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Oregon attorneys cling to discredited gun use stats in defense of Measure 114

September 26, 2023 by Cam Edwards Leave a Comment

As my colleague Ranjit Singh highlighted on Monday, one of the most important parts of U.S. District Judge Roger Benitez’s opinion striking down California’s ban on “large capacity” magazines was his thorough debunking of the state’s claim that a ten-round magazine capacity is just fine, given that the “average” number of defensive gun uses results in just 2.2 rounds being fired. As Benitez explained, that number came from a researcher named Lucy Allen, who was one of the witnesses for the state of California, but the judge found major fault with her data.

Without investigatory reports, the State’s expert turns to anecdotal statements, often from bystanders, reported in news media, and selectively studied. She indicates she conducted two studies. Based on these two studies of newspaper stories, she opines that it is statistically rare for a person to fire more than 10 rounds in self-defense and that only 2.2 shots are fired on average. Unfortunately, her opinion lacks classic indicia of reliability and her two studies cannot be reproduced and are not peer-reviewed.
“Reliability and validity are two aspects of accuracy in measurement. In statistics, reliability refers to reproducibility of results.” Her studies cannot be tested because she has not disclosed her data. Her studies have not been replicated. In fact, the formula used to select 200 news stories for the Factiva study is incomprehensible. […]
For one study, Allen says she conducted a search of stories published in the NRA Institute for Legislative Action magazine (known as the Armed Citizen Database) between 2011 and 2017. There is no explanation for the choice to use 2011 for the beginning. After all, the collection of news stories goes back to 1958. Elsewhere in her declaration she studies mass shooting events but for that chooses a much longer time period reaching back to 1982. Likewise, there is no explanation for not updating the study after 2017.
[…] details are completely absent. Allen does not list the 736 stories. Nor does she reveal how she assigned the number of shots fired in self-defense when the news accounts use phrases like “the intruder was shot” but no number of shots was reported, or “there was an exchange of gunfire,” or “multiple rounds were fired.” She includes in her 2.2 average of defensive shots fired, incidents where no shots were fired. […] She does not reveal the imputed number substitute value that she used where the exact number of shots fired was not specified, so her result cannot be reproduced. […] For example, this Court randomly selected two pages from Allen’s mass shooting table: pages 10 and 14. From looking at these two pages (assuming that the sources for the reports were accurate and unbiased) the Court is able to make statistical observations, including the observation that the number of shots fired were unknown 69.04% of the time.

In other words, this data point is absolute trash. So it’s extra amusing to see the state of Oregon rely on these garbage statistics in defense of Measure 114, the narrowly approved voter referendum that imposes the same magazine capacity limitations as California’s challenged law (in addition to a permit-to-purchase scheme that could result in a defacto 30-day waiting period on handgun purchases). Closing arguments in a state-level lawsuit challenging Measure 114 were held in the Harney County courtroom of Judge Robert S. Raschio on Monday, and Oregon attorneys relied heavily on the now-debunked claim to make their case.

The two Harney County gun owners who filed the challenge in court, as well as two rural Union and Harney county sheriffs, testified about their preferences for large-capacity magazines for self-defense to protect their livestock from coyotes, or to thwart attacks from wolves and bears.
[Senior Assistant Attorney General Harry B.] Wilson urged the judge to discount their “limited anecdotal evidence” and instead rely on the testimony of a state’s witness, who calculated that a review of the NRA’s Armed Citizen defense data shows the average rounds fired in self-defense is no more than 2.3 rounds.
[Plaintiffs’ attorney Tony L.] Aiello said the database only captures self-defense shootings that are reported.
“Statistics mean nothing to the person whose doors were kicked in by more than one attacker. Statistics mean nothing to the person who hears the howl of a wolf or coyote, and statistics mean nothing to the officer whose ability to defend himself and others differs based on whether he is punched in or punched out for the day,” he argued.
He highlighted the testimony of Oregon State Police Supt. Casey Codding, who said his troopers typically carry 52 rounds on them on duty — 17 rounds and one in the chamber in their on-duty handgun with two additional 17-round magazines.
“Defendants have put on zero evidence showing that restricting a regular law-abiding Oregonian from the best arms for self defense will further public safety in any way,” Aiello said.

