 

the federal law expressly provides for preemption; (2) when 

a congressional statutory scheme so completely occupies the 

field with respect to some subject matter that an intent to 

exclude the states from legislating in that subject area is 

implied; and (3) when an intent to preempt is implied from 

an actual conflict between state and federal law.” 350 Or at 

308. Here, the federal Gun Control Act states:

5 The only contested issue argued below was whether the trial court had 

authority to grant relief under ORS 166.274 based on a federal felony. Although 

that argument was not developed in detail, it was sufficient to preserve the issue 

of whether ORS 166.274 is preempted by federal law.

6 For ease of reference, we refer to the Gun Control Act of 1968, Pub L 90-618, 

82 Stat 1213 (1968), and any amendments thereto, as the “federal Gun Control 

Act.”
692 Newman v. Marion County Sheriff’s Office

“No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field 

in which such provision operates to the exclusion of the law 

of any State on the same subject matter, unless there is 

a direct and positive conflict between such provision and 

the law of the State so that the two cannot be reconciled or 

consistently stand together.”

18 USC § 927. As a result, only the third type of preemption—preemption implied from an actual conflict—is at 

issue in the present case. Willis, 350 Or at 308. Under that 

test, we consider whether there is a direct conflict between 

the state and federal law, and whether the state law stands 

as an obstacle to the accomplishment of Congress’s objectives. Id. at 309-11.

Like in Willis, we first note that “there is no direct 

conflict between the federal and state statutes under consideration, in the sense of it being impossible to comply with 

both.” 350 Or at 311. In Emerald Steel Fabricators, Inc. v. 

BOLI, 348 Or 159, 176, 230 P3d 518 (2010), our Supreme 

Court explained that “the physical impossibility prong of 

implied preemption is vanishingly narrow.” (Internal quotation marks omitted.) In Emerald Steel, the Supreme Court 

concluded that it is not physically impossible to comply with 

both the Oregon Medical Marijuana Act and the federal 

Controlled Substances Act because, although the two laws 

are logically inconsistent, “a person can comply with both 

laws by refraining from any use of marijuana.” Id. Similarly, 

here, a person granted relief under ORS 166.274 may refrain 

from possessing a firearm, so it is not physically impossible 

to comply with both the state and federal laws at issue.

Turning, then, to the second prong of the analysis, 

we must consider whether ORS 166.274 stands “as an obstacle to the full accomplishment and exercise of the federal 

firearms statute’s purpose.” Willis, 350 Or at 311.

“Federal cases teach us that obstacle preemption questions are to be resolved by examining the federal law to 

ascertain its purposes and intended effects, examining the 

state statute to determine its effects, and comparing the 

results to determine whether the latter statute in some 

way obstructs the accomplishment of the objectives that 

have been identified with respect to the former statute.”
Cite as 328 Or App 686 (2023) 693

Id. at 309 (internal quotation marks omitted). “When traditional regulatory powers of the states are implicated (as in 

the present case), that analysis incorporates a presumption 

that Congress did not intend to preempt.” Id. (Emphasis in 

original.)

In the instant case, as described above, the relevant 

federal statute makes it unlawful for any person who has 

been convicted of a felony to “possess in or affecting commerce *** any firearm or ammunition.” 18 USC § 922(g)(1). 

The purpose of that statute is to “keep firearms away from 

the persons Congress classified as potentially irresponsible and dangerous.” Barrett v. United States, 423 US 212, 

218, 96 S Ct 498, 46 L Ed 2d 450 (1976) (construing earlier 

version of section 922(g)); see also Dickerson v. New Banner 

Institute, Inc., 460 US 103, 112 n 6, 103 S Ct 986, 74 L Ed 

2d 845 (1983) (By enacting section 922(g), Congress sought 

to keep firearms out of the hands of “presumptively risky 

people.”).

Under Oregon law, it is a Class A misdemeanor for 

a person convicted of a felony to possess a firearm. ORS 

166.250(1)(c)(C), (5). However, a person barred from possessing a firearm under that statute may petition for relief from 

the bar under ORS 166.274(1), and the trial court shall grant 

relief “when the petitioner demonstrates, by clear and convincing evidence, that the petitioner does not pose a threat 

to the safety of the public or the petitioner.” ORS 166.274(7). 

