By Ben Botkin
A Harney County Circuit Court decision allows Oregonians to continue to buy firearms before completing a background check.
Harney County Judge Robert Raschio issued his decision on Tuesday, preventing the state from enacting a background check requirement for firearm purchases. It is part of Measure 114, a law Oregon voters passed in November that is being litigated in Raschio’s court.
His decision is part of a wider temporary restraining order that prevents other parts of Measure 114 from going into effect while the lawsuit is pending. Measure 114 would enact a new permit system for people who want to purchase firearms that includes a required safety training course and certified instructors.
The decision maintains the status quo for Oregon’s firearm permit system, which allows gun dealers to sell firearms to buyers when Oregon State Police have not completed a background check within three days. Critics of the existing system call it the “Charleston loophole” because it allowed the perpetrator in a 2015 mass shooting in Charleston to obtain a firearm despite having a criminal record. In that shooting, nine people died in a church.
“Judge Raschio’s ruling puts the demands of the gun lobby ahead of public safety and the express will of Oregon voters,” Adam Smith, spokesperson for the Oregon Alliance for Gun Safety, said in a statement.
Measure 114 is intended to enhance gun safety in Oregon and make mass shootings more difficult. But opponents of the measure, including some rural sheriffs, argue that it infringes the constitutional right to bear arms and would require scarce law enforcement resources to run the permit system.
Since the law was passed, firearm purchases have soared, gun shop owners say, creating an even longer backlog of background check requests. Oregon State Police did not respond to a request for details on Tuesday.
The judge wrote in his decision that the background checks and permit system in the new law are intertwined and the “court has made no final determination on the constitutionality of the program.”
The court will address the question of whether the background check requirements of the new law can remain in place only if it determines that the permit system is unconstitutional, Raschio wrote.
The Harney County lawsuit was filed against the state by Gun Owners of America, based in Virginia, and a related organization, the Gun Owners Foundation. Other plaintiffs include Joseph Arnold and Cliff Asmussen, two Harney County firearms owners. Gun Owners of America says on its website it has more than 2 million members and lobbies for firearms owners to exercise the “right to keep and bear arms without compromise.”
A spokesperson for the plaintiffs didn’t respond to a request for comment.
Other parts of the measure are on hold as the case proceeds. Those include a ban on the sale of high-capacity firearm magazines with more than 10 rounds and the permit system.
Kristina Edmunson, a spokesperson for the Oregon Department of Justice, said the state plans to appeal Tuesday’s ruling to the Oregon Supreme Court.
The passage of Measure 114 has led to a rush to purchase firearms amid fears the state will not have a system in place to process permit applications. In November, the Oregon State Police Firearms Instant Check System Program, which conducts the background checks, received 85,000 requests for background checks, court records show. That’s more than three times the 25,000 average requests each month the state received through October.
The state has a backlog of unfinished background checks. About 40% of requests can be completed within minutes, but the remaining 60% cannot be processed automatically because of potential matches to a criminal history or incomplete information, the Oregon Department of Justice said in a Dec. 22 memorandum filed in the case.
That memorandum said about 37,000 permit applications need staff review and state staff are reviewing background checks requested 34 days ago. In 2019 and earlier, there was no backlog. State police staff cleared all pending requests each day, the memo said.
Oregon State Police spokespeople didn’t respond Tuesday to a request for updated figures.
Since 2018, the state’s background check system has prevented more than 4,600 felons and more than 2,000 people on probation from illegally buying firearms, the memo said.
A federal court is handling a separate suit against Measure 114. In a ruling on that case earlier this month, U.S. District Judge Karin Immergut said Oregon can postpone the permit requirements after the state asked for a delay so it can set up a system. But Immergut ruled that other parts of the measure, including the ban on sales of high-capacity magazines with more than 10 rounds, can go into effect as scheduled on Dec. 8.
The Harney County judge’s order took precedence over the federal order, though. The Oregon Supreme Court declined to intervene at the request of Attorney General Ellen Rosenblum and the Oregon Department of Justice.
State officials have asked the federal court to give the state until March 7 to prepare a permit system. The Harney County judge has said he’ll have a hearing from both sides when the state’s permit system is ready.
This story was first published in the Oregon Capital Chronicle.