Judge Benitez provided several examples of defensive gun uses in which more than ten rounds were fired in his opinion in Duncan v. Bonta, further making the point that arbitrarily restricting magazines to no more than ten rounds could indeed play a role in whether someone is able to successfully fend off an attack or assault against them. I’m curious to see if Judge Raschio will cite Benitez in his own decision to grant or deny a permanent injunction against Measure 114, which he indicated will come sometime in the next 60 days.

No matter how Raschio rules, the case will be appealed to the Oregon Supreme Court, so he won’t be the last judge in the state to weigh in on the constitutionality of the ballot measure. Meanwhile, plaintiffs in a lawsuit filed in federal court have appealed to the Ninth Circuit after U.S. District Judge Karin J. Immergut rejected a request for a temporary restraining order earlier this year in a bizarre ruling that contended the now-banned magazines “are not commonly used for self-defense, and are therefore not protected by the Second Amendment.”

Raschio, on the other hand, has already granted a temporary restraining order that has kept the measure on hold, and I’ve seen nothing from the most recent trial that makes me think he’s changed his mind about the constitutionality of Oregon’s newest gun control laws. I hope we don’t have to wait two months for his decision, but my guess is that when it does come out gun owners and Second Amendment advocates will have plenty to cheer… and we’ll be one step closer to SCOTUS finally resolving what should be a long-settled debate.

Oregon judge “surprised” by state’s approach in defense of Measure 114

September 21, 2023 by Cam Edwards Leave a Comment

We won’t know for sure how Harney County Judge Robert S. Raschio will rule on the constitutionality of Measure 114 until he actually issues his opinion, but if I were a betting man I’d say that the odds are in the plaintiffs’ favor. Raschio has already granted an injunction blocking the law from being enacted while the case proceeded to trial on the grounds that the plaintiffs were likely to prevail, and I’ve seen nothing during the first half of the trial that indicates Raschio has been persuaded otherwise.

Quite the opposite, as a matter of fact. On Wednesday, Raschio allowed testimony from the superintendent of the Oregon State Police as well as two rural sheriffs over the objections from attorneys representing the state, who claimed that because law enforcement is exempt from Measure 114’s prohibition on the sale, manufacture, and transfer of “large capacity” magazines their opinions were irrelevant. Not so, said the judge.

Raschio said he was partly swayed by a “friend of the court” brief that the National Police Association had filed with the Oregon Supreme Court in late January in support of the Harney County gun owners’ challenge to the Oregon gun control measure.
The judge read a passage from the association’s 50-page brief, to explain his ruling:
“It reads, ‘Because police officers are defending themselves against the same criminals as citizens, their experience is highly relevant to the appropriate scope of self- defense. Over the years, police departments across the nation have abandoned service revolvers in favor of modern semi-automatic weapons with larger magazines. This is true even though police are often working together as a group, with even less need for higher capacity magazines than individual citizens attempting to defend themselves.’”
Raschio said that he agrees that what police use for self defense is “highly relevant,” and will allow the testimony from Oregon State Police Supt. Casey Codding and two sheriffs from Union and Harney counties, who took the witness stand a day earlier, to be considered.

In another sign that the case isn’t going well for the defenders of the gun control measure, Raschio had some tough questions and obvious skepticism when the plaintiffs wrapped up their case and attorneys for the state began calling their witnesses.

Joseph Paterno, a congregant of Portland’s Augustana Lutheran Church and one of the signature-gatherers involved in the Lift Every Voice Oregon campaign, was called by the state to testify how the grass-roots initiative process led to Ballot Measure 114.
Aiello argued that Paterno’s testimony is outside the scope of the judge’s text-based examination of the gun control measure. He said the judge could consider the measure’s preamble and what was written in the voter’s pamphlet but not consider testimony from Paterno about recent mass shootings that motivated the initiative process.
“I don’t understand how any of this testimony goes to this court determining the facial constitutionality of the law,” Aiello said.
Oregon Assistant Attorney General Brian Marshall countered that Paterno’s testimony will be about the legislative history and show the measure’s “public safety purpose.”
“This measure would have never passed had he not led an effort to collect the signatures,” which triggered the legislative process, Marshall said.
Raschio said he found “it surprising that this is the approach being taken,” by the state. Without reviewing the case law, the judge said he considered the legislative history to be limited to the text of a measure, its preamble and the voter’s pamphlet and considered Paterno’s testimony to be “an expansion” of that rule.

