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Department of Justice files lawsuit against Yamhill and Harney counties, asking judge to render Second Amendment Sanctuary Ordinances null and void.

PMG FILE PHOTO - Attorney General Ellen Rosenblum announced last week that lawsuits had been filed against Yamhill and Harney counties after they passed SASO ordinances in the past six months.

Two counties will be held to account after the Oregon Department of Justice filed a lawsuit recently that claims so-called Second Amendment Sanctuary Ordinances (SASO) are null and void and that the state is the last word on gun laws.

Attorney General Ellen Rosenblum announced last week that lawsuits had been filed against Yamhill and Harney counties after they passed SASO ordinances in the past six months.

"Gun safety laws exist to help keep guns out of dangerous hands and keep people safe," Rosenblum said in a prepared statement. "A county commission simply doesn't get to override state law in this way. The laws of Oregon remain fully in force — and fully enforceable — notwithstanding these invalid ordinances."

The lawsuit asks circuit court judges in Yamhill and Harney counties for judicial review, essentially asking judges to strike down or invalidate the ordinances and affirm that the state alone has the power to enact and enforce gun laws. The lawsuit also asks the courts to nullify the tenet in the ordinances that makes officials who enforce state gun laws liable to prosecution or private lawsuits.

The Yamhill County Board of Commissioners voted 2-1 to pass its Ordinance 913 in April, with proponents Mary Starrett and Lindsay Berschauer saying it was necessary to counteract legislation at the state level such as Senate Bill 554, which established storage requirements for gun owners and restricted holders of concealed handgun licenses' entrance to some public buildings. The county ordinance took effect in June and it's lone opponent on the commission, Casey Kulla, said he expected it would be challenged eventually.

"I think it's clear that it was only a matter of time before the state responded in the form of a lawsuit from the DOJ," he said. "The ordinance didn't apply to any laws until SB 554 went into effect, so until then it was really a lot of hoopla for really nothing. All smoke, no fire."

The text of the DOJ lawsuit speaks specifically to the Yamhill County ordinance, which was patterned after ordinances passed in several other counties, but not named in the lawsuit.

"Ordinance 913 is in direct conflict with state law and exceeds the authority of Yamhill County," the lawsuit alleges. "As sovereign and consistent with its police power, the state has an interest in the uniform application and enforcement of its laws across the state, including in Yamhill County."

The lawsuit further claims that Yamhill County's ordinance is pre-empted by Oregon statute, "which bars ordinances and provides that a county lacks authority to regulate in the area of firearms absent of express authorization." The lawsuit takes particular offense with the wording in the Ordinance 913 that bars county employees from enforcing or utilizing county resources to enforce SB 554 or any other state statute relating to firearms.

"Ordinance 913 is in conflict with and impliedly pre-empted by (state statute) because the ordinance directs the Yamhill County sheriff and his deputies not to enforce state firearms laws enacted after February 2021 and prohibits the utilization of county funds and resources in the enforcement of state firearms laws enacted after February 2021," the lawsuit said, adding that under state law sheriffs "have a statutory duty to enforce state criminal laws, including SB 554."

The same goes for district attorneys, the lawsuit claims, and Yamhill County's insistence that its district attorney decline to enforce new gun laws is anathema to state statute.

"Ordinance 913 is in conflict with … the Oregon Constitution because it directs the Yamhill County district attorney and his deputy district attorneys not to enforce state firearms laws enacted after February 2021 and prohibits the utilization of county funds and resources in the enforcement of state firearms laws enacted after February 2021," the lawsuit reads. "When prosecuting violations of state law, district attorneys and their deputies are state officers and are duty bound to follow and enforce the laws of the state."

The lawsuit also insists that the county ordinance flies in the face of the Oregon Tort Claims Act, which mandates that legal claims against county employees be directed at the county itself and not against individuals.

"Ordinance 913 directly conflicts with the OTCA by creating a cause of action against county employees for a breach of a legal duty imposed by the ordinance, providing that any official, agent or employee of Yamhill County who knowingly violates this ordinance shall be liable to the injured party …," the lawsuit says.

"No officials should be frightened out of properly doing their job by the threat of illegitimate criminal charges or bogus lawsuits," Rosenblum said. "Although today's lawsuits are addressed to only these two Oregon counties, other counties have enacted similar illegal ordinances. These actions will hopefully send the message that we are prepared to preserve the rule of law across our state."

The county will fight the lawsuit

Starrett didn't waver when news of the lawsuit reached her.

"The county will defend its Second Amendment Sanctuary Ordinance (Ordinance 913), entitled 'In the Matter of Declaring a Second Amendment Sanctuary in Yamhill County' to reaffirm the county will expend no taxpayer resources enforcing unconstitutional laws that infringe on the rights of law-abiding gun owners," she said in a prepared statement last week.

Attempts to reach Berschauer for comment were unsuccessful, but Kulla said he expected his cohorts to resist the lawsuit.

"I haven't talked with our county counsel yet, but I expect we will have a conversation about whether we defend ourselves. It seems like the values of the majority of the commissioners would be to fight this," he said. "But you never know. I do think there's a chance the Oregon Firearms Federation would try and step in in defense of the county."

The federation's executive director, Kevin Starrett, is a relative of Commissioner Mary Starrett.

Background of Yamhill County SASO ordinance

Starrett and Berschauer said in April that 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. Attorney Tyler Smith, who advised Starrett and Berschauer on formation of the ordinance, 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.


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