Is it legal to pass a law requiring law enforcement to follow the law?

B.L.U.F. Everytown out maneuvered Second Amendment supporters but managed an own goal by exposing a nasty biased Judge sitting on the Oregon Circuit Court.

H/T. to B.zH who made me spend to much time doing research. Enjoy.

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Each person enlisting in an armed force shall take the following oath:

“I, ____________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

10 U.S. Code §892 – Art. 92. Failure to obey order or regulation

Any person subject to this chapter who–

1. violates or fails to obey any lawful general order or regulation;
2. having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
3. is derelict in the performance of his duties;

shall be punished as a court-martial may direct.

One of the differences in our military traditions is that “I was just following orders.” is not an acceptable excuse. You have to be following lawful orders. Determining what is an is not a lawful order is what gets people in trouble.

An order given by a superior is presumed to be lawful. Regardless, if U.S. Military personal follow an order that is later determined to be unlawful, they can be court-martialed and punished.

Clackamas County Sheriff’s Office, Oregan: Oath of Office:

OATH OF OFFICE
I, __________________, being first duly sworn, as a Deputy Sheriff, upon oath say and affirm that I will support the Constitution of the United States, the Constitution of the State of Oregon, the Clackamas County Code, and all the laws thereof, and that I will faithfully discharge my duties in accordance with the lawful policies and procedures of the Clackamas County Sheriff’s Office.

I hold my position and authority on behalf of the people. Through my professional and personal example, I shall uphold the public trust and meet the public’s high expectations of me through my observance of the Criminal Justice Code of Ethics.

In reverence for the law, I shall conduct my duties in good faith, with honesty, courage, and justice, to the best of my ability. In so doing, I shall build the peoples’ trust and confidence in my position. I shall never betray them by willfully abusing my powers, authority, or knowledge.

So what does it actually mean if a County passes an ordinance that says, in short “Follow the Law of the Land?”

In 2018 Columbia County passed Initiative Measure 5-270 (“SAPO”) and then in 2020 Initiative Measure 5-278 (“SASO”).

In April of 2021 three members of county, supported by lawyers from Everytown filed suit to have these ordenances overturned as “unconstitutional and inconsistent with federal and Oregon law”.

These two initiatives where then combined as ordinance no 2021-1 by the Board of Commissioners for Columbia County, Oregon.
Ordinance No. 2021-1

PROHIBITIONS

1. No agent, employee, or official of Columbia County, a political subdivision of the State of Oregon, while acting in their official capacity, shall:
   1. Knowingly and willingly, participate in any way in the enforcement of any Extraterritorial Act, as defined herein; or
   2. Utilize any assets, county funds, or funds allocated by any entity to the county, in whole or in part, to engage in activity that aids in the enforcement or investigation related to personal firearms, firearm accessories, or ammunition.
   3. Authorize or appropriate governmental funds, resources, employees, agencies, contractors, buildings, detention centers or offices for the purpose of enforcing any element of such acts, laws, orders, mandates, rules or regulations, that infringe on the right by People to keep and bear arms, except as otherwise provided herein.
2. While within Columbia County, this Ordinance preserves the right of any person to keep and bear arms as originally understood; in self-defense and preservation, and in defense of one’s community and country, and to freely manufacture, transfer, sell and buy firearms, firearm accessories and ammunition, which are designed primarily for the same purposes and protects ancillary rights that are closely related to the right to keep and bear arms protected by the Second Amendment; including the right to manufacture, transfer, buy and sell firearms, firearm accessories and ammunition (“ancillary firearm rights”).

This case has complications because the different parties are not as expected. The players in this are:

• Plaintiffs(bad guys) supported by Everytown
• County Board of Commissioners, accused of being bad guys
• Intervenors (good guys), GOA, OFF, and others
• AG/State of Oregon (bad guys)

History

The people of the county were asked if they wanted to be a Second Amendment Preservation county and were later asked if they wanted to extend that into being a Second Amendment Sanctuary. In both elections the citizens of the county voted to be pro Second Amendment.

