A state judge Tuesday continued to temporarily block Measure 114′s provision that would require the completion of a criminal background check before a gun can be sold or transferred in Oregon.
Harney County Circuit Judge Robert S. Raschio issued his decision after hearing arguments in court last month.
Oregon Special Assistant Attorney General Harry B. Wilson had urged the judge to allow the requirement to become law, arguing it will save lives, is constitutional and wasn’t originally challenged by Gun Owners of America, which sued the state to block the voter-approved measure.
The new background check requirement would close the so-called Charleston loophole. Under current federal law, dealers can sell guns without a completed background check if the check takes longer than three business days. That’s how the gunman in the 2015 Charleston, South Carolina, mass shooting bought his gun and killed nine people at a church.
Tony Aiello Jr., an attorney for Gun Owners of America, argued in the hearing that what the state calls a “loophole” is actually a “relief valve” put into the federal law to make sure a gun buyer isn’t waiting indefinitely for a background check to be completed. In Oregon, state police are in charge of conducting the background checks.
He argued that Oregonians, under Measure 114, will have no guarantee that state police will process their background checks in a timely manner.
Raschio last month halted all parts of the Oregon gun-control measure. He issued a preliminary injunction against its restrictions on the sale, manufacture and use of large-capacity magazines and issued a temporary restraining order on the requirements that people obtain a permit to buy a gun and that dealers receive a completed background check on buyers before selling or transferring a gun.
On Tuesday, Raschio said he wouldn’t treat the background check change separate from Measure 114′s permitting requirement, finding that the two are “inexorably linked.”
Only if he finds that the permit requirement to buy a gun is unconstitutional as the case proceeds will he evaluate and rule on the completed background check independently, Raschio wrote.
The state has said it won’t be ready to support a permitting program until March 7.
Raschio said he would hold a hearing on a preliminary injunction regarding the permitting requirement within 10 days of the state informing him that a permitting process is in place and ready to operate.
The case was brought by Virginia-based Gun Owners of America and two Harney County gun owners who seek to block Measure 114. The measure narrowly passed with 50.7% of the vote.
“Judge Raschio’s ruling puts the demands of the gun lobby ahead of public safety and the express will of Oregon voters,” said Adam Smith, spokesperson for the nonprofit Oregon Alliance for Gun Safety, noting that 22 other states already require such a completed background check prior to any gun sale. “There is no reason to put Oregonians at risk by delaying the implementation of this safety provision.”
According to FBI data analyzed by the nonprofit Everytown for Gun Safety, 2,989 firearms were transferred to prohibited people across the country before a background check could be completed in 2019, including 562 firearms sold to convicted domestic abusers.
Since 2018, the Oregon State Police Firearms Instant Check System prevented more than 4,600 felons and more than 2,000 people on probation from illegally buying guns through its current background check program, according to Karen Lejeune, a program manager for the system. The checks also have stopped domestic abusers, fugitives and people with severe mental illness from illegally obtaining guns, according to state police.
In the first 10 months of 2022, state police received 253,662 requests for criminal background checks on prospective gun buyers, an average of 25,000 requests per month. That number rose dramatically after Measure 114 passed, with more than 85,000 requests for background checks received in November. Last month through Dec. 20, state police received about 43,000 requests for background checks, state police data showed.
The state presented to the court a sworn statement from Michael Siegel, a doctor and professor in the public health and community medicine department at Tufts University School of Medicine, who found “overwhelming evidence that state-level background checks are effective in reducing rates of firearm homicide.” He said his own research, which included four different published studies, found a consistent reduction of between 13% and 15% in firearm homicide rates associated with state-level background checks.
Further, Siegel wrote in support of closing the Charleston loophole: “There is no question that it is in the interest of protecting public safety for the state to close this severe loophole by extending the amount of time that the Department of State Police has to conduct background checks before the gun is released to the purchaser.”
Wilson also unsuccessfully argued that the permitting requirement to buy a gun was separate and distinct from the completed background check requirement.
Lawyers for the state Department of Justice, which is defending the measure, intend to ask the Oregon Supreme Court to review Raschio’s order blocking the measure’s restrictions on large-capacity magazines and his latest ruling barring the measure’s completed background check, according to Kristina Edmunson, department spokesperson.
Meanwhile, four separate challenges to the measure are pending in federal court.
U.S. District Judge Karin J. Immergut last month ordered Measure 114′s permit-to-purchase gun regulation be delayed but allowed its ban on the sale and transfer of large-capacity magazines to take effect. Later the same day, Raschio’s ruling was separate and binding, putting the measure on hold based on state constitutional law.
Immergut asked the gun rights advocates who sued the state in federal court whether she should proceed to schedule a hearing on a preliminary injunction in their consolidated case. A preliminary injunction lasts longer than a temporary restraining order to preserve the status quo while a case proceeds for a final judicial decision or settlement.
The National Shooting Sports Foundation, the Oregon State Shooting Association, Mazama Sporting Goods, who are among the plaintiffs in federal court, urged Immergut to proceed separately, arguing that their rights remain “under threat of imminent and irreparable, constitutional and economic harm” until the challenge in state court proceeds and a permanent injunction is issued against Measure 114 and upheld by Oregon’s highest court.
Immergut has set aside Feb. 22, 23 and 24 to hear arguments on a preliminary injunction, the next step in the federal challenges to Measure 114.
-- Maxine Bernstein
Email mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian
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