Measure 114 Injuction
Measure 114 Injuction
Measure 114 Injuction
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Verified Correct Copy of Original 12l15/2022._
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Markwitz Herbold PC
Attn: Harry Wilson
Special Assistant Attorneys General
145 SW Broadway, Suite 1900
Portland, OR 97201
Parties:
The court will issue a Preliminary Injunction under Oregon Rule of Civil
Procedure (ORCP) 79(A) on Ballot Measure 114 (BM 114) section eleven
known as the large capacity magazine prohibition until a full trial can be
held on the Complaint for Declaratory and lnjunctive Relief.
The court will maintain the Temporary Restraining Order under Oregon
Rule of Civil Procedure (ORCP) 79(A) on BM 114 sections one through ten
until the state provides notice that it is prepared to deploy a "Permit to
Harney Co. Courthouse, 450 N. Buena Vista #16, Burns, OR 97720; PHONE (541)573-5207 FAX (541)573-5715
Grant Co. Courthouse, 201 S. Humbolt St., P.O. Box 159, Canyon City, OR 97820; PH (541)5751438 FAX (541)575-2165
www.courts.oregon.gov
Samantha Dowell, Trial Court Adminlstrator
2-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
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Purchase" program. Upon receipt of notice, the court will hold a preliminary
injunction hearing within 10 days to determine if the program can
constitutionally be deployed.
The court cannot rely on a federal stay. There is a separate analysis and
identified right under Oregon law. The court adheres to its oral findings
from December 6 and 13, 2022.
The court must find that the facts as applied to the law show to a clear
conclusion under the factors of ORCP 79. See Wilson v. Parent, 228 Or
354, 369 (1961). The clear conclusion must find that the Plaintiffs have
established a likelihood of success on the merits which is weighed against
the other factors under ORCP 79.
Factual Findings
Findings one through 23 are from the pleadings and attached exhibits for
the temporary restraining hearing held December 6, 2022. Findings 23
through 37 are from the preliminary injunction hearing and associated
exhibits held on December 13, 2022:
6) The court finds the Colt multi-shot revolver was developed in the
18308 and appeared in the pre-Civil War West. Marshall Dec., ex.
2 (Declaration of Robert Spitzer), pg. 25.
9) Since 1949, when the first mass shooting occurred, there have
been 3O mass shootings resulting in 1O or more deaths. ld. at 6.
None occurred in Oregon. ld. Of the mass shooting with fatalities
1
ORS 166.201(6): "Machine gun" means a weapon of any description by whatever name known, loaded
or unloaded, which is designed or modified to allow two or more shots to be fired by a single pressure on
the trigger
2
ORS 166.273: Unlawful possession of machine guns, certain short-barreled firearms and firearms
silencers. (1) A person commits the crime of unlawful posseSSIon of a machine gun, shortbarreled rifle,
short-barreled shotgun or firearms Silencer if the person knowingly possesses any machine gun, short-
barreled rifle, shortbarreled shotgun or firearms silencer. (2) Unlawful possession ofa machine gun, short-
barreled rifle, short-barreled shotgun or firearms silencer is a Class B felony (3) A peace officer may not
arrest or charge a person for violating subsection (1) of this section if the person has in the person's
immediate possession documentation showing that the machine gun, short-barreled rifle, shortbarreled
shotgun or firearms silencer is registered as required under federal law. (4) It is an affirmative defense
to a charge of violating subsection (1) of this section that the machine gun, short-barreled rifle, short-
barreled shotgun or firearms Silencer was registered as reqUired under federal law. [1989 0.839 §13a; 1997
0.749 §8; 1997 0.798 §1].
5-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
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10) There have been 69 mass shooting events involving the death of 6
or more people from 1990 to 2017. 64% of those events involved
large capacity magazines, or 44 over that 27-year period. ld. at
44-49. The exhibit states, "[a]lthough 69 is a horrific number of
incidents, for statistical purposes, it is a relatively small number
and limited the power to detect significant associations...
Moreover, because of suboptimal statistical power, there is also
the possibility that the magnitude of the effects detected was
overstated" regarding the use of large capacity magazines in mass
shootings. Id. at 49-50
12) "ln total, 1,460 people were injured or killed over the 37-year
period" in mass shootings from 1981-2017. Id. at 54. Harney
County has a population of 7495 people.