Raschio ultimately allowed Paterno to answer questions, while holding off until a later date to decide whether or not he’d ultimately take Paterno’s testimony into consideration or reject it as outside the scope of his examination of the gun control measure.

Raschio has blocked off six calendar days for the trial over Measure 114, so a decision isn’t likely to come this week. Based on how the trial has gone so far, I think gun owners are right to feel pretty confident that Raschio is going to once again rule in their favor, though the state will undoubtedly appeal as quickly as possible to the Oregon Supreme Court. It looks to me like Raschio is crossing every “t” and dotting every “i” so that the state Supreme Court can’t overturn his decision on a technicality, and the plaintiffs have done an excellent job in showing that limitations on firearms capacity aren’t a part of the historical tradition when it comes to the right to keep and bear arms protected by the state’s constitution. Whether the state Supreme Court will agree is an open question, but that’s another post for a later date.

Portland, Oregon Police Chief Calls It Quits as the City Remains in Freefall

September 21, 2023 by Ward Clark Leave a Comment

Portland Police Chief Chuck Lovell is calling it quits. Lovell has served the city of Portland as chief for three years, and they have been eventful ones.

Chief Lovell informed the department on Wednesday that he will be retiring on Oct. 11, which is just four years shy of his eligibility to retire, according to The Oregonian.
“Personally, for me, its a time for transition,” Lovell told the outlet.
Lovell, a US Air Force veteran who has been with the Portland Police Bureau for 21 years, explained that he took the job as police chief “essentially overnight.”
During the height of the Black Lives Matter and Antifa riots of 2020, in which there were months of civil unrest, former PPB Chief Jami Resch abruptly quit her position and appointed Lovell to takeover on June 11, 2020.

For those who might be curious as to why the former Chief, Jami Resch, so suddenly quit, one might look at a few recent RedState stories that present the current state of Portland:

After announcing his departure, Lovell said:

We’ve started to rebuild and navigate some really tough times. I just want to thank the members of the Portland Police Bureau for the hard work that they do every day on behalf of our city. And I want to thank the community members that have supported me throughout my career.

Portland’s Mayor Ted Wheeler, reacting to Lovell’s announcement, said he has “nothing but my support, my admiration, and my gratitude for his service.”

A replacement has already been named. A retired Portland police officer, Bob Day, is to serve as acting Chief until the 2025 municipal elections, to allow the incoming mayor to name his or her own choice for Chief. Chief Lovell’s announcement comes on the heels of Mayor Wheeler’s announcement that he would not seek re-election.

During all this, now-Interim Chief Day made an interesting statement:

Day, who served in the PPB for 29 years before retiring, said that he has “hope” for the city which has obvious challenges.
“I am hopeful for this city,” he said, according to the outlet. “I see the challenges. I am not naive.”

Saying that Portland has “…obvious challenges” may not be the understatement of the month, but it will certainly do until a better one comes along.

It’s impossible not to feel some sympathy for Interim Chief Day, as he is inheriting an impossible situation. Portland is a city in free fall. The crime rate is skyrocketing, baffling to the progressive city council which voted in 2020 to defund their police by $15 million. Businesses are fleeing, due to unsafe conditions and runaway theft. Carjackings and robberies are all increasing.

And it’s a safe bet that Portlanders will elect another liberal Democrat for Mayor in 2025, after Wheeler retires, presumably, to someplace safer. Plus ça change, plus c’est la même chose. Wasn’t there some old saying about the definition of sanity? We may well feel some sympathy for Chief Day, but it’s hard to muster much for the typical Portland voter. There’s an obvious solution for Portland’s woes, but the voters apparently can’t grasp it.

But at least Oregonians can now pump their own gas.

