McKinley

BURNS — A Harney County judge on Tuesday, Nov. 21, permanently blocked Oregon from enforcing gun control Measure 114, ruling it infringes on the constitutionally protected right to bear arms.

The state plans to appeal the ruling to the Oregon Court of Appeals, and the case will likely end up before the Oregon Supreme Court.

“The Harney County judge’s ruling is wrong. Worse, it needlessly puts Oregonians’ lives at risk. The state will file an appeal and we believe we will prevail,” Oregon Attorney General Ellen Rosenblum said in a statement.

Circuit Judge Robert S. Raschio found the two major provisions of the voter-approved measure — a permit to buy a gun and a ban on the sale, transfer and manufacture of magazines holding more than 10 rounds — both violate Article 1, Section 27 of the state’s constitution.

Despite the argument by state lawyers that the new regulations were intended to reduce mass shootings, suicides and homicides, Raschio said they failed to show either provision would promote public safety.

He found that a 30-day window to process a gun permit application would restrict the right of Oregonians to defend themselves if facing an imminent threat.

The large-capacity magazine ban, he found, wouldn’t deter shooters who could simply carry multiple 10-round magazines and reload quickly.

Raschio’s 44-page ruling granting a permanent injunction followed a six-day trial in September to consider a challenge by two Harney County gun owners.

Will of the voters

Voters a year ago approved the measure with 50.7% of the vote, but it has been stalled since Raschio temporarily put it on hold after the lawsuit was filed. It had been set to take effect Dec. 8, 2022.

In a separate trial earlier this year, a federal judge in Oregon found the measure did not violate the Second Amendment of the U.S. Constitution, but her ruling doesn’t supersede the state case.

Raschio reviewed whether the measure is in line with Article 1, Section 27 of the Oregon Constitution, which says, in part: “The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power …”

Raschio said he intended to restrict his analysis in the state case to the text of the measure and wouldn’t examine how the regulations would be applied.

Oregon Senior Assistant Attorney General Harry B. Wilson and other lawyers for the state had argued that the right to bear arms is not absolute.

They said the measure called for reasonable restrictions on gun purchases for people who may be a danger to themselves or others and a reasonable limit on the number of rounds in a gun magazine to reduce homicides and mass shootings.

At trial, though, the judge barred the state from offering testimony from family members of mass shooting victims on the impact of their loss, testimony about the effectiveness of other states’ permit-to-purchase programs or physician testimony on the increased lethality of multiple gunshot wounds from shootings involving large-capacity magazines.

State lawyers defending Measure 114 said it reflected Oregon’s response to a sharp increase in gun violence in the state, including the 2015 mass shooting at Umpqua Community College that left nine dead and eight wounded, the 2012 mass shooting at Clackamas Town Center that left two dead and one wounded, and the 2022 mass shooting at a Bend Safeway that left two dead and two wounded.

While Raschio acknowledged that mass shooting events “have a significant impact on the psyche of America,” he wrote in his opinion that they’re “sensationalized by the media” and “rank very low in frequency.”

“Mass shooting events are tragic and often involved the most vulnerable sections of the population. However, the court finds that number of people killed and injured is statistically insignificant compared to the number of lawful gun owners,” Raschio wrote.

No convincing evidence

Lawyers for the state’s attorney general have argued they were unable to create a full record that shows the trauma caused by mass shootings and the “harm that the people of Oregon were intending” for the new measure to address.

In contrast, the judge relied on testimony from two rural Oregon sheriffs, the state police superintendent, the Harney County gun owners who filed the suit and the National Police Association, which filed a “friend of the court” brief in support of the gun owners.

Raschio also relied on testimony from Ashley Hlebinsky, a gun museum curator who was in charge of the Cody Firearms Museum in Wyoming and is a senior fellow for the University of Wyoming College of Law’s new Firearms Research Center. Hlebinsky’s testimony was largely discounted by U.S. District Judge Karin J. Immergut in the federal trial because of what Immergut called her “personal and professional ties to pro-gun groups.”

“The defendants failed to provide any convincing evidence of a threat to public safety requiring a permitting process,” Raschio wrote in his ruling.

In contrast, Raschio wrote, the permit-to-purchase regulations would harm public safety, particularly in rural communities.

The measure says a police chief, sheriff or their designee “shall issue” a permit to buy a gun within 30 days of receiving an application if the person has met each of the qualifications: been fingerprinted, passed a national criminal history background check, completed a firearms safety-and-training course and paid a fee.

But Raschio found that the wait creates an unnecessary delay that could thwart someone’s right to defend themselves.

He highlighted the testimony of two rural sheriffs — Dan Jenkins, of Harney County, who oversees five deputies, and Cody Bowen, of Union County, who leads 15 deputies — as demonstrating “definitively that citizens cannot rely on law enforcement to respond quickly to their needs” if they face a home break-in or threat of deadly harm.

Both sheriffs said they often rely on residents to act themselves because it’s hard for their deputies to cover the large expanse of territory in their respective Eastern Oregon counties.

