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In a 2-1 vote the Board of Commissioners says county resources cannot be used to enforce state or federal gun laws adopted after February

BerschauerKullaStarrett

In late March the Oregon Senate passed Senate Bill 554, which bans guns from state buildings and allows local governments, universities, public school districts and other jurisdictions to designate structures as public buildings, ban those with concealed handgun licenses from entering those buildings while armed and cite those who do so unlawfully.

The bill has been forwarded to the Oregon House for consideration.

A few days later the Oregon House introduced House Bill 2510, which would require that guns be stored with trigger or cable locks, in a locked container or in a gun room. Someone found to be in violation of the law could be charged with a Class C violation and ordered to pay a maximum fine of $500, unless someone younger than age 18 obtains access to an unsecured firearm, in which case it would amount to a Class A violation with a maximum fine of $2,000.

Less than a week later, the Yamhill County Board of Commissioners voted 2-1 to adopt a so-called Second Amendment sanctuary ordinance forbidding county agents from administering any state gun laws passed after February of this year, including SB 554 and HB 2510.

Commissioners Mary Starrett and Lindsay Berschauer, who pushed for adoption of the resolution from the outset, voted in favor. Commissioner Casey Kulla voted against the ordinance, which will become effective in late June.

County agents, sheriff's deputies for example, who violate the county ordinance could be sued in civil court. The county, however, would not be responsible for mounting a defense on their behalf. State agencies that operate in conjunction with the county, such as the district attorney and the sheriff, could enact policies that direct staff members who are county employees to uphold state firearm laws regardless of the ordinance. Ultimately, the voters must decide if they agree with the sheriff and district attorney's policies and vote or recall them from office if they disagree.

In addition, the ordinance could be challenged via a referendum from the electorate, Kulla said, adding that it will not be sent to the voters by the commission.

"I believe that voters would need to collect signatures in a number equivalent to 2% of the votes cast in our county in the most recent gubernatorial election," he said.

Yamhill County was not the first to establish such measures, casually known as SASOs for Second Amendment Sanctuary Ordinances; Umatilla and Columbia counties adopted similar measures in November, while Coos and Clatsop counties turned back the ordinances last year.

Whether adopting an ordinance that orders county employees to ignore state and federal firearm laws is legal will likely be a question for the courts. Some legal experts say the ordinances conflict with state statutes that give only the Legislature power to regulate firearms in the state, as well as voids any local ordinance that seeks to regulate or restrict firearms and ammunition and could possibly run afoul of federal statutes as well.

Attorney Tyler Smith, who advised Starrett and Berschauer and who helped craft the ordinance adopted in Columbia County, spoke in favor of the Yamhill County ordinance at the behest of the two commissioners. He argued that the SASOs don't violate any laws because they address enforcement of firearm laws rather than creating or remove existing regulations.

Starrett and Berschauer said passage of the ordinance was necessary to stem the tide of current and future anti-gun legislation emanating from both the state and nation's capitols.

In a Feb. 19 letter submitted with the proposed ordinance, Berschauer wrote that she raised the issue because "unconstitutional gun control bills are moving quickly in Salem, so we have to act on this."

Berschauer testified in February before the Senate Committee on Judiciary and Ballot Measure 110 implementation, which was hearing arguments on SB 554. The first-term commissioner told the committee that as a sexual assault survivor and a single mother, she obtained a concealed handgun license for protection and that SB 554 would create a "minefield of gun-free zones" across the state.

"We are not the cause of gun violence," she told the committee. "Everyone wants safe communities, but you are targeting the wrong people in this bill."

In a March 4 Board of Commissioners meeting held online, District Attorney Brad Berry questioned the need for an ordinance that allows people carrying concealed weapons to enter public buildings.

"We have never filed a case," he said. "So, I want to be sure that as you guys look at this that we don't create a solution that doesn't have a problem. … We have not had this issue come up before and I think that's important for you to understand as you discuss limitations or discuss approaches to this, just to be fair."

Berry reminded that commission also that he and his deputies are sworn to uphold state law, not county ordinances, because he is considered a state official. Smith countered that administrative personnel within the DA's office are county employees and would be required to follow the ordinance.

Sheriff Tim Svenson mirrored Berry's comments, confirming that his office has not arrested anybody for attempting to enter a public building with a concealed weapon.

