The Oregon Court of Appeals on Friday declined the state’s motion to allow Measure 114 to go into effect while it appeals a Harney County judge’s ruling that found the voter-approved gun control measure unconstitutional.
But court did agree to expedite a decision on the state’s appeal.
The measure, passed with 50.7% of the vote in November 2022, requires a permit to buy a gun and bars the sale, transfer and manufacture of magazines holding more than 10 rounds of ammunition.
The Appeals Court said to allow the measure to take effect while the state’s appeal is pending would “upend the status quo,” since a Harney County judge blocked its enforcement just before it was set to begin in late 2022.
The court also rejected the state’s argument that a further delay of the new gun control regulations would put Oregon citizens at greater harm of violence.
The court called the state’s argument “entirely speculative.”
“Although the court acknowledges that the measure itself is intended to address an issue of great importance to the public, the motion does not present a sufficient basis to conclude that there is a nonspeculative likelihood of harm that will occur during the pendency of the appeal in the absence of a stay,” the ruling said.
The court did agree to rule more quickly on the state’s appeal, yet provided more time for each side to file initial briefs and responses, setting a deadline of 119 days out from Friday for all filings to be submitted in the case with no extensions granted barring extraordinary circumstances.
Harney County Judge Robert S. Raschio found the measure’s two major provisions both violate Article 1, Section 27 of the state’s constitution.
The state’s lawyers and organizations that supported the measure had argued that the appellate court should heed the will of the voters who passed Measure 114 and allow it to take effect to protect the public from the significant harm of gun violence and potential mass shootings.
In contrast, attorney Tony Aiello Jr., representing the gun owners who successfully challenged the measure, argued that its adoption would instead result in immediate harm to gun owners who would be deprived of using certain high-capacity magazines for self-defense. He called the state’s argument that the measure would improve public safety during the state appeal without basis.
The likelihood that a mass shooting event would occur in Oregon “with a newly purchased firearm capable of holding more than 10 rounds as opposed to an identical firearm magazine unaffected by the measure is extraordinarily slim,” Aiello wrote.
The appellate court said both sides made reasonable arguments on the measure’s constitutionality and that each has a “legitimate likelihood of success on the merits.”
But the court wasn’t convinced that keeping the measure on hold would result in measurable harm.
“As the state acknowledges, it is impossible to predict whether, when, or where the type of event the measure seeks to prevent might occur,” the ruling said. “However, in light of the fact that, were such an event to occur it would be extremely harmful, the court considers more important the fact that the state has not persuasively connected the denial of a stay – and, therefore, the continued halting of implementation of the measure – with a likelihood of such harm while the appeal is pending.
“In turn, neither has the state persuasively connected the grant of a stay – and, therefore, the immediate implementation of the measure – with a significant reduction in the likelihood of such an event occurring while the appeal is pending,” it said.
Jess Marks, executive director of Oregon Alliance for Gun Safety, which has worked to support the measure and defend it in court, said she’s glad there’s an expedited timeline for the appeal.
“Every day Measure 114 is delayed, Oregon lives continue to be at risk. Waiting is painful, but we remain steadfast and confident that the court will decide in favor of community safety.”
-- 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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