The Dundee City Council is poised to follow the lead of the Yamhill County Board of Commissioners and other government bodies in the state in adopting a Second Amendment Sanctuary Ordinance.
Begun this summer at the behest of Mayor David Russ, consideration of the ordinance has experienced numerous starts and stops along the way. The ordinance's language closely resembles that language adopted by the board of commissioners and says the city will not recognize, enforce or expend funds fostering any limitations on gun ownership adopted by the Legislature since February of this year.
The city's legal counsel drafted the ordinance at the behest of Russ and councilors Tim Weaver, Patrick Kelly and David Ford.
As drafted (and edited for brevity and clarity), the ordinance says, "No agent, employee or official of the city of Dundee … while acting in their official capacity, shall knowingly and willingly, participate in any way in the enforcement of any extraterritorial act; utilize any assets, city funds or funds allocated by any entity to the city, in whole or in part, to engage in activity that aids in the enforcement or investigation related to personal firearms, firearm accessories or ammunition."
The ordinance continues: "All local, state and federal acts, laws, rules or regulations, originating from jurisdictions outside of the city of Dundee — which restrict an individual person's constitutionally protected right to keep and bear arms, including firearms, firearm accessories or ammunition — are for all purposes under this ordinance defined as extraterritorial acts. Such extraterritorial acts shall not be enforced by the city of Dundee agents, employees or officers and shall be treated as if they are null, void and of no effect in the city of Dundee."
The council approved the first reading of the ordinance in late August, then scheduled it for a second reading and full adoption at a meeting slated for two weeks later.
"Since the vote on the motion to adopt the ordinance at the Sept. 7 meeting was a tie on a 3-3 vote, the motion failed," said City Manager Rob Daykin. "One of the councilors (Kelly) that expressed support was absent at that meeting."
Russ and councilors Tim Weaver and David Ford voted for approval of the ordinance, while councilors Jeanette Adlong, Storr Nelson and Ted Crawford voted in opposition. The ordinance will come up for another vote on Sept. 21.
Russ' reasons for introducing the ordinance were simple.
"Violation of my constituents' constitutional rights by the federal and state government," he said in an email. "To me, any action that moves to ensure, and protect, the constitutional rights of my constituents is absolutely necessary. The bottom line is that the county sheriff is not the primary law enforcement entity in Dundee. Therefore, the only way to ensure that my constituents are protected is to pass a local ordinance."
Attempts to elicit comment from councilors Weaver, Kelly, Ford, Adlong and Nelson were unsuccessful as of press time Friday, Sept. 17. Crawford's position on the ordinance, however, was abundantly clear.
"It's not needed, and it's highly questionable whether it's enforceable from a state law preemption standpoint," Crawford, an attorney, said. "It's not up to city councils to decide whether to selectively enforce state laws. We have a process to challenge state or federal laws through the courts or through ballot initiatives. Approximately $5,000 to $7,000 in legal fees have been used to draft and redraft this ordinance. What a waste of taxpayer money!"
Adoption of the ordinance could present some problems for the city and the agency primarily responsible for the safety of the town and its residents — the Newberg-Dundee Police Department — as well as the entity that insures the city, but Crawford said the city appears on firm legal ground as far as insurance goes.
"Dundee's insurance carrier (CIS) just issued guidance to cities throughout Oregon that stated if a city passes an ordinance that requires nonenforcement of a law and a suit is brought against the city that includes monetary damages, the insurance would cover the city's legal costs," he said. "(A) key point, from the insurer's perspective, is that the ordinance does not require Dundee officials to break a law — just that it requires them to not enforce a gun-related law passed after the date indicated in the ordinance."
Daykin concurred with Crawford and further explained the insurance aspect of the issue.
"CIS will not provide coverage where officials purposely violate state law," he said. "Two controversial provisions were removed from the ordinance that provided for fines and civil penalties against officials who violate the ordinance — which was also recommended to be removed by CIS."
The city conferred with its legal counsel and NDPD Chief Jeff Kosmicki as part of fine-tuning the ordinance, but that may not remove all cause for concern. It presented Kosmicki with a scenario where an NDPD officer was dispatched to a home in Dundee and while interviewing a resident noticed a shotgun in the corner of the living room or a handgun on the kitchen counter. Under the ordinance, Kosmicki was asked, wouldn't the officer be barred from citing the homeowner under Senate Bill 554, adopted after February of this year, for improper storage of a firearm?
"If this SASO passes, and with the example you have provided, you are correct," Kosmicki said. "NDPD is being asked not to enforce or spend any money enforcing the law in that scenario. However, the penalty section for an officer who enforces a new gun law has been removed from the Dundee SASO ordinance. This provides some discretion for an NDPD officer who enforces any new gun law enacted after February 2021. To clarify, there may be a scenario in the future that we could take action on if it were appropriate."
Kosmicki added that the ordinance could require additional training for officers: "If this ordinance passes, we will make sure the officers understand it."
Officers may come to understand the ordinance, but Crawford said little outreach was done to explain it to the town's citizenry.
"Not really," he said. "I reached out to a couple of neighbors and they testified against the ordinance. A couple of Dundee citizens (no more than three) testified for the ordinance."
Kosmicki said that ultimately the ordinance allows officers to determine whether it is appropriate to cite or arrest an individual who runs afoul of SB 554 or any other gun-related law adopted since February.
"Officers use discretion every day during the course of their work, and I think it's paramount to good policing," he said. "Our NDPD officers use deductive reasoning and compassion when taking complaints or investigating crimes. That's an element in police work that makes this job tough: it's easier to 'enforce the laws,' it's tougher to do what is right for each situation because there can be so many variables."
Kosmicki declined to say whether he supported the ordinance, but added "I support and defend the Second Amendment, and I understand the argument for the SASO. This is what the elected officials representing the city of Dundee are asking us to abide by. I have talked with legal counsel representing Dundee, who believes that the changes to this SASO (are) legal, so I would have no objection following it."
The council's Sept. 21 agenda includes the language of the ordinance. It can be found at https://bit.ly/3AnbYcS.
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