By Jonathan Levinson (OPB)
A growing list of Oregon sheriffs are telling their constituents they won’t enforce voter-approved gun restrictions despite not yet knowing how some aspects of the law will work and not having a clear role in enforcing others.
In a Nov. 9 Facebook post, Linn County Sheriff Michelle Duncan said Measure 114, which 50.7% of voters approved the day before, is a terrible law for gun owners, crime victims and public safety. The measure would require a permit to buy a firearm and ban magazines holding more than 10 rounds.
“I want to send a clear message to Linn County residents that the Linn County Sheriff’s Office is NOT going to be enforcing magazine capacity limits,” Duncan wrote in the post, which as of Friday had been shared 12,000 times and garnered 9,300 comments.
Duncan was soon joined by Jefferson County Sheriff Jason Pollock, Wallowa County Sheriff Joel Fish and Union County Sheriff Cody Bowen who also said they would not enforce the new laws.
Pollock said he believes “the provisions in Measure 114 run contrary to previously decided judicial decisions.” Bowen said the law would also be a drain on resources and called it “another attempt at defunding the police at its finest.”
“To the people who chime in with me picking and choosing which laws I want to enforce or not enforce! Hear this!” Bowen exclaimed in his Facebook post. “When it comes to our constitutional rights I’ll fight to the death to defend them. No matter what crazy law comes out of Salem!”
Sheriffs point to short staffs
Measure 114 was passed by voters, not state lawmakers in Salem. Sheriffs are not lawyers and do not interpret the constitution — that is the role of judges.
Bowen and Pollock, as well as the Oregon State Sheriffs’ Association, did not respond to interview requests.
Duncan said her agency constantly has to manage scarce resources. She said that because a federal court might find magazine bans unconstitutional as early as this spring, she is choosing not to prioritize enforcement.
“I have a hard time saying that we’re going to use resources to go arrest people for something that has a high probability of being found unconstitutional very shortly,” Duncan said in an interview with OPB. “This is where I’m choosing to hold back my resources until that ruling is confirmed or denied.”
Duncan said if the Supreme Court rules the law is constitutional, she may have to rethink her position.
Several other sheriffs said they thought the law was poorly written and expressed hope it would be blocked by the courts, but stopped short of saying they would not enforce the provisions.
Marion County Sheriff Joe Kast said he anticipated the new law would add significant strain on limited resources and he would not focus investigations on magazine capacity issues.
The position of some Oregon sheriffs appears to put them at odds with the Oregon State Sheriffs’ Association, which said in a statement the law’s constitutionality will be decided by the courts.
“Any legal challenge could potentially result in the measure being stayed (suspended or a delayed implementation) by a court, but that is not a certainty,” the association said. “While this is a huge undertaking for Oregon law enforcement which is already under-resourced, OSSA will work diligently to implement this complex measure.”
The law requires a safety course and a permit to purchase a firearm. The state has not yet hashed out how the permit system will be administered, but it is possible it will be similar to the current concealed carry permitting process, which is administered by sheriff’s offices. Such an arrangement would likely add to their workload. Other aspects of the law would have less impact on sheriffs.
When the law goes into effect on Dec. 8, licensed firearms dealers will be prohibited from selling the magazines or be subject to a class A misdemeanor and risk losing their federal firearms license. Stores have a 180-day grace period when they can transfer or sell their stock to someone out of state. Individuals will also be barred from selling or giving away banned magazines.
State gun law violations can be investigated by any local or state law enforcement agency, but it would violate a person’s civil rights if deputies went door-to-door searching for high-capacity magazines, as some gun rights advocates have suggested might happen. Banned items or substances are more commonly policed in instances where officers find the item while investigating some other issue. For example, during a traffic stop, deputies might discover a contraband magazine.
Duncan’s claim that her deputies won’t enforce the law in such a situation rings hollow with some experts.
“If you pull over a car and the person has a record, you’re telling me that her office is not going to arrest that person? Particularly if that person is a person of color or poor or has a pretty long record,” said Jessica Pishko, a New America fellow writing a book about sheriffs. “That’s one where I’m like, ‘you can’t be serious.’”
Duncan said if her deputies arrest someone who also has a high-capacity magazine, it’s up to the district attorney to decide if they will press charges.
“But if I have someone who is not a felon or I’m not arresting for anything else, I’m not going to be arresting them for possession of a magazine or do an investigation into the possession of the magazine, whether it’s lawful or not,” she said.
Sheriffs, like other elected politicians, are beholden to voters and Duncan said her office has been inundated with messages from concerned constituents. Measure 114 passed by a thin margin, largely carried by broad support in the state’s more liberal, populous counties. Voters in 29 of Oregon’s 36 counties voted against it. In more rural parts of the state, like Linn and Union counties, the vote was more than 2-to-1 against.
Pishko said sheriffs who make sweeping statements about refusing to enforce gun laws when they haven’t been asked to do so are also likely being influenced by the fringe constitutional sheriff movement founded in 2011 by former Oath Keepers militia board member Richard Mack.
