The Oregon Court of Appeals has denied a motion by Harney County gun owners to dismiss the state’s appeal of a judge’s ruling that found the voter-approved gun control Measure 114 violates the state Constitution.
The appellate court also accepted the state’s opening brief in the appeal even though it came a week after a deadline set in an expedited schedule instituted by the court. State lawyers said they had to wait for corrections to be made in the original trial transcript.
The gun owners who challenged Measure 114 in Harney County now have until July 26 to file their response.
Lawyers for the state argue that Harney County Circuit Judge Robert S. Raschio turned “legal standards on their head” and should have found the measure’s regulations constitutional as written under existing case law.
The trial court “weighed the policy merits of the measure for itself and, at the same time, refused to consider published studies and reports on the public safety benefits of each of the law’s three components,” the state’s opening brief said.
By doing so, Raschio assumed “policy-making authority” that belongs to the Legislature and overrode the initiative process that belongs “to the people,” the brief said.
The state has argued Article I, Section 27, of the Oregon Constitution codifies a right to “bear arms” for self-defense but the right is “not absolute.”
Voters approved Measure 114 with 50.7% of the vote in November 2022. It limits gun magazine capacity to 10 or fewer rounds; requires a permit to buy a gun; and closes the so-called “Charleston Loophole” by requiring the completion, not just initiation, of a criminal background check to buy or transfer a gun.
The week before the law was set to take effect in Dec. 8, 2022, two Harney County gun owners filed a lawsuit challenging both the permitting requirement and the magazine capacity limit.
Raschio issued an emergency injunction, blocking the measure from taking effect. He then held a six-day bench trial on the merits of the suit and last November found the measure’s two major provisions -- the permit to buy a gun and the ban on the sale, transfer and manufacture of magazines holding more than 10 rounds -- both violate the state constitution.
The judge found the regulations infringed on the constitutionally protected right to bear arms. And, despite arguments by state lawyers that the new regulations were intended to reduce mass shootings, suicides and homicides, Raschio said the state failed to show either provision would promote public safety.
Lawyers for the state contend Raschio wrongly excluded studies, reports and statistics on the public safety impacts of the gun control regulations and urged the appellate court not to make the same mistake.
Assistant Attorney General Robert A. Koch, for example, argues that Raschio wrongly excluded a 187-page Las Vegas police investigative report on the largest mass shooting in U.S. history, the Oct. 1, 2017, massacre in Las Vegas, when a gunman opened fire on a music festival from his hotel suite, killing 58 people and injuring more than 800.
The state tried to introduce the report to show the gunman had been found with 60- to 100-round magazines.
“The report provides tragic — and relevant — details about the shooter using large-capacity magazines to commit mass slaughter, harms that Measure 114 was expressly enacted to prevent,” Koch wrote. “According to the trial court, the use of large-capacity magazines to kill and injure hundreds in mere minutes was irrelevant. That is baseless.”
Raschio did allow testimony on the average number of rounds used in self-defense. A state’s witness testified that a review of the National Rifle Association’s Armed Citizen defense data shows the average rounds fired in self-defense is no more than 2.3 rounds.
In contrast, the two Harney County gun owners who filed the challenge in court, as well as two rural Union and Harney county sheriffs, testified at trial about their preferences for large-capacity magazines for self-defense to protect their livestock from coyotes, or to thwart attacks from wolves and bears.
The grassroots group Lift Every Voice Oregon and other faith-based organizations that worked to place the measure on the ballot have filed a friend of the court brief to support the state’s appeal.
Their attorney, Nadia H. Dahab, contends Raschio applied the wrong legal analysis through his “speculative inquiry focused on whether the law could ever be applied unconstitutionally.”
Dahab pointed to the judge’s direct questioning of Joseph Paterno, a volunteer coordinator with Lift Every Voice Oregon, during the trial. Raschio made up several scenarios concerning the possible effects of the measure on pastors or rabbis of different races. He suggested police could disparately enforce the new gun regulations.
Raschio asked how police might respond to an “older white Reverend” versus a “young Black pastor” or an “older white rabbi’' versus a “younger Middle Eastern rabbi,” with a nod apparently to the chief petitioners of Lift Every Voice Oregon.
Dahab wrote that Raschio “focused not on whether the law could constitutionally be applied, but on whether, if at all, it could unconstitutionally be applied in circumstances the trial court speculated might arise.”
“Rather than determine whether Measure 114 ‘is capable of constitutional application in any circumstance,’ the trial court instead searched for any possible circumstance in which the the measure might be unconstitutionally applied or construed. This was legal error that requires reversal,” Dahab wrote.
Joining Lift Every Voice Oregon in the brief are Ceasefire Oregon, Central Oregon Gun Safety Advocates, the Jewish Federation of Greater Portland, League of Women Voters of Oregon, Muslim Educational Trust, Ecumenical Ministries of Oregon, Viva Inclusive Migrant Network and Albina Ministerial Alliance.
The Appeals Court also has allowed the Brady Center to Prevent Gun Violence, Giffords Law Center to Prevent Gun Violence, March for Our Lives, Oregon Alliance for Gun Safety, Alliance for Gun Responsibility and Gun Owners for Responsible Ownership to file its own friend of the court brief in support of the measure.
-- Maxine Bernstein covers federal court and criminal justice. Reach her at 503-221-8212, mbernstein@oregonian.com, follow her on X @maxoregonian, or on LinkedIn.
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