As initiatives, these have more “power” than mere ordenances. Ordinances are by the will of the representatives. In this case the Board of Commissioners. Whereas the initiatives are the will of the people and are presumed to be constitutional. IANAL. This is gleaned from reading the filings.

Intervenors’ Opening Brief

As a preliminary matter, Intervenors object to the validity of the Petition for Validation of Local Government Action (“Pet.”) filed by the Columbia County Board (“Board”), as this is not the proper proceeding for a county board to challenge the validity of either Measure 5-270 or Measure 5-278 (“Initiatives”). Neither is this validation proceeding the proper method for the Board to challenge its own Ordinance 2021-1 (“Ordinance”), which was enacted as a contrivance to undermine the legality and constitutionality of the Initiatives which were popularly enacted by the People.1 Indeed, the Petition seeks “a judicial determination and judgment of the Court as to the regularity,2 legality and effect” not only of “Ordinance 2021-1,” but also of “Initiative Measures 5-270 and 5-278.” Pet. at 3. The latter portion is impermissible.

Footnote 1 of the Intervenors’ Opening Brief:

The Board puts forth no argument and makes no claim that the Initiatives were not lawfully passed. Indeed, the Oregon Constitution provides that “[t]he people reserve to themselves the Initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly.” Ore. Const. Art. IV, § 1(2)(a). The Initiatives in this matter were properly included on the ballots and passed by a majority vote (see Exhibits “6” and “7” to the Petition). As such, they are presumptively lawful and constitutional. See State v. Lloyd A. Fry Roofing Co., 9 Or App 189, 196, 495 P2d 751, 754 (1972) (“[l]egislative action is always supported by a strong presumption of constitutionality….”).

So this looks to be a strong case just from this brief read.

2021.06.24-Intervenors-Opening-Brief

The State AG weighed in on the side of the plaintiffs (bad guys) but the language is interesting. They are only asking for a summary judgement against Ordinance No. 2021-1. Not the Initiatives. It seems like the GOA, OFF et all had the right of it.

The Attorney General moves for summary judgment under ORCP 47, asking the Court to declare that the Columbia County Second Amendment Sanctuary Ordinance, enacted by Ordinance No. 2021-1, is invalid. The Attorney General’s motion is supported by the pleadings and papers on file and the points and authorities set forth below.

2021.06.24-Attorney-Generals-MSJ

Everytown replies to the Intervenor’s motion for summary with the same argument, that they are attacking Ordinance No. 2021-1.

Very interesting that they just ignore the Initiatives as well.

2021.07.08-Columbia-County-Residents-Response-to-Intervenors-Motion-for-Summary-Judgment

And the County’s reply:
2021.07.08-Petitioners-Reply-to-Intervenors-Opening-Brief

The county admits that they adopted Ordinance No. 2021-1 with the intention of requesting judicial review. This seems to be supported by law. I don’t know that they could have requested judicial review of the Initiatives.

The good news! Presiding Judge Ted E. Grove denied the request because the Petitioners(bad guys/Everytown) did not have “justiciable controversy.”

Petitioners do not seek to defend their ordinance from a challenge or resolve some conflict between parties. They do not attempt to overcome resistance from the Sheriff or State Police, nor, as apparent from their pleadings, would they defend their ordinance at all even if challenged. Instead, Petitioners seek what amounts to an advisory opinion designed to invalidate their own newly passed ordinance.

cc-court-decision1

Of course Everytown appealed, which lead to the the following opinion from the state appeals court:

Their appeal is that the lower court decided incorrectly. They bring nothing new to the argument and just tell the appeals court to read what was already presented.
2021.07.15-FINAL-Columbia-County-Residents-Reply-iso-Motion-for-Summary-Judgment

2021.06.24-Columbia-County-Residents-MSJ

The state circuit court of appeals says that there was “justiciable controversy.” That controversy was the threat of litigation. IANAL, it looks like Everytown got the Board to create the ordinance, then threatened to sue the county over the ordinance, at which point the county asked for judicial validation of the Ordinance No. 2021-1, which they didn’t need to do in the first place.