Oregon’s anti-gun Measure 114 gets its day in (state) court

September 18, 2023 by Cam Edwards Leave a Comment

Though the Oregon anti-gun ballot initiative known as Measure 114 was narrowly approved by voters last November, the measure’s contentious edicts have yet to really be enforced. Though a federal judge declined to issue a temporary restraining order halting enforcement of measure’s ban on “large capacity” magazines, gun owners have seen more success in a legal challenge filed in state court, which has kept the mag ban and new permit-to-purchase scheme from taking effect until the issue is finally decided at trial.

Well, that day is here, and in Harney County, Oregon all eyes are on the courtroom of Circuit Judge Robert S. Raschio. The judge did grant a restraining order blocking enforcement of the ballot initiative not long after the votes were tabulated, and that ruling has kept the anti-gunners at bay for most of the past year. Now Raschio will have to decide whether the state’s latest gun laws should be thrown out permanently.

The measure requires Oregonians to obtain a permit to purchase a gun. Applicants must pay a maximum $65 fee, submit a photo ID, be fingerprinted, pass a criminal background check and complete approved safety training.
Police chiefs, county sheriffs or their designees are the “permit agents” under the measure and would have 30 days to issue a permit.
Renewals would be $50.
State police are required to maintain a searchable electronic database of permits and report permit data. The sale and transfer of firearms to a person without a permit would be a Class A misdemeanor under the law and could be a felony if a repeated offense.
Measure 114 also prohibited the manufacturing, importing, purchasing, selling, possessing, using or transferring of magazines capable of holding more than 10 rounds. The restrictions were supposed to go into effect 180 days after the law’s passage.
Law enforcement and armed services members were exempt, in addition to those who already owned or inherited the magazines for use on their property, at shooting ranges or competitions, for hunting, or while transporting them to a permissible location.

Arnold v. Kotek, filed by Gun Owners of America and two individual gun owners in Harney County, alleges that the magazine ban and pistol-purchase-permit are a violation of Article 1, Section 27 of Oregon’s constitution, which states “The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power.” In their complaint, the plaintiffs argue that the Supreme Court’s “history, text, and tradition” test should also apply to the state-level protections afforded the right to keep and bear arms, “and as elucidated by the Court in Bruen, if a member of ‘the people’ wishes to ‘keep’ or ‘bear’ a protected ‘arm,’ then the ability to do so ‘shall not be infringed.’Period.

There are no “ifs, ands or buts,” and it does not matter (even a little bit) how important, significant, compelling, or overriding the government’s justification for or interest in infringing the right. It does not matter whether a government restriction “minimally” versus “severely” burdens (infringes) the Second Amendment. There are no relevant statistical studies to be consulted. There are no sociological arguments to be considered. The ubiquitous problems of crime or the density of population do not affect the equation. The only appropriate inquiry then, according to Bruen, is what the “public understanding of the right to keep and bear arms” was during the ratification of the Second Amendment in 1791, and perhaps during ratification of the Fourteenth Amendment in 1868.

Rashcio has already ruled in favor of the plaintiffs in granting a restraining order and then an injunction halting enforcement of Measure 114, and he’s made it clear that he’s not interested in hearing the state try to justify the new restrictions through emotional appeals.

Defendants had intended to call trauma surgeon Dr. Mackenzie Cook, the daughter of a victim of the Clackamas Town Center shooting, and provide testimony related to the number of rounds fired in self-defense situations, according to the motion from the plaintiffs.
While Raschio agreed to the plaintiffs’ motion, he also granted the defendant’s motion to exclude testimony relating to state and local efforts and ability to implement the measure.
Instead, Raschio said he will focus on the text of the measure as it applies to Article I, Section 27 of the Oregon Constitution.
“The question is whether or not Measure 114 is facially constitutional under the Oregon Constitution. So all of that evidence is outside the scope of the court’s purview since I’m not making a policy decision,” Raschio said, according to the Oregonian. “I’m just making a determination on the constitutionality of the ballot measure.”

That should benefit plaintiffs here and keep Measure 114 from being enforced, at least for the time being. Ultimately, the state Supreme Court will have the final word in Arnold v. Kotek, just as SCOTUS will be the arbiter of the multiple lawsuits levied in federal court against Measure 114. We still have a way to go before either round of litigation reaches their final destination, but unless Raschio does a complete 180-degree turn from his previous rulings Measure 114 will remain both unenforceable and deemed unconstitutional at the conclusion of this week’s trial.