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Judge hears challenge to county gun control laws

Troutdale council supports plaintiffs


Does Multnomah County have the right to enforce its gun control laws in cities within its borders? That question was addressed Wednesday, July 9, when Multnomah County Circuit Judge Kathleen Dailey heard arguments both for and against. Dailey will make her decision in a few weeks, she said.

The lawsuit began shortly after the county passed a gun control ordinance in May 2013, when Roxanne Ross of Gresham and four others from East County filed a complaint against the county. The suit claims the county exceeded its authority with the ordinance and asked for a permanent injunction to stop the county from enforcing it.

But it's not about who has authority, said County Attorney Jenny Madkour.

“To the contrary, it is about firearms,” she said. “The media has touted that this is about county control, and some say it's not about firearms. But it is.”

No mention was made during the trial of the June 10 fatal shooting at Reynolds High School, but it's possible that the Multnomah County district attorney could, under the county gun ordinance, charge the family of shooter Jared Padgett, 15, if the investigation reveals the guns were not fully secured. Padgett killed himself after fatally shooting classmate Emilio Hoffman, 14, and wounding teacher Todd Rispler.

As reported earlier in The Outlook, the prohibition against allowing minors access to guns has never been enforced in the county, but it did enforce another provision of the ordinance when it charged Joseff Powell, 21, with violating the part of the law that prohibits anyone from carrying a loaded gun in public. Powell was arrested the day of the Reynolds shooting because he had brought a gun to the school to protect his sister, a student at the school, he said.

But Bruce McCain, attorney for the plaintiffs, said local government control is the main issue.

The city council of Troutdale, where Reynolds High is located, agreed and passed an emergency ordinance the night before the case came to court. The ordinance states that because the county “adopted an ordinance that purports to apply within the city of Troutdale,” the ordinance is necessary “to preserve the authority of the city to govern the city to greatest extent allowed.”

Troutdale Mayor Doug Daoust said the council passed the ordinance unanimously.

“The council was not challenging the specific subject of the county's gun ordinance,” he said in an email. “Our greatest concern was the potential erosion of city local control that the county ordinance more broadly represents.”

Daoust went on to say the council took emergency action so it could submit it to the court “in time for the judge to see our position as to protection of the city's Home Rule Authority.”

McCain tried to enter the Troutdale ordinance as an exhibit in the case, to which Madkour objected, but Dailey said she would decide later.

“They are telling the county to stay out of their business,” McCain said.

The powers of Home Rule counties came into question during Wednesday's court action since Multnomah is one of only nine Home Rule counties in the state. The other 27 counties are statutory, or general law, counties and can pass laws that affect only unincorporated areas of the county. McCain claimed that Multnomah wants to be a “super county” because it's trying to impose its will on incorporated areas.

“If they had followed the last 47 years and stuck to unincorporated areas, we wouldn't be here,” he said.

After the gun law was passed, Troutdale City Councilor Glenn White criticized the county for not getting more input from the cities, and Fairview Mayor Mike Weatherby said the cities were left out of the loop.

Letting the county override local control would only be opening the door to loss of municipal power, McCain said.

“They could say no plastic bags or it could be anything,” he said. “We want them to quit trying to tell us what to do. We need communication, not Big Brother.”

Troutdale Councilman Rick Allen said a couple of Troutdale councilors met with Multnomah County officials before the law was passed and objected to “some of the more radical gun control ideas.” He said they were not invited back.

“The interaction ended with Multnomah County deciding they would impose their ordinance without working with us any further,” he said.

Powell's arrest was the first time the county has enforced the gun ordinance, McCain said, but Madkour said the law has not been enforced because cities have their own police departments.

“In 2013 we passed a law to help local police that they could use if they wanted. There are a number of reasons why a law on the books is not enforced,” she said.

Madkour said she didn't see how the enforcement or application of the gun law applied to the plaintiffs.

“These five have no standing to make claims,” she said. “They attempt to stand in the shoes of local jurisdictions. Perhaps they would have cause to bring the case, but the plaintiffs do not.”

A similar claim, however, was rejected by Judge Cheryl Albrecht in May when she accepted a second filing of Ross' claim after the first one had been rejected. She wrote that gun owners in Gresham, Fairview and Troutdale must comply “with the panoply of local, state and federal laws” regulating guns, but they don't have to be gun owners or face prosecution to file a claim in court.

Madkour said there is no constitutional authority to limit the county's authority or its ability to legislate.

“Plaintiff's burden is to show that we don't have the authority to legislate, and they haven't shown that here today,” she said.

Although Dailey said there was no case law precedent for deciding the lawsuit, McCain suggested that she could set precedent with her ruling.

“I ask the court please to define what my clients' rights are,” he said. “All of us need to find out. How far can the county go?”