On the merits, the SASO fails. It is implicitly preempted by multiple state laws, ranging from state gun safety legislation (including recently enacted legislation) to the Oregon Tort Claims Act. The SASO is expressly preempted by Oregon’s Firearms Preemption Statute, ORS 166.170. It also is preempted by federal law, and therefore runs afoul of the Supremacy Clause. The SASO fails to address matters of county concern. The SASO is invalid, preempted and unconstitutional.

So there you have it. It is illegal to pass a law/ordinance that requires law enforcement to follow the law, because the law mentioned was a US Constitutionally protected right.

The SASO is rooted in the flawed premise underlying Measure 5-278 (2020), that local governments can ignore and disregard state and federal gun safety legislation. …

Emphasis added.

They are not gun safety laws, they are infringements.

The appeals court then says that the trial court was in error on controversy because the County did indeed pass an ordinance and as such could request the validation hearing, with no real controversy. If the County Board of Supervisors had not passed Ordinance No. 2021-1 there would be no case.

Opinion of the State Circuit Court of appeals:

1. The Court of Appeals Should Reach the Merits.
2. The Second Amendment Sanctuary Ordinance Is Invalid and May Not Be Enforced.
   1. The SASO Is Preempted by Oregon Law.
      1. The SASO Is Implicitly Preempted by Oregon Law.
      2. The SASO Is Expressly Preempted by Oregon’s Firearms Preemption Statute.
   2. The SASO Is Preempted by Federal Law.
   3. The SASO Does Not Address “Matters of County Concern.”
   4. The SASO is Inseverable.

The Oregon State court of appeals thus declared the “SASO” invalid and unconstitutionalColumbia_County_v_Oregon_Interested_Parties_Opening_Brief and found for the Plaintiffs(Bad guys).

But wait! There is more! Judge James Egan decided to use his position as a judge to write 27 pages of concurring “opinion”.

I must be clear that the flawed quasi-legal argument offered by Intervenors—viz., the UN wants to disarm Americans—and the proposed solution—viz., imposing a duty on county sheriffs to determine which laws are constitutional—have their origins in the insidious effort to oppress, in violation of fundamental notions of due process and equal protection under the rule of law. And in doing so, the Ordinance undermines, not elevates, the rights guaranteed by the United States Constitution.

He justifies this screed with the following footnote:

This journalistic function of a concurrence was best characterized by Judge James in State v. Bledsoe, 311 Or App 183, 197, 487 P3d 862, rev den, 368 Or 637 (2021) (James, J., concurring):

“Judicial opinions serve many functions, and one of those is journalistic. Our opinions are dispatches from the edge—moments, recounted for posterity, of how Oregon’s laws * * * and the lives of its citizens, intersect.”

Here the judge brings forth his mind reading abilities to discern the motives of the people that sponsored the Initiatives, got them turned into an Ordinance, and then defended them in court.

“The Antisemitic and Racist Origins of the Ordinance”

CSPOA[Constitutional Sheriffs and Peace Officers Association] claims to eschew racist ideology, but in fact its leaders embrace racist and white nationalist ideologies. The growing “constitutional sheriffs” movement intends to increase the risk of conflict between local law enforcement and federal authorities. The movement is animated by the deeply flawed and ahistorical view that county sheriffs hold ultimate law-enforcement authority in each individual county outranking federal and state authority. This deeply flawed and legally incorrect analysis holds that the superiority of county authority is deeply rooted in Anglo-American law. The anti-democratic ideas and quasi-legal theories propounded by the CSPOA and embedded in Second Amendment Sanctuary Ordinances have their origins in the writings of William Potter Gale, who founded the posse comitatus movement in the 1960s. They also have their origins in the writings of the Aryan Nation, an antisemitic, white supremist group.

This Judge is telling us that the people that want Second Amendment Sanctuaries are racist and antisemitic because he things the movement is a direct continuation of some other nasty group.

If you want to read it for yourself: 2023-a176726