Illegal Nullification of Laws in Four Oregon Counties
UPDATE December 2, 2020: Columbia and Umatilla counties both passed the illegal nullification measures on their ballots. Columbia did so despite having one of the highest rates of increase in a leading indicator of gun sales in Oregon. The firearm instant background check system requests to the Oregon State Police rose by 88% in Columbia County from January 1, 2020 to September 30, 2020 compared to the same period in 2019.
Columbia County has not stated how they will prepare for an increase in suicide, homicide, unintentional shootings, and stolen firearms.
Umatilla County already passed a similar measure several years ago. No word how the new measure will change behavior of law enforcement.
The counties of Coos, Columbia, Clatsop, and Umatilla are voting on measures which will prohibit county employees from enforcing duly enacted state and federal laws related to firearms. The laws would attempt to charge county employees with a Class A Violation and face fines up to $2,000 for enforcing firearm-related laws.
These so-called “Second Amendment Sanctuary” measures attempt to nullify duly enacted laws and will run afoul of state and federal law. In addition, they lack clarity and are based on questionable legality thereby opening the counties to a lawsuit which would be paid for by the taxpayers.
The measures are in conflict with Oregon law ORS 166.170 which specifically states: “Except as expressly authorized by state statute, no county, city or other municipal corporation or district may enact civil or criminal ordinances, including but not limited to zoning ordinances, to regulate, restrict or prohibit the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition.”
Rob Taylor, in a letter to The Astorian, dated October 15, 2020, attempts to weasel around the Oregon law. Taylor states that the measure, “does not violate Oregon’s preemptive state statute. It prevents county officials from using county resources for the enforcement of laws that regulate firearms and firearm accessories.” Mr. Taylor seems to be unaware that petitions can only make new laws.
According to a 2018 decision by Grant County Judge W.D. Cramer, Jr., measures must be legislative in nature and not regulatory. So if the measure creates new law, it very likely violates ORS 166.170. If it does not, it probably violates Oregon Constitution, Article IV, Section 1 which states that petitions can only make new law. (See citations 1 and 2 below.)
In addition to the conflicts with Oregon law, the measures are poorly written and have vague language. What happens when a person with a conviction for domestic violence or stalking (and would, therefore, be prohibited from purchasing a firearm) buys a gun without a background check and fatally shoots someone? Can that shooter, who is not a felon, sue the arresting sheriff? Will the sheriff face a Class A Violation for enforcing the law? The measure seems to make exceptions for felons with firearms but what about other prohibited groups? Who gets to determine which laws are enforced? How will the process be created? And to what other areas of law will it extend?
The authors of these measures state they are afraid of lawlessness. If that is the reason for the measure, why attempt to nullify the background check law? Why make it easier for convicted criminals to buy guns?
Citizens of Coos, Columbia, Clatsop, and Umatilla Counties must realize that passing this measure will send a clear message to criminals that they are welcome anywhere in those counties to arm themselves with impunity.
The pro-shooting organizations and gun lobbyists are attempting to illegally nullify laws that reduce firearm injuries and deaths. The people of Coos, Columbia, Clastop, and Umatilla Counties could pay dearly for their hubris.
(1) “The plain reading of measure 12-72 violates this statute [ORS 166.170] and by definition enters into an area that by law is not of county concern.” Grant County Circuit Case No.18CV19251, Judge W.D. Cramer, Jr., letter to Mr. Mark Webb and Mr. Ronald S. Yockim, July 29, 2018.
(2) “Further [the measure] contains provisions that are not legislative in nature and; therefore, not proper for an initiative by definition.” Grant County Circuit Case No.18CV19251, Judge W.D. Cramer, Jr., letter to Mr. Mark Webb and Mr. Ronald S. Yockim, July 29, 2018.