“Victims can be left without a law enforcement response for hours,” Raschio wrote.

The judge also found that the measure gives permit agents too much discretion to deny a permit, calling the criteria too subjective.

Rounds and magazines

Law enforcement officers can deny a permit if there’s “reasonable grounds” to find an applicant “has been or is reasonably likely to be a danger to self or others, or to the community at large as a result of the applicant’s mental or psychological state or as demonstrated” by their “past pattern of behavior involving unlawful violence or threats of violence.”

Applicants can appeal a denial to a circuit judge in their county.

Raschio said the measure allows law enforcement agencies to consider far beyond objective criteria based on criminal convictions, mental health commitments or court-ordered gun prohibitions in denying a permit.

“The court finds a due process administrative review hearing undermines the right to bear arms by allowing the consideration of all types of information that would not be allowed in (a) court proceeding where the rules of evidence would apply,” he wrote.

Raschio also discounted the state’s argument that delaying a gun purchase would reduce suicides by potentially allowing someone in the throes of depression to reconsider before obtaining a gun.

“But that assertion was not supported by data in this record that the policy would do so,” he wrote.

Though the state argued that banning magazines holding more than 10 rounds would reduce fatalities in mass shootings by making a shooter pause to reload, Raschio disagreed.

“A motivated mass shooter could carry well over 100 rounds in 10 separate magazines and readily release a detachable magazine from a firearm and reload in two seconds offering none of the supposed protection promoted in the preamble or voter’s guide for Ballot Measure 114,” he wrote.

“The court can find no scientific or analytical reasoning on this record that a ten-round limitation will increase public safety in any way,” his opinion said.

Negative public safety consequences

The two county sheriffs and Oregon State Police Superintendent Casey Codding all testified that the measure would prevent them from carrying large-capacity magazines off-duty.

Their testimony helped convince Raschio that the measure would have “negative public safety consequences on policing, increasing a safety risk to the public and the police’s own ability to protect themselves from emergent harm,” he wrote.

Wilson, Oregon’s special assistant attorney general, had argued at trial that Codding’s testimony was irrelevant because Measure 114 specifically excludes law enforcement from its restriction on the use of gun magazines that can hold more than 10 rounds. Law enforcement officers are invested with statutory authority and a responsibility to protect the public that civilian gun owners simply do not have, Wilson argued.

“It’s an apples to oranges comparison that is not relevant to the determination of the constitutionality of Measure 114,” Wilson said at trial.

The judge also found that Measure 114′s language differed from other states by adding the word “changed” in the ban of magazines of more than 10 rounds that “can be readily restored, changed or converted.”

That addition, he wrote, makes Oregon’s measure far more restrictive because “almost all detachable and most fixed magazines” are readily capable of being changed to hold more than 10 rounds and thus would be banned.

He cited testimony offered by the gun owners’ witness Scott Springer, a gunsmith and owner of Redmond’s Springer Precision, who was called to demonstrate that an ordinary person with little training using regular household tools can easily alter magazines to hold more than 10 rounds.

The state had countered that a lawful firearm owner could avoid liability by carrying a 10-round magazine without also carrying an extender, or additional parts and tools that would alert it. State’s lawyers also argued a statistician, who testified that his analysis of the National Rifle Association’s Armed Citizens Database, from January 2011 to May 2017, indicated that the average number of rounds fired in self-defense is 2.2. rounds.

Raschio’s opinion included a historical account of firearms in the state at the time Oregon’s Constitution was ratified in 1857.

“The question for the court to answer is what did the voters of 1857 understand Article I, § 27 to mean?” he wrote. “The court finds the voters of 1857 did not seek to restrain access to the best firearms with the highest functionality possible they could procure.’’

In stark opposition to Immergut’s ruling, which found magazines aren’t considered “protected arms,” Raschio concluded they are under state law.

He found that the Colt revolver and multi-barrel guns in the early 1800s were examples of large magazines used for self-defense at the time of Oregon’s statehood.

‘Legal battle is not over’

The state’s experts had testified that such repeater guns were “extremely uncommon, vanishingly rare, perhaps non-existent” during the state’s founding.

The state’s lawyers had argued at trial that large-capacity magazines are not firearms but an accessory, but even if they were considered firearms, they weren’t in common use for self-defense at the founding of the state.

Immergut, in her opinion, found that even if the U.S. Constitution did protect magazines that hold more than 10 rounds of ammunition, Oregon’s restrictions on their use are “consistent with the Nation’s history and tradition of firearm regulation.”

Attorney Tony L. Aiello Jr., who represented the two Harney County gun owners, Joseph Arnold and Cliff Asmussen, who filed suit, called Raschio’s ruling “well-reasoned.” Gun Owners of America, a major lobbying group based in Virginia that’s behind multiple gun control challenges across the country, initially was a plaintiff in the suit but was no longer named when the case went to trial.