15) The remainder of the study only looks at Full Automated Weapon
bans and cites by the author of the Declaration as making claims
of public policy benefits from large capacity magazine bans. ld. at
66. The study stated it could not create a distinct statistical
evaluation of whether such bans have an independent impact on
mass shootings from restrictions of the action of the firearms. Id.
at 6667.
6Opinion Letter Re Arnoid, et al, Plaintiffs v. Kati Brown, et al, Defendants.
18) The mean annual rate of mass shootings in Oregon per 1 million
population is .06 and of fatalities is .30 per million of population.
Id. at 24. The data is not linked large capacity magazines usage.
ld. at 17.
20) Marshall Dec., ex. 6 does not apply to large capacity magazines.
21) Marshall Dec., ex. 7 (Declaration of Ryan Busse) states that "many
widely available guns are designed with universal magazine
acceptance. Many handguns can accept a magazine within 15 to
20 plus rounds...Firearms manufactures...can easily modify a
'high capacity' magazine into one that will accept only 10
rounds..." Marshall Dec., ex. 7 at 4. The most popular self
defense firarms "in history" (1911 style pistol) come with standard
magazines of seven to eight rounds. ld. The model can be
adapted by interchangeable magazines to hold more than 1O
rounds. Id. Additional magazines can be purchased at a minimal
cost. ld. at 5.
24) BM 114 is impacting the ability for firearms dealers to stock their
stores. Midway USA, a national distributor of firearms, is issuing
the following: "Order Contains Restricted Products. These
products cannot be included in your order clue to the following:
Oregon has restricted the sale of magazines that have a capacity
8-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
more than ten roundse.g., those with floor plate or end plate."
Plaintiffs Preliminary injunction Hearing (PlH) ex. 1. Plaintiffs PlH
ex. 11 shows the same result with other manufacturers.
28) Mr. Callaway also testified that fix plates on magazines diminish
the life of the magazines since they cannot be maintained. The
defendants raised the length of magazine life as part of their
analysis of why BM 114 has no impact on current large capacity
magazine owners. Mr. Callaway described that the normal
approach of cleaning magazines for safety and functionality is to
remove the end plate after every second use to clean out the
grime and oil the spring mechanism. He testified it was not
possible to do the same cleaning process with fixed end plates
thus significantly diminishing the product's use potential. Mr.
Yurgealitis described using air compression, cleaning fluid baths
and ultrasound technology to clean those mechanisms, a process
which is time consuming, requires special equipment and is
expensive in comparison to detachable face plate cleaning
9-Opinion Letter Re Arnold, et ai, Plaintiffs v. Kati Brown, et al, Defendants.
design.
30) Mr. Yurgealitis noted that there are magazines for the commercial
market with magazine restrictions. The otherjurisdictions do not
have adaptability restrictions. As he testified, in direct testimony,
there is "no magazine on the market that cannot be modified"
because of the floorplate.
31) Dr. Brian DeLay testified that the development of firearms was
significant between 1860 and 1872. He, also, submitted a
separately filed declaration on December 12, 2022. The testimony
was crafted to eliminate the time and effort made in that
development. He testified that during Polk's War of 1846 to 1848,
multi-capacity revolvers and rifles were in use and for sale to the
private market. Emigrants on the Oregon trail had the same types
of firearms. Large capacity magazines protypes were in
development since 1580, though not generally in the marketplace
largely due to a lack of functional stability for use by the public.
But, "almost certainly" the framers and adopters of the Oregon
Constitution would have been aware of those developments and
the ongoing developments in firearm technology. The Kopple Law
Review article comes to the same conclusion about the multi
round technology development and public knowledge around
statehood. Plaintiffs PIH ex. 4. As does the Hlebrinsky
Declaration on the technology of that timeframe. Plaintiffs PIH, ex.
7. All these experts agree that there was no clear distinction
between private and military use at the time of statehood. Dr.
