Citing “life-and-death stakes” in the case, Oregon’s attorney general Wednesday morning filed a petition urging the state Supreme Court to order a Harney County judge to throw out his temporary restraining order that has blocked gun-control Measure 114 from taking effect.
The attorney general, on behalf of the governor and state police superintendent, argues that Harney Circuit Court Judge Robert S. Raschio exceeded his authority, and that the state Supreme Court’s immediate intervention is the only way to correct the error.
“An immediate stay is needed to stop the threat to public safety that the temporary restraining order created and to prevent public confusion about the legal status of large-capacity magazines in Oregon,” Assistant Attorney General Robert Koch wrote.
On Tuesday morning, Raschio granted a temporary restraining order against all provisions of the gun-control measure, which was set to take effect on Thursday. His order came from a case brought by Gun Owners of America, a Virginia-based nonprofit, its legal defense fund and two Harney County gun owners, who argued the measure violated the state’s constitution.
His order was binding and separate from a federal judge’s decision three hours earlier that allowed the measure’s regulations to take effect as planned, with only a 30-day delay in the requirement to obtain a permit to buy a gun.
Measure 114, which passed by 50.7% of votes, requires Oregonians to acquire a permit to buy a gun, and it bans the sale, transfer and manufacture of magazines holding more than 10 rounds. It also requires a background check of the buyer be completed before any sale or transfer of a gun can occur.
The attorney general’s petition asks the state Supreme Court to issue what’s called a “peremptory writ of mandamus,” directing the Harney County Circuit Court to vacate the temporary restraining order. If not that, the state Supreme Court should put an immediate hold on the restraining order and direct the Harney County judge to either throw out the order or show why there’s cause not to do so, the attorney general urged.
Gun-rights advocates who brought the suit in Harney County can continue to “bear arms” and defend themselves inside or outside of the home while a court decides the merits of their claims, even once Measure 114 takes effect, Koch wrote.
Measure 114 was approved by voters to reduce and prevent “horrific deaths and devastating injuries due to mass shootings, homicides and suicides,” the attorney general argued. The state constitution’s Article 1, Section 27, established a right to bear arms, but it’s “not an absolute right,” Koch wrote. State case law has found that the right to bear arms “does not mean that all individuals have an unrestricted right to carry or use personal weapons in all circumstances,” Koch noted.
“Magazine capacity restrictions and permitting requirements have a proven track record: they save lives! We are confident the Oregon Constitution — like the Second Amendment of the U.S. Constitution — allows these reasonable regulations,” Attorney General Ellen Rosenblum said in a statement.
Raschio ruled that putting the measure on hold would maintain the “status quo” until the court can determine in a further, more in-depth hearing for a preliminary injunction next week whether the measure passes muster under the Oregon Constitution.
The state constitution’s Article 1, Sec. 27 says, “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, ruling from the bench Tuesday morning, said he was persuaded that “magazines are protected by the Oregon constitution, and firearms containing fixed magazines that can hold 10 bullets or more are in common use within Oregon.” He gave greater weight to individual liberties over the state’s interest in the measure, in granting the temporary restraining order.
The Harney County judge overstepped his authority by temporarily blocking all provisions of the gun-control measure, even though the Gun Owners of America and other plaintiffs in the case didn’t challenge all of the regulations, such as the requirement that background checks be completed before a gun is sold or transferred, Koch wrote.
“The trial court thus ‘went too far’ in so cavalierly disregarding the will of Oregon’s voters,” the petition reads.
The attorney general’s office pointed to California’s experience when a district court issued a permanent injunction in March 2019 against a similar law prohibiting large-capacity magazine sales.
“The life-and-death stakes of this case justify this court’s exercise of mandamus authority here, as a recent tragedy in California illustrates,” Koch wrote.