Mack’s organization adheres to the false belief that the sheriff is the most powerful law enforcement officer in the country.
“The president of the United States cannot tell your sheriff what to do,” he falsely claimed in an interview with the Oath Keepers, a far-right militia group whose top members have been charged with seditious conspiracy for their involvement in the Jan. 6 insurrection.
That contradicts the Constitution’s supremacy clause, which says federal law trumps state law. Similarly, thanks to a National Rifle Association lobbying campaign to prevent more liberal cities from passing strict gun laws, Oregon has what’s known as a firearm preemption law, meaning state gun laws supersede any city and county laws.
Further complicating constitutional sheriff ideology, the county-state relationship is far less rigid than the state-federal relationship.
“Counties are entirely a construct of states,” Portland State University political science professor Chris Shortell explained to OPB in a 2019 interview for a story about Oregon sheriffs and extremist ideology. “States create them, states could eliminate them, states can redraw their boundaries and as such, they are treated as simply a part of the state.”
This is not the first time Oregon sheriffs have flirted with extremist ideas. Eight Oregon sheriffs sent a letter to the Obama administration in 2013 saying they refused to enforce any new federal gun laws. That campaign was led by one of Duncan’s predecessors, then-Linn County Sheriff Tim Mueller.
Similar ideas were floated by sheriffs refusing to enforce Oregon Gov. Kate Brown’s COVID restrictions. Like these most recent refusals to enforce the high-capacity magazine ban, sheriffs were not being asked to enforce COVID restrictions in 2020.
The courts weigh in
In 2018, eight counties passed so-called Second Amendment Preservation Ordinances, giving county sheriffs authority to determine if state and federal gun laws are constitutional and barring county resources from being used to enforce them. Columbia County passed an ordinance claiming to nullify state and federal gun laws.
Those ordinances have not fared well in court. Harney County withdrew its ordinance after the Oregon Department of Justice petitioned a court to invalidate the law.
In that petition, Oregon Attorney General Ellen Rosenblum cited a state law requiring sheriffs to arrest and imprison “all persons who break the peace, or attempt to break it, and all persons guilty of public offenses.”
“Thus, a sheriff and deputies have a statutory duty to enforce state criminal laws,” Rosenblum wrote.
Yamhill County defended its ordinance, but county Circuit Court judge Ladd Wiles ruled with the state in July and invalidated the ordinance. The county appealed the decision, and if the appellate court rules with the state, it will apply to every county, nullifying all similar ordinances.
On at least one issue, a legal challenge to Oregon’s Measure 114 might succeed. After the U.S. Supreme Court ruled this summer that Americans have a right to carry a firearm outside their home, the court also ordered the United States Court of Appeals for the Ninth Circuit to revisit a ruling upholding California’s high-capacity magazine ban.
The California ban, as well as a similar law in Washington state, remains in effect while the court deliberates. Given the Supreme Court’s position, speculation is running high that the laws will be thrown out.
A federal court might get a chance to weigh in sooner. On Friday, the Oregon Firearms Federation, Sherman County Sheriff Brad Lohrey and a Marion County gun store owner filed a federal lawsuit against Gov. Kate Brown and Rosenblum. The lawsuit alleges Measure 114 infringes on Oregonians’ Second Amendment rights and asks a judge to toss the law or, at a minimum, issue an injunction preventing the provisions from being enacted. Alternatively, the lawsuit asked a judge to separate the magazine ban and rule on only that portion of the law.
The confusion has led to stratospheric firearms sales in the state and an even bigger background check backlog than usual. The Oregon State Police said Wednesday the daily average of firearms background checks had quadrupled, and several gun stores in Multnomah County have temporarily halted some services anticipating gridlock come December.
If a person buys a firearm from an out-of-state dealer, the firearm must be shipped to a licensed dealer in Oregon who conducts the background check and transfers the firearm to the purchaser. With the growing backlog, several dealers stopped accepting transfers from out of state, fearing the checks won’t be completed by Dec. 8 and the transfer could then potentially violate the new state law.
Despite the uncertainty, some Oregon sheriffs have taken a more measured tone.
Lincoln County Sheriff Curtis Landers pushed back Wednesday against the idea he or his colleagues could interpret the Constitution. Landers said in a statement that although he doesn’t agree with the new law, his office will enforce it.
“I have sworn an oath to uphold the laws of this state, regardless of my opinion,” Landers wrote, adding that that doesn’t mean deputies will be going door-to-door searching for magazines. “However, if we learn you have violated the law we may take action, just like we are responsible for doing for any other crime.”
FEATURED IMAGE: In this 2019 file photo, Sgt. Brandon White of the Multnomah County Sheriff’s Office puts a cable lock on a training Glock in Portland, Ore. The sheriff’s office gives out gun locks for free to anyone who wants one. (Jonathan Levinson / OPB)