DeLay did testify that most private gun manufacturers were
angling for military contracts but would sell any firearm to private
citizens in they could afford one. Private citizen purchases
supported their own self-defense and defense of the state in the
form of militia activities. Meriwether Lewis bought his large
capacity magazine weapon for the expedition. The Hornback
exhibit bolsters this factual finding regarding the broad scope of
10Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
32) Dr. DeLay testified there were no historical antecedents in the law
banning any type of firearm in 1857 to 1859. Hlebrinsky, also,
finds that there were no historical antecedents. Plaintiffs' PlH ex.
9. DeLay and Hlebrinsky agreed laws banning particular
possession of types of firearms did not begin generally until the
20th century, postdating statehood.
33) Magazines are an integral part of firearms. gee Plaintiffs PlH ex.
6, at 1225. Limiting magazine sizes has a direct impact on who
can use a firearm in self-defense. Weaker individuals cannot use
larger caliber firearms due to the recoil impact for self-defense.
Weaker individuals compensate for the inability to use larger
caliber ammunition with by large magazines. Id. at 15-16.
With those facts, the role of the judiciary is to determine whether Ballot
Measure 114, section 11 exceeds the legal limits of the people's authority
under the Oregon Constitution. See Elkhorn Baptist Church v. Brown, 366
Or 506, 510 (2020).
Oregon Constitution provides the right for the people "to bear arms for the
defense of themselves, and the state". Oregon Constitution Article l,
section 27.
3
While this court disagrees with some of the factual conclusions of U S. District Court Judge Karin
Immergut, which are not binding on Oregon state courts, she Is analyzing the measure under the Second
Amendmentjurisprudence. This court does not reach that analysis since there is a clear preliminary
showing that the measure is unconstitutional under Oregon Constitution Article l, section 27 by reading
the prowsron and Oregon jurisprudence related to the constitutional protection provided to the citizens of
Oregon to "bear arms for the defense of themselves, and the state".
4
The Second Amendment to the U.S. Constitution reads "A well-regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Plainly
read, the Second Amendment right to bear arms is captured in the "and the state" language of Article l,
section 27.
12Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
constitutional guarantee, the court declared that its task was "to
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unduly frustrate the right to bear arms. l_q. at 38. ("...the legislature may
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The Supreme Court indicated that total bans on types of weapons and
firearms used for self and state defense violates Article l, section 27. fl. at
40-41 quotinq State v. Delqado, 298 Or 395 at 403-404 ("The problem here
is that ORS 166.510(1) absolutely prescribes the mere possession or
carrying of such arms [switchblades]. This the constitution does not
permit").
The evidence shows the distinction the defendants are trying to draw
between firearms and magazines is a fiction. Firearms do not function
without magazines. An analogy would be making a distinction between a
car and its engine.
ORCP 79 Analysis:
With this constitutional analytical framework in mind, the court will turn to
the requirement of ORCP 79(A)(1)(a) for a preliminary injunction.
5
The Oregon Supreme Court, in its early interpretations of the Oregon Constitution ask the lower courts
to consider "what did those conservative pioneer citizens have In mind." Jones v. Hoss, 132 Or 175, 178-
179 (1930).
14-Opinion Letter Re Arnold, et ai, Plaintiffs v. Kati Brown, et al, Defendants.
Application of the law to BM114 must lead the court to a clear conclusion
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that those factors are met preliminarily. See Wilson v. Parent, 228 Or 354,
369 (1961).
The plaintiffs have produced such clear and persuasive evidence. The
defendants evidence bolsters the clarity of the court's determination.
(1)Likelihood of success.
BM 114, section 11 will dramatically change the rules on law abiding
citizens who currently own weapons or wish to purchase weapons with
large capacity magazines. The vast majority of gun owners are responsible,
careful citizens with a great deal of respect and care for their firearms and
only use them for law purposes including selfdefense.
The large capacity magazines provisions will go into effect unless the court
issues a preliminary injunction immediately impacting their constitutional
right to bear arms.
Section 11 prohibits any fixed (built into the gun) or detachable (external
clips) magazines that hold over ten rounds of ammunition. "Large-capacity
magazine" means a fixed or detachable magazine, belt, drum, feed strip,
helical feeding device, or similar device, including any such devicejoined or
coupled with another in any manner, or a kit with such parts, that has an
overall capacity of, or that can be readily restored, changed, or converted
to accept, more than 1O rounds of ammunition..." BM 114 section 11(d).
