by Neal Lemery
In this second part of the Pioneer’s look at a county-wide measure on the May ballot, we hear from local law enforcement and the organized opponents of the measure.
Manzanita police chief Erik Harth responded as follows: “I’m sorry but I cannot comment on that measure. I am not positive but the Sheriff maybe the only law enforcement official who can, as he is an elected official.”
Chief Harth referred us to ORS 260.432(2) which states that public employees (including school administrators, city managers, police chiefs, etc.) may not be involved in promoting or opposing any political committee or any initiative, referendum or recall petition, measure or candidate.
Elected officials, but not other government employees, can publicly comment on election issues, under Oregon law. Police chiefs are appointed by their city managers or city councils, but the Sheriff is elected, so he can comment on ballot measures. The State Police are also prohibited by law from commenting.
From Sheriff Joshua Brown:
“I will not be weighing in on any particular ordinance, levy or candidate at this time. However, I strongly recommend that voters read the entirety of any proposed legislation so that they can better understand the implications if it were to pass. It’s best not to rely on just their titles to guide your decision. It’s not usually as simple as it sounds.”
A link to the proposed ordinance is HERE.
A strong supporter of “A Just Right” PAC and its efforts to educate Tillamook County voters about Measure 29-161, Kathy Blevins, DVM, a retired Tillamook veterinarian, said, “I am pro Second Amendment, which means I support our right to hold and bear arms AND I support gun safety laws and regulations. To support one section of the amendment, but not the other is irresponsible. The Second Amendment is the only one in the Bill of Rights to include the concept of “well regulated”; many other amendments refer to laws and rules, so we know that those concepts were important to the writers. Ownership of guns without safety laws, rules, and regulations is irresponsible. Measure 29-161 would suggest we can nullify Federal and State gun safety laws, rules, and regulations. That is why I say this ordinance is unsafe, unconstitutional, and irresponsible. It undermines the rule of law, which is one of the pillars of our democracy. The only responsible vote on 29-161 is NO.”
“A Just Right”
We also reached out to the opponents of the initiative, “A Just Right”, a local political action committee (https://ajustright.org) .
The group also responded to our written questions:
Why are you opposed to this proposed county law?
“It circumvents the democratic system and role of courts in determining the constitutionality of laws. It punishes “any entity, person, official, agent, or employee of Tillamook County who knowingly violates this ordinance…” Its deceptive description misrepresents county and law enforcement authority, misleads residents with faulty assertions, and falsely implies residents are not subject to certain laws.
“It is dangerous and irresponsible. It is a clear attempt to circumvent the rule of law. It would at its essence, leave the entire county unprotected when it comes to firearm regulations. It prevents the county, and law enforcement officers in particular, from doing the job of keeping the community safe.”
From your perspective, what are the major flaws in this proposal?
“It is unwieldy and legally problematic. Many questions and issues would need to be addressed before the county could enact an ordinance such as this. Obtaining the answers would be costly.
“Section 2. FINDINGS
- Misleads voters by omitting U. S. Supreme Court Opinion in DISTRICT OF COLUMBIA ET AL. v. HELLER held ‘Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…’
“ORS 203.035 “Home Rule” grants counties, by ordinance, to exercise authority within the county over matters of county concern, to the fullest extent allowed by Constitutions and laws of the United States and Oregon. (Reporter’s note: Tillamook County is not a “home rule” county, but rather a “general law” county. State statutes for those general law counties grant similar powers to adopt ordinances of local concern, subject to both state and federal law.)
“There may be a legal argument under the anti-commandeering doctrine pertaining to Federal laws but this measure mostly focuses on State laws. The authority of the State over cities and counties is much stronger and more complicated.
“Section 4. PENALTIES
1 ) ‘All local, state, and federal acts, laws, rules, and regulations, originating from jurisdictions outside of Tillamook County, which restrict or affect an individual person’s general right to keep and bear arms,,, shall not be enforced… and shall be treated as null, void and of no effect in Tillamook County Oregon’. The Oregon Constitution, statutes, and common law affirm the ‘supremacy’ of State law. Preemption is the use of State law to nullify local jurisdictions ordinance or authority. In other words, counties are preempted from enacting ordinances and resolutions that conflict with the State.
“Section 5. PRIVATE CAUSE OF ACTION
- “Neither sovereign nor governmental immunity shall be an affirmative defense…” Although controversial, “qualified immunity” cannot be overridden by a county ordinance. Changing or ending immunity is a matter for the U. S. Congress and Supreme Court.
“It enables lawlessness. Its intention is to put Tillamook County beyond the reach state and federal laws. The actual ordinance contradicts itself throughout. As a written document it is messy and rife with potential for abuse. It wishes to punish the individual. There are more problems with the way it’s written than we can even begin to examine. That said, we shouldn’t bother. At its core its intention is the real problem.”
Why do you think the proponents of this measure want the voters to adopt this?
“To have free access to firearms, firearms accessories, and ammunition without any restrictions.
To punish public officials for enforcing firearms related local, state, and federal acts, laws, orders, or regulations.
“We believe they are looking to have less legal recourse for armed acts of aggression. The January 6th attack on the Capitol, the attack on our Capitol in Salem, kidnapping attempts on government officials, vigilante justice, are all starting to have serious consequences to those involved. This ordinance would curb the level of accountability that is finally being levied.”
If you believe there needs to be a county law on this subject, what would be the primary elements of that?
“There is no need for a county law on this subject.
“Law enforcement that knowingly violate or ignores state and federal laws should be removed from duty and punished accordingly. Law enforcement that violate their oath of office should be removed from duty permanently.”