Thus, under Oregon law, subject to the trial court’s determination that felons do not pose a threat to themselves or others, the trial court may restore their right to possess a firearm. In other words, if that right is restored, the felon will 

be protected from prosecution under ORS 166.250(1)(c)(C) 

or, if applicable, ORS 166.270. But simply removing the ability of the state to prosecute someone for possessing a firearm does not obstruct the purpose of the federal statute; 

restoring the rights under state law does not mandate that 

a person actually possess a firearm, and, if trial courts are 

applying ORS 166.274 appropriately, gun rights may only be 

restored upon a showing that the petitioner does not pose a 

threat to themselves or others, which is consistent with the 

purpose of the federal disability.
694 Newman v. Marion County Sheriff’s Office

Furthermore, in Willis, the Supreme Court determined that Oregon’s concealed handgun licensing statute 

does not stand as an obstacle to the purposes of the federal Gun Control Act because the state statute “does not in 

any way preclude full enforcement of the federal law by federal law enforcement officials.” 350 Or at 312. Applying the 

same reasoning here, granting appellant relief under ORS 

166.274 means that he can no longer be successfully prosecuted for being a felon in possession of a firearm under ORS 

166.250(1)(c)(C), but granting appellant that relief does not 

preclude federal law enforcement officials from prosecuting 

appellant under section 922(g) if appellant were to “possess 

in or affecting commerce *** any firearm or ammunition.”7

In sum, having considered the sheriff’s preemption argument, we reject it. First, there is no direct conflict between the state and federal statutes at issue in the 

sense of it being physically impossible to comply with both. 

Second, ORS 166.270 does not stand as an obstacle to the 

accomplishment of Congress’s objective to keep firearms out 

of the hands of dangerous persons. And third, granting the 

relief requested will not protect appellant from prosecution 

under federal law or hinder enforcement of the federal statute. Accordingly, we conclude that ORS 166.274 is not preempted by the federal Gun Control Act.

Next, the sheriff argues that ORS 166.274 does not 

allow for “partial relief from the bar on possessing or purchasing a firearm,” and that granting petitioner the relief 

requested “would create substantial confusion as to what 

effectively has been restored.” We are not persuaded by 

that argument. In the instant case, the right that would be 

restored is appellant’s right to possess a firearm without fear 

or risk of prosecution for the misdemeanor offense of being a 

felon in possession of a firearm under ORS 166.250(1)(c)(C). 

But that relief would not protect him from federal prosecution for being a felon in possession of a firearm under section 922(g)(1). To obtain relief from that federal disability, 

7 At the hearing, counsel for appellant suggested that, if the relief was 

granted, then it would not grant appellant protection from prosecution under 

federal law, but he could not be successfully prosecuted under section 922(g) if he 

were to possess “black powder rifles, antique firearms, all firearms that are not 

engaged in interstate commerce[.]” We express no opinion on that question.
Cite as 328 Or App 686 (2023) 695

appellant must have his civil rights restored under federal law. Beecham, 511 US at 374. However, as we noted, 

Beecham does not deprive the trial court of its authority to 

grant appellant relief from the bar on possessing a firearm 

under state law.

Having rejected the sheriff’s legal arguments, we 

consider the facts presented below. See ORS 166.274(10)(a) 

(“Initial appeals of decisions shall be heard de novo.”). In 

support of his petition, appellant filed an affidavit explaining that he seeks relief from the bar on possessing a firearm 

so that he can go hunting with his brother and children. 

Appellant’s petition was supported by letters from family 

members and friends. In opposition, the sheriff presented 

no evidence and relied on its legal arguments.

At the hearing, the trial court expressed concern as 

to whether “law enforcement data systems have the capability” to distinguish between the restoration of state and 

federal rights to possess a firearm. But there is no evidence 

in the record about law enforcement data systems and their 

capabilities. Accordingly, there is no evidence that we can 

rely on to conclude that they are incapable of doing so. In 

any event, we are not persuaded that such concerns would 

affect our ultimate analysis. Based on the evidence presented at the hearing, we conclude that appellant demonstrated, by clear and convincing evidence, that he “does not 

pose a threat to the safety of the public or” himself. ORS 

166.274(7).

In Bentley, we considered a similar appeal from a 

judgment denying an ORS 166.274 petition. 297 Or App 

at 610. Like appellant, the petitioner in Bentley had a federal robbery conviction. Id. Undertaking de novo review, we 

concluded that the petitioner demonstrated that he did not 

pose a threat to the safety of the public or himself, and we 

reversed and remanded. Id. at 615-16. We did so even though 

a letter from the petitioner’s probation officer alluded to the 

difference between federal and state law. After the petitioner satisfied the conditions of his supervised release, his 

probation officer sent him a letter congratulating him, but 

warning that his federal “‘right to bear a firearm is a right 

which cannot be returned to you at this time due to budget 
696 Newman v. Marion County Sheriff’s Office

constraints by the [ATF].’” Id. at 610-11 (boldface in original). Nevertheless, we remanded for entry of a judgment 

granting the petition. Id. at 616.

Similarly, here, although granting appellant’s petition for relief under ORS 166.274 will not restore his right to 

possess a firearm under federal law, that fact does not render 

the requested relief meaningless, because it protects appellant from prosecution under ORS 166.250(1)(c)(C). Having 

reviewed the record de novo, we conclude that appellant met 

his burden of showing by clear and convincing evidence that 

he does not pose a threat to the safety of the public or himself, and that the trial court should therefore have granted 

the petition.

Reversed and remanded for entry of judgment 

granting petition.