6
Section attached as Exhibit
11 is 1 of the Defendants' response to Plaintiffs' motion for a temporary
restraining order.
15-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
The prohibition has an exception for "ammunition feeding device that has
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The section requires licensed gun dealers cease sales immediately and
within 180 days to alter or divest from all banned items. BM 114, section
11(3).
The Oregon Supreme Court has held modern equivalents to the weapon
today is "substantially different from its historical antecedent" and that the
drafters were "aware that technological changes were occurring in
16Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
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The caselaw does not suggest that the firearms development is frozen in
time at founding as is argued by the defendants. In fact, the courts have
assumed development over time. As such, the court finds that the firearms
today are the direct decedents of the firearms from the timeframe of
statehood: multishot handguns and rifles. The type of magazine is
essential to the protective power of the firearm as was testified to by one of
the defendants' witnesses.
The right to bear arms included military firearms used for state and self
defense at the time the provision was drafted. 7 As noted, large capacity
magazines predated the automation and mass production of metals. Large
capacity magazines existed in the 18303, nearly two hundred years ago.
The type of firearm with a large capacity magazine was known and used for
self-defense at statehood and would have been understood to be firearm
7
State v. Kessler 289 Or. at 369, 614 P.2d 94, the court held: 'Firearms and other hand-carried
"In
weapons remained the weapons of personal defense, but the arrival of steam power, mechanization, and
chemical discoveries completely changed the weapons of military warfare. The development of powerful
explosives in the mid-nineteenth century, combined with the development of mass-produced metal parts,
made pOSSIble the automatic weapons, explosive, and chemicals of modern warfare P Cleator, Weapons
'
of War 153177 (1967) Oreqon State Shootlnq Ass'n v. Multnomah Cntv., 122 Or. App. 540, 54546,
858 P.2d 1315, 131920 (1993). Automatic weapons are banned in Oregon as are other military grade
weapons.
Kessler subject matter was billy clubs and not firearms. All discussions regarding firearms is dicta.
17-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
being developed for militia usage and self-defense. See Christian, 354 at
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The court finds that magazines indistinguishable from the firearms they
power and are protected weapons and Ballot Measure 114, section 11 acts
on a prohibition on firearms and their protected uses under Article l, section
27.
c) Public safety
8
Kessler found that the term "arms" in Article l, sec 27 are weapons used by militia and for selfdefense
maintained by the indIVIdual. 289 at 370 Kessler also announced that "regulation is valid If the aim of
"
public safety does not frustrate the guarantees of the state constitution Id.
9
See Plaintiffs Motion Pg. 16 on firearm development. The Defendants have not shown that large
capacrty magazmes are "advanced weapons of modern warfare", fl Defendants' Response, pg. 10
Quoting Kessler at 369. The court weighs that assertion against the ubiquitous nature of large capacity
magazine in distribution to the public.
18Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
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While the preamble of the ballot measure states it promotes public safety,
the court finds from both sides' pleadings and exhibits, it does not do so in
any measurable way. Their primary article states the restrictions on large
capacity magazines seems to have an effect on the outcome of mass
shooting events, but the sample size is too small to say definitively.
Factual finding 17. Correlation does not equal causation.
Further, the court finds that there is less than a 1 in 1,000,000 chance of a
person being a fatality in a mass shooting in Oregon, and even less with an
offender who is using large capacity magazines. 1°
That the large capacity magazine bans promote public safety is mere
speculation." The court cannot sustain a restraint on a constitutional right
on mere speculation that the restriction could promote public safety.
Certainly, a court cannot use a mere speculation in determining guilt in a
criminal case, damages in a negligence case, future harm in a parole
matter, or the many other legal matters where disallowing that outcome.