Smith suggested that in counties that adopted SASOs, sheriffs, district attorneys and other law enforcement agencies would be responsible for meeting to decide what tenets of state law they would enforce and which ones they would not.

Svenson said he has reached out to sheriffs in other counties to see how they are handling adoption of SASOs locally. What he found was that sheriffs, while aware of the ordinances, are waiting for the courts to rule before they determine how they will administer the ordinances.

The lack of specifics in the proposed ordinance caused Kulla concern: "Really the crux of this is for me … I'm trying to find out what this does and how it affects our sheriff and his current ability to use discretion … And I want to know why we are proposing to expose our county employees to criminal liability and civil liability for jobs we've told them to do under the guidance of our DA and our sheriff."

He suggested that the ordinance be amended to say the county will consider all state laws null and void, "extra-territorial" and to have no effect instead of saying the sheriff's office simply cannot enforce the laws.

Berry questioned whether there was a downside to having the courts consider whether a county ordinance meets constitutional muster, to which Smith answered that the state cannot regulate how a county's officers do their jobs. He used as an example federal immigration and drug laws that some counties have chosen not to enforce.

"It's essentially the same. … Where states and localities may or may not be enforcing laws that were generated from outside their jurisdiction that they could enforce but they choose not to," he said.

Berry and Svenson countered that their offices can only enforce state, not federal laws. "I don't have that ability," Berry said. "I couldn't do it if I wanted to."

The commissioners' first meeting on the subject stretched on for several hours. At its end Berschauer agreed to make some amendments to the proposed ordinance to reflect Barry and Svenson's concerns. When the commission met March 18, however, those amendments had been removed because some of the language "didn't sit very well" with her, Berschauer said, adding that as amended the ordinance wouldn't keep the sheriff and district attorney from "doing whatever they want" and that legislative oversight of county ordinances should rest with the commission.

She added that the commission had done its due diligence and that how the DA and the sheriff proceed with enforcing the ordinance must be done through written directive and published so the commission and the voters can push back against if they choose.

"I am not trying to remove discretion, I am trying to make sure that the discretion going forward is very transparent and people who are CHL holders or lawfully abiding firearms owners know exactly where they stand in the county," she said. "And it also allows the public to be part of that conversation as well as the commissioners."

County counsel Christian Boenisch suggested the board hold over possible adoption of the ordinance until Berry and Svenson, who were both absent from the March 18 meeting, had an opportunity to give input on the amendments that were removed from the ordinance.

Board chairwoman Starrett insisted that returning the oversight language to the ordinance was necessary because otherwise it would "neuter" the ordinance and leave discretion on enforcing the ordinance up to the sheriff and district attorney.

Boenisch argued that indeed, ultimately, that was the question: "Does the board of commissioners have the authority to set sideboards on the discretion of the sheriff or the DA?"

The commissioners and county staff debated the ordinance for some time before Starrett grew weary of the discussion and called for a first reading of the ordinance.

"We've had a number of weeks of discussion, we've looked at this up one side and down the other," she said. "We've considered it, we know that the ramifications of having to do something like this, unfortunately, because at the … end of the day we're backed into a corner in terms of protecting our Second Amendment rights."

Kulla reiterated that he believes the DA and the sheriff have discretion on enforcing state laws and the ordinance does not allow that, to which Berschauer called for the question and Starrett mentioned that the commission had received more than 1,200 emails in support of adopting a SASO in Yamhill County.

"This is for all the law-abiding people who have gone through and jumped through every hoop that we continue to add, and that includes background checks, fingerprinting, firearms training, paying a fee, paying a fee every couple of years to maintain the right to carry a firearm as a law-abiding citizen," she said. "So this is for all those people who feel that they're not being heard in Salem, they're not being heard in Washington, D.C., and that the Second Amendment still does mean what it says. The right shall not be infringed, and that is why I am really looking forward to be able to pass this in Yamhill County."

The vote was 2-1 in favor of the first reading, Kulla casting the lone nay vote.

Two weeks later the commission heard the second reading and voted 2-1 to pass the ordinance. Kulla again was the lone nay vote, arguing that what the commission had ratified was a flawed ordinance.

"This ordinance is illegal under state law," he said. "These have never been enforced and limiting what the sheriff and DA can do is not the purview of the commissioners."

The ordinance will go into effect 90 days after its adoption.


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