If the proposal is approved, would concealed weapons permits still be needed for people wanting to carry concealed guns in public?
“Yes, the law stands. The only change will be in the minds of some misled people that will believe certain laws do not apply to them.
“Proponents of the measure say yes, but if they won’t be enforced why are the needed? Concealed carry permits are a state law. According to this ordinance if someone is carrying a concealed firearm there is no one in the county allowed to stop that.”
If the proposal is approved, would the concealed weapons permit process and the training requirements change?
“No, the law stands. The only change will be in the minds of some misled people that believe certain laws do not apply to them.
“There can be no requirement when the detail in question is not required. My guess is that the requirements would stay on the books, but just like the mask mandate that was widely ignored, there would be no punishment for not meeting them. So, there would be no actual change, but there would certainly be a subjective change in that any person wishing to carry a weapon without first meeting those requirements could do so. We would have to bring in state or federal agents to stop them.”
How would the police enforce the ordinance?
“Tillamook County Sheriff Josh Brown will need to respond to this question as it pertains to the Tillamook County’s Sheriff’s Office and staff. Oregon State and nearby cities’ police officers would not be bound by the ordinance. The ordinance would likely hamper cross jurisdictional cooperation and operations.
“Most likely, it will be selectively. This is one of the most dangerous aspects of this proposed ordinance. It allows for unequal application of the law. Personal biases and relationships would become the driving force on how the ordinance is enforced. This is not how law enforcement works. Equal protection and accountability under the law must be maintained. This ordinance is a free for all with every county officials to interpret the law and apply it as they individual choose.”
How would this enforcement work affect the workload of the police for their other responsibilities?
“This measure would tie their hands and likely require them to embark on a public awareness and education campaign. Their jobs are dangerous and complex enough without adding confusion about which laws to enforce or not. Law enforcement officers know what is right and legal.
“That depends upon the mindset of the individual officers. For an officer to knowingly refuse to enforce a state or federal firearm regulation, or to leave an individual that they feel is a risk to the community in a position to do harm, might have more of a personal cost than anything else. If the potential to save someone’s life was ignored because a large fine stood in the way of enforcing a regulation that could prevent it, and that individual ended up losing their life, well, that’s a cost that we can’t quantify. I would not be surprised if we lose law enforcement should this pass. It literally prevents them from keeping the community safe, unless they want the fines, of course.”
Are there county budgetary implications with this ordinance?
“Yes. Tillamook County will incur expenses to enact the ordinance and will assume financial risk for circumventing laws. Engaging in expensive litigation on the ordinance would not be in the best interest of the people of Tillamook County. Other Oregon counties have incurred litigation expenses related to similar ordinances. Tillamook County taxpayers may have to foot the bill on lawsuits filed by victims or their families of gun violence perpetrated by someone whose gun should have been confiscated.
“Definitely. The county will immediately be sued by the state and this will incur ongoing legal fees. The state won’t stop at a single lawsuit. They have the resources to go on and on. Individuals that believe their rights were violated as the ordinance is enacted could sue every county official that they felt was involved. It’s a logistical nightmare waiting to happen. Once a major crime is committed because a state or federal laws was ignored we can expect lawsuits that seek damages in the millions.”
What other laws should be selectively enforced?
“Law enforcement officers have broad powers of discretion to enforce laws and practice selective enforcement every day. It is what they do to serve and protect the public. When using discretion, officers are expected to ensure Equal Protection afforded by the Fifth and Fourteenth Amendments of the U. S. Constitution.
“All laws are subjectively enforced on some level. A person speeding because they are reckless will receive a ticket. Another person speeding with a woman in labor in the vehicle may get an escort. Deciding how to charge a crime is another place where the law is selectively enforced. Officials are given the power of discretion to determine when and how to apply the law in various situations. It’s part of the trust we give them. This ordinance removes that trust and discretion. It does nothing but hamper the ability to protect.”
How should that be determined?
“Through officer training, knowledge and respect for the law, clear policies and procedures ensures effective law enforcement practices and public safety.”
What else do you want the voters to consider about this proposal?
“Consider that the chief petitioner feels that enacting this ordinance is the only tool short of open rebellion. There are legal avenues to challenge laws that are thought to be unconstitutional. Would enacting this ordinance be the best use of Tillamook County assets and resources? How might this ordinance impact tourism, financial grants, attracting new business, etc.? Does Tillamook County want to open the door for other ordinances like this that may invite extremists and local militias to engage in armed rebellion. Please vote NO on Measure 29-161.
“AJR supports the Second Amendment, values democracy, and respects the rule of law. Learn more at https://ajustright.org/
“The name of this measure is a lie. It should have been called the “Limiting Law Enforcement Ordinance.” It’s a solution to a non-existent problem that has been put forth out of fear. Tillamook County could become a safe haven for extremists if this passes. Tourism would be affected. Property values would be affected. The ordinance prevents law enforcement from protecting the community. It is in violation of the Supremacy clause. Ultimately, it will not stand, But in the hearts and minds of extremists something will have been taken from them. So, dealing with this through the courts just isn’t good enough. Every citizen, everyday rational people that respect the rule of law, that respect the Constitution, and that are tired of the division that is consuming this country needs to show up and vote by May 17th. We must stop this measure and the fear mongering that it represents in its tracks. If you wish to defend the Constitution do it by voting NO against Measure 29-161.”
You can read Part One of this series here. The full text of the proposed county ordinance can be found here. Like all Oregon elections, the May Primary will be conducted by mail. Ballots will be mailed by the County Clerk April 27. The last day to register to vote or change political parties is April 26. You can register to vote in person at the Clerk’s office or online. Election day is May 17.