Here’s the latest
On September 25th, the state court trial related to Measure 114 ended. Set in Harney County before Circuit Court Judge Robert Raschio, the trial will result in a written opinion as to whether Measure 114 is allowed under the Oregon Constitution.
Last December, Judge Raschio refused to allow Measure 114 to be implemented, saying he needed to hear all the facts in a trial setting. The ruling is expected before Thanksgiving. Regardless of what he decides, the final determination will be up to the Oregon appellate courts. While we have confidence that Measure 114 will ultimately be approved, it is deeply concerning that implementation of Measure 114 has been delayed for a full year.
How can a county court judge tie up Measure 114 for almost a year?
A recently passed law may be challenged in state court to determine if it is consistent with the state constitution. However, the courts have the power to allow the law to take effect while under judicial review.
A similar challenge under the federal constitution was filed in federal court, where the judge allowed the law to be implemented on a preliminary basis while the case moved forward because the law was addressing a serious matter of public safety. The Harney County judge, in contrast, not only issued a stay on December 8, 2022, but then did not schedule the trial until mid-September 2023, with a decision to be issued generally 60 days later.
The state court trial was limited to scrutiny of Measure 114’s language, not its application.
The narrow focus was appropriate because Measure 114 has not yet been applied in Oregon. The test is a simple one: Is it capable of being considered constitutional in at least one applicable situation
But the proof allowed by Judge Raschio seemed much broader. He permitted lengthy anecdotal testimony from the gun owners related to the magazine size they personally preferred for self-defense. Some, but not all, preferred using large-capacity magazines.
However, the Oregon Supreme Court has previously ruled that the right to bear arms is not “absolute” and “reasonable regulations” to promote public safety are “constitutionally permissible.” The personal preference of a gun owner is not protected by the constitution, particularly when studies prove that more than 10 rounds are almost never used for self-defense - the average number of rounds used is 2.3 per incident.
Some evidence offered by the State was not allowed in the Harney County trial.
The State tried to put on witnesses with evidence-based and personal testimony showing changes like those in Measure 114 had promoted public safety in other states, such as:
Substantial increase in deaths/injuries in mass shootings when large-capacity magazines were used;
Reduced homicides and suicides when gun permit programs and bans on large-capacity magazines were adopted;
The horrendous damage caused by weapons using large-capacity magazines, as witnessed by survivors, victims’ family members and trauma surgeons
Even though most of this evidence was allowed in the federal court case, it was ruled inadmissible in the Harney County trial.
Judge Raschio brought up questions unrelated to the complaint
Despite the narrow issue in this trial to just consider Measure 114, as written, Judge Raschio engaged in what one reporter called “combative inquiry” when he asked LEVO's Volunteer Coordinator (not a legal expert), whether a couple of the provisions would be unfair if applied inconsistently by a biased law enforcement officer.
The judge’s questions ignored the specific language in Measure 114 stating (1) it is intended to be applied in a “consistent and equitable manner”, (2) it requires State Police reports that should expose biased treatment by local law enforcement, and (3) it provides for an immediate appeal and decision by a local Circuit Court Judge to anyone claiming unfair application.
Judge Raschio also raised legal theories of his own about the part of Measure 114 that allows a permit to be denied if “reasonable grounds” exist to conclude that an applicant is likely to be “a danger to self or others”. But this is not a new test in Oregon; current law requires the same standard to be applied by every Oregon County sheriff in each concealed carry license application. Measure 114 merely incorporated that test from existing, well-vetted law that has been upheld by the courts as reasonable in its application.
What is expected after the state judge rules?
Once Judge Raschio issues a ruling either party may appeal to the Oregon Court of Appeals that will review the evidence, briefs, and hear oral arguments. An appeal to the Oregon Supreme Court may follow. In either of these appeals, groups such as LEVO, may file friend of the court (amicus curiae) briefs to help the court make its decision. We will urge swift review, a determination that Measure 114 is permitted under the Oregon Constitution, and an order to implement all provisions immediately.
Every day in Oregon, more lives are lost to gun violence as a result of the temporary hold placed on the reasonable and effective safeguards of Measure 114. It is time to protect our neighbors and families with the full implementation of the Measure.
What has happened in the Federal Court Case?
Measure 114 went to trial in federal court on June 6, 2023 and was upheld entirely under the US Constitution. The court continued its determination that Measure 114 should be in effect at this time and the permit-to-purchase procedure requirement should be implemented as soon as law enforcement is ready to issue permits and as soon as the stay imposed by the state court is lifted.
The same conclusion should be reached under the Oregon Constitution.
We believe the state court standard is even more favorable to allowing reasonable regulation of firearms, based on prior Oregon Supreme Court rulings. In federal court, Judge Immergut had to take into account the US Supreme Court’s recent ruling in 2022 (referred to as Bruen), which required delving into the history of legislative actions and firearm development. But even in that context, the federal court found:
Large-capacity magazines (LCMs, defined as magazines over 10 rounds) are not covered by the 2nd Amendment because they are not “arms” by themselves.
LCMs are not used primarily for self-defense.
According to state experts, LCMs are only used for self-defense 0.02% of the time and an average of only 2.3 rounds are fired in each event.
The federal court also relied upon specific language in the Bruen decision to support Measure 114’s permitting process, as crafted:
The US Supreme Court indicated that such processes were permitted where they required that a permit “shall” be issued if the applicant passed a background check, training, mental health check, and similar objective evaluation tools, rather than based upon the whim or personal opinion of the permitting agent.
The Court listed 43 states with similar procedures, including Oregon’s concealed carry licensing procedure.
The permit-to-purchase procedure under Measure 114 was written to be virtually identical to the concealed carry statute.
These findings should also be sufficient to uphold both of the proposed changes under Measure 114 as permissible under Oregon’s Constitution by Judge Raschio and certainly in the Oregon appellate courts.