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Councilor requests delay until a lawsuit against Yamhill County over its Second Amendment Sanctuary Ordinance makes its way through the courts.

DREAMSTIME PHOTO - The Dundee City Council was on the precipice of adopting a Second Amendment Sanctuary Ordinance in October when word came that the Oregon Department of Justice had filed a lawsuit against Yamhill and Harney counties, claiming their SASO ordinances were illegal and that the state has the last word on gun laws.

The Dundee City Council was on the precipice of adopting a Second Amendment Sanctuary Ordinance (SASO) in October when word came that the Oregon Department of Justice had filed a lawsuit against Yamhill and Harney counties, claiming their SASO ordinances were illegal and that the state has the last word on gun laws.

The development gave some Dundee councilors pause as the city's ordinance closely mirrors the document adopted by the Yamhill County Board of Commissioners a month earlier.

"(The) council did not take a vote," City Manager Rob Daykin said. "Councilor (David) Ford, one of four councilors supporting the SASO, expressed his interest in seeing how the lawsuit initiated by the state attorney general against Yamhill County over their version of the SASO ends to determine whether the Dundee SASO should be amended or not."

The council chose to table adoption of the ordinance until the state lawsuit is settled, which could take months, if not years, to be resolved.

"I did not favor tabling," Russ said in an email last week. "We could have passed the ordinance and repealed it if the county had trouble."

The mayor added that the council has discussed how long an ordinance can be tabled after the first reading. "We decided that indefinitely is not appropriate," he said. "So, a potential rewrite is already in consideration. However, doing so prior to the completion of the county case would be potentially wasteful and ineffective."

While he would prefer not to wait to take up the question again, Russ acknowledged that "To do things right, they need to happen according to the proper process. This often requires patience and perseverance. I stand for and do what is right."

A rocky path toward adoption of the ordinance

Attempted adoption of the SASO ordinance in Dundee has experienced many starts and stops over the past four-plus months. Begun last summer at Russ's encouragement, the language of the ordinance 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 language of the ordinance at the behest of Russ and councilors Tim Weaver, Patrick Kelly and 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. However, the Sept. 7 vote ended in a 3-3 tie as Kelly was absent and the motion failed. The council intended to bring it to another vote on Sept. 21, only to be advised by the city attorney that that council's intent to reconsider the ordinance later needed to be voted on at that time.

So, the council started over with a first reading on Sept. 21 and had planned to hear the second reading and vote on Oct. 5. Then the Department of Justice's lawsuit surfaced.

Russ and councilors Weaver, Ford and Kelly have supported the adoption of the ordinance, while councilors Jeanette Adlong, Storr Nelson and Ted Crawford have voted in opposition.

Russ' reasons for introducing the ordinance are simple.

"Violation of my constituents' constitutional rights by the federal and state government," he said in October. "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."

Crawford, an attorney, countered Russ's argument.

"It's not needed, and it's highly questionable whether it's enforceable from a state law pre-emption standpoint," Crawford 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 re-draft 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 non-enforcement 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."

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. The Graphic 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, we 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 has been 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."

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