See State v. Hedqpeth, 365 Or 724, 733 (2019); Smith v. Providence
Health & Servs Oreqon, 361 Or 456, 47576 (2017); Smith v. Bd. of
Parole & Post-Prison Supervision, 343 Or 410, 419 (2007); Lea v. Gino's
1°
Large Capacity Magazines are used in 3 out of every 10,000 incidents of selfdefense outside of the home, a
constitutionally protected activity. There is no analysis of such use when defending the home. See Defendant's
Response, pg. 12. BM 114, section 11 makes it illegal to possess large capacity magazines in the home unless the
accused provides affirmative proof of ownership prior to passage and that the possession met one of the
exceptions under the law.
11
Defendants argue that every mass shooting since 2004 with 14 or more deaths used large capacity magazines.
See Defendants' Response, pg. 14. They fail to note that there have been ten such events In last eighteen years as
is borne out in their exhibits. See Marshall Dec, Ex. 1, pg. 3640. There have been 110 mass shootings of four or
more victims in the same timeframe, many of which did not involve large capacity magazines. Id.
19Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
Pizza Inn, lnc., 271 Or 682, 688 (1975) ("Prosser on Torts (2nd ed), s 42, p.
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The court cannot read BM 114, section 11 in any way that creates a
constitutional act.
d) Unduly Burdensome.
12
Defendants' analysis on page 11 regarding regression analysis overstates their own literature significantly. Their
own literature states that there seems to be a correlation as hypothesis due to the very small statistical size and
the incompleteness of the literature. See factual finding 17.
20-Opinion Letter Re Arnold, et al, Plaintiffs V. Kati Brown, et al, Defendants
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magazines to hold more than 10 rounds. Most, if not all, magazines are
readily modifiable to hold more than 10 rounds.
Current owners of large capacity magazines are criminalized under the law.
As is pointed out by the plaintiffs, "BM 114 provides no general exception
even for continuing to possess magazines already owned prior to the
effective date. Rather, BM 114 provides a mere 'affirmative defense'."
otherwise in a court of law after the state had established a prima facia
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Under these findings and legal analysis, "there can be no reasonably likely
circumstance in which application of [section 11] would pass constitutional
muster." Christian at 41.
13
"The public defense crisis is playing out throughout the state...this too is exponentially worse in rural
areas for a wide variety of reason." Oregon State Bar President Kamron Graham, "Rural Oregon Needs
Our Engagement", Oregon State Bar Bulletin, December 2022, pg 30. Rural Oregon is a place with a
rich culture of firearm ownership and pride in their capacity to handle their use Without interference.
23Opini0n Letter Re Arnold, et ai, Plaintiffs v. Kati Brown, et al, Defendants.
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The Plaintiffs have shown there is a likelihood that the court will find the
section facially unconstitutional. Christian at 40.
(3)Balancing Harms.
There is little to no harm in delaying implementation of BM 114 while the
parties prepare and present evidence at an injunction hearing.
14
Defendants even argue that both "firearms and magazines are durable goods with a long useful life.
Plaintiffs can continue to keep and bear the arms they currently possess. There Is no analysis for the
Defendants on how many mass shootings used large capacrty magazine and how many of those were
newly purchased. The evidence is also that the fixed plate magazines do not have a long and useful life.
The long and useful life relies on the ability to remove the base/floor plate for regular cleaning.
24Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
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Finally, the defendants' own literature "seems" to show that the ban will
help with fatalities. No definitive scientific evidence has been provided that
large capacity magazine bans have any impact on the number of fatalities
or casualties now or in future events.
(4)Public Interest.
The legal standard is "there are situations where the public interest would
be so seriously affected by the issuance of an injunction that the court will
deny an application therefor". Elkhorn Baptist Church v. Brown, 366 Or
544 quotinq Bennett v. City of Salem, et al, 192 Or 531, 546 (1951).
As described above, the public interest in this matter is real and significant.
The people of Oregon voted for the measure by a margin of 975,553
(50.65%) for the measure, and 950,589 (49.35%) against. Oregon
Secretary of State website, State of Oreqon: Votinq & Elections Votinq & -
There is a serious harm to the public interest, as well, when individuals are
arrested, prosecuted and convicted of a Class A misdemeanor under an
unconstitutional statutory regime, a potential if BM114 is allowed to go in
effect at this time.
CONCLUSION
So Ordered,
CIA:7? '
Robert S. Raschio
24'" Judicial District
Presiding Circuit Court Judge