“This legal battle is not over. As both sides have made clear, there will almost certainly be an appeal by the State Defendants, and we look forward to responding to that appeal,” Aiello said by email. “This Thanksgiving, we can be thankful for Article I, section 27 and its continued protection of our right to bear arms, Mr. Arnold and Mr. Asmussen for bravely standing up to the State as Plaintiffs, and Gun Owners of America for making this all possible.”

The chief petitioners behind Measure 114 of the grassroots, faith-based group Lift Every Voice Oregon said they’re not surprised by Raschio’s opinion, considering his previous temporary injunction and his exclusion of certain evidence at trial. They said they’re hopeful Raschio’s ruling will be overturned on appeal.

“The people of Oregon took the work of reducing gun violence into their own hands because so little was being done,” said Marilyn Keller, one of the chief petitioners, in a statement. “Measure 114 provides the two most effective changes, supported by evidence-based studies, for reducing gun-related homicides and suicides. The delay in reaching this decision has been far too long. It is time to take action. We are eagerly looking forward to working through the legal process so we can finally implement a law that will save lives.”

Local sheriffs respond to ruling

Umatilla County Sheriff Terry Rowan, like other sheriffs, was steadfast in the view that Measure 114 infringed on Second Amendment rights to have guns. But he also said the language of the law made it impossible for sheriff’s offices to handle concealed handgun licenses.

“I was elated to hear how the Harney County judge opined on the measure,” he said.

Measure 114 requires gun buyers to pass a criminal background check as well as demonstrate how to use a gun. Rowan said the language of that demonstration component was vague. Did the demonstration have to take place at a gun range, he asked, or could it be in a classroom with dummy rounds that never leave the gun?

And he said the law would not do what it was supposed to do — cut down on gun violence.

“I get the desire for the public to reduce gun violence, but from my lengthy career, the bad guys are still going to get the guns,” Rowan said. “This is going to prevent law-abiding citizens from protecting themselves.”

He said he didn’t have the stats on how many gun thefts there are in Umailla County in a calendar year, but that is how offenders and criminals get guns because state law already prohibits them from buying guns legally.

Oregon has laws restricting who can possess guns and how someone can use a gun, but Rowan said the laws don’t do much to deter gun violence. Too often people with these types of charges do not get a lot of jail or prison time unless the gun offense comes with other crimes. That sends the wrong message about the seriousness of gun crimes, he said.

“Just put more teeth behind it,” he said.

Rowan also is a plaintiff in the federal lawsuit against Measure 114. He said Raschio’s ruling gives the federal case more breathing room. He said the state is sure to appeal.

Bowen, sheriff of Union County, said he is thankful Raschio recognized Measure 114 would not stop gun violence or mass murder. The sheriff has been a strong opponent of the ballot measure since it was first introduced.

“When this measure was first passed I believed it was unconstitutional from the get go, simply based off of requiring people to take a class to exercise their constitutional right,” he said.

Bowen felt it was important to testify to ensure Union County was represented in the matter because an “overwhelming majority” of residents voted no on the ballot measure. Around 75% voted no on the measure in 2022, according to the Union County official election results.

“In the state court Judge Raschio allowed us to testify and took our testimony into consideration,” he said. “If it does go to the (Oregon) Supreme Court they will also listen to that testimony. They’ll listen to all of the facts that have been presented on both sides and they’ll base their decision on that.”

For this reason Bowen was grateful Raschio allowed testimony, considering the federal court case on Measure 114 did not. He also said he was glad the state court struck down the ballot measure because he feels there is no way to facilitate it.

“It puts a huge burden on local sheriff’s offices, and ultimately it would have decreased the amount of patrol presence that I could provide in the county,” Bowen said.

The burden of funding any of the requirements of Measure 114 would have been placed solely on the local level, Bowen said, given that there was no money coming from the state. For the Union County Sheriff’s Office this would have meant the department would need to pull two deputies from patrol duties in order to facilitate the classes — on top of funding the additional background checks required.

“If there is a measure that comes across that shows that it will do something to directly impact our mental health issues or the root of gun violence rather than the gun itself or responsible gun owners, then I’m going to be a part of that and be supportive of that,” Bowen said.

Grant County Sheriff Todd McKinley applauded Raschio’s ruling.

“As a sheriff, I am always for people’s constitutional rights. And I felt 114 absolutely infringed on their Second Amendment rights. And I believe the judge’s decision was correct and accurate,” McKinley said.

“We have plenty of laws on the books to enforce, and if the courts would take a stronger stance on the laws that are already there, I believe things like this are needless,” he added. “There would be no reason to even have Measure 114-style laws. Hurting people is still a crime. Enforce that.”

McKinley also was relieved that his office would not be expected to implement a database for gun purchase permits and provide live fire training to potential gun owners in the county — something McKinley told the Grant County Court last year he didn’t think his office has the resources to accomplish.

“It was, I think, an unnecessary step,” the sheriff said. “Financially, it’s going to help the county and financially it’s going to help law-abiding gun owners be able to procure firearms without the needless hassle. They already have to go through background checks and all that here in Oregon currently. It was just one more step to try to make it cost-prohibitive for them to enjoy their rights.”