A judge later allowed the California ban to take effect, and the following week, a 19-year-old man bought a rifle and several 10-round gun magazines from a San Diego gun store. The hold on the law prevented him from buying any large-capacity magazines, according to the filing. On April 27, 2019, the 19-year-old entered a Chabad synagogue in Poway, Calif., wearing a tactical vest that held five 10-round magazines and his rifle loaded with another 10-round magazine. He fired all 10 rounds of the loaded rifle magazine, killing one congregant and injuring three others.
“Congregants were able to end his attack when he stopped shooting to reload a magazine cartridge. A large-capacity magazine would not have afforded that opportunity,” Koch wrote. Before the gunman could reload with one of his five other magazines , an unarmed congregant rushed at him, forcing him to retreat to his car, which gave time for an armed off-duty officer to intervene and fire back. The gunman then fled by car and surrendered.
“Put simply, preventing mass shootings is a permissible legislative aim,” the attorney general’s briefing says. “Since the federal ban on large-capacity magazines expired in 2004, every mass shooting that caused 14 or more deaths has used a large-capacity magazine, and mass shootings using large-capacity magazines were 62% more lethal than those that did not.’’
STATE POLICE SUPERINTENDENT GIVES UPDATE TO LAWMAKERS
In other developments, the Oregon State Police on Wednesday will present to the Secretary of State’s office temporary rules that the agency has drafted to support Measure 114, Oregon State Police Supt. Terri Davie told lawmakers. In the future, the state police will seek public input for more permanent rule-making to support the measure, Davie and state police Cmdr. Rebecca David said.
Davie appeared before an interim state Senate Judiciary Committee to update the legislature on the status of her agency’s effort to comply with Measure 114′s regulations.
Preliminary work began largely in October, a month before the election, she said, and once it appeared clear the measure was likely to pass, the state police reached out to work with the Oregon State Sheriffs’ Association and Oregon Association Chiefs of Police.
Davie described “a lot of push and pull … going back and forth” with local law enforcement to determine who would be in charge of different responsibilities required by the measure.
Though a permitting process is not operational, state police will unveil a new website page on Thursday for the permit-to-purchase program, with a copy of a formal permit application that can be downloaded, Davie reported.
“The form will go live tomorrow,” Davie told lawmakers, yet the required training to obtain a permit isn’t yet available in the state.
If a permitting process is allowed to proceed, an applicant would need to provide fingerprints to local police or a county sheriff’s office, complete a law enforcement-approved firearms safety course and undergo a background check. The firearms safety course requires an in-person demonstration that the applicant has knowledge of how to load, unload and fire a weapon.
That training is still being developed, and law enforcement needs to certify the vendors who will provide the training, Davie said.
The sheriffs’ association, meanwhile, has worked to update the online portion of state training for obtaining a concealed handgun license to include the added training subjects that Measure 114 demands, Davie reported. That includes training on state law governing safe storage of guns and prevention of abuse or misuse of guns, including the impact of homicide and suicide on families and communities.
The state police superintendent also outlined the process that is planned for applying for a permit.
An applicant would submit an application to a county sheriff’s office or police agency and have fingerprints taken, and the packet of information, including a paper fingerprint card, would be sent by U.S. mail, or carried by courier or local law enforcement, to the state police. The state police then would submit an applicant’s fingerprint card to the FBI for a background check. When the check is done and comes back to state police, the state police would contact the local sheriff’s office or police agency to report the outcome of the background check. It would then be up to the local law enforcement agency to decide whether the applicant met the requirements for a permit.
The state police, under the measure, is expected to maintain a database of all who have applied for permits and if they were accepted or rejected. Such a database, however, doesn’t exist yet, Davie told lawmakers.
State Sen. Kim Thatcher, R-Keizer, asked if people’s names and other personal identifying information will be included in the database and subject to public release.
Davie said she doesn’t know yet. Thatcher said she would want to protect the names of gun permit holders from public release.
Other questions remain, Davie said. For example, she said, if police have already seized a firearm with a large-capacity magazine from an owner as either evidence or for safe-keeping and the owner asks for it back after Measure 114 takes effect, police don’t know if they’re supposed to hold onto the magazine or return it.
— Maxine Bernstein
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