Oregon Firearms Federation, Inc. v. Brown

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by

Anonymous Web Angel(GFZ)
in ,


B.L.U.F.

Measure 114

Measure 114 turns the right to bear arms protected by the Second Amendment of the United States Constitution on its head. Measure 114 abolishes Oregonian’s constitutionally protected right to purchase firearms and own them for self-defense, turning it into a privilege, subject to the whims of government bureaucrats, that may be bestowed on Oregonians at a time when it is convenient for the government.
—Third Amended Complaint.Oregon Firearms Federation, Inc. v. Brown, No. 2:22-cv-01815, Doc. 158 (District Court, D. Oregon), ¶8
Measure 114 made up the term “large capacity magazine” for magazine capable of carry more than 10 rounds. There is not firearms industry term for magazines that hold more than 10 rounds, nor is it an accurate descriptive term for what is really standard equipment. Indeed, the law’s definition of “large capacity magazine” is deliberately misleading. Many people buy a firearm for the purpose of self-defense. Such consumers are inherently interested in maximizing the number of rounds available in a small package because it maximizes the effectiveness of their defensive tool. Characterizing standard capacity magazines as large capacity is a psychological trick designed to deceive the public.
— Id. ¶70</cite

The gist is that Measure 114 creates a permitting scheme that doesn’t work. It bans magazines and semi-automatic weapons and is another Bruen response spam bill.

State of Play

The case was opened on Nov 18, 2022. Shortly thereafter, the filed for an Emergency Motion for a Preliminary Injunction. A hearing for a Temporary Restraining Order was held on December 2nd. On December 6th, the motion for a TRO was denied.

If you want to read a transcript of the TRO hearing, you can find all 94 pages of it: Oregon Firearms Federation, Inc. v. Brown, No. 2:22-cv-01815, Doc. 58 (District Court, D. Oregon),

The legal stuff seems to be that when they asked for a Preliminary Injunction, the court looked at the schedule and decided they could not make that decision in time for the December 8th deadline. That meant the court looked at granting a TRO. The court then denied that TRO, leaving measure 114 in effect.

Against this backdrop, and based on the record before this Court at this early stage in the litigation, this Court finds that Plaintiffs have failed to meet their burden showing that they are entitled to the extraordinary relief they seek. Plaintiffs have failed to demonstrate that they will suffer immediate and irreparable harm if this Court does not block Measure 114 from taking effect on December 8, 2022. Plaintiffs have not produced sufficient evidence at this stage to demonstrate a likelihood of success on the merits of their challenge to Measure 114’s restrictions on large-capacity magazines. Plaintiffs have also failed to demonstrate a likelihood of success on their facial challenge to Measure 114’s permitting provisions. With respect to any as-applied challenge, Defendants have stated that they are not ready to implement the permitting requirements and have asked this Court to “enter an order providing a limited window in which Oregonians will be able to purchase firearms even though they do not have a permit, while also allowing Oregonians to apply for and be issued permits.” Id.
—Order and Opinion Oregon Firearms Federation, Inc. v. Brown, No. 2:22-cv-01815, Doc. 39 (District Court, D. Oregon), at 3,4

This is a complete denial of everything that the plaintiffs (good guys) were looking for. Of note, there are other cases moving through the state courts. That case did get an injunction stopping Measure 114 from the Oregon Supreme Court.

The plaintiffs appealed to the 9th Circuit Court on December 7th. They then withdrew that appeal because of an injunction granted by the Oregon Supreme Court. The 9th Circuit Court granted the motion for a voluntary dismissal on the 12th.

It’s the little things that matter

Measure 114 was a huge steaming pile. Unfortunately, the court system doesn’t do well with “huge steaming piles” at the lower court levels. They want to deal with those huge piles a bite at a time. And they demand that the parties present the issues in bite sized pieces.

That this means is at the worst case, this would require the plaintiffs challenging the law, to list each part of Measure 114 they are challenging. They would then have to argue each of those itemized pieces.

This is helpful to the state as they can still retain a “win” even if they lose most of those itemized pieces.

For example, Measure 114 talks about licensing agents. I believe I have that term correct from memory. The issue is that “licensing agent” isn’t well-defined in the law and, as such, it is possible for the state to outsource the task to some outside agency. Say “The Giffords Research, Investigation, and Fiduciary Team”, G.R.I.F.T. for short.

It also has parts about when an FFL can transfer a firearm and a many other parts.

At the TRO hearing, the state requested that the Court issue an order delaying the “permitting” requirements of Measure 114. In the December 20th, Joint Status Report, the defendants (the bad guys, the state) tell the judge that they didn’t request an injunction against the permitting process “just an order”.

And since the plaintiffs did not challenge the FFL transfer part of the permitting process, that can stay in place.

What this seems to mean, is that the state would still have to grant permission for a transfer to take place and the state could take as long as they wish to grant that permission.

Step, the next

The Court and the parties are preparing for a 5-day trial at the beginning of June. This means that the parties have to get their paperwork done before that happens.

Because multiple cases were combined into a single case, the plaintiffs filed “amended complaints”. The amended complaint states what the plaintiffs are challenging.

The state is required to answer these complaints. This is part of what one looks like:

  1. Defendants lack knowledge or information sufficient to form a belief about the truth of paragraph 3 and therefore deny it.
  2. In response to paragraph 4, defendants admit that Measure 114 requires some individuals to have a permit to purchase a firearm. Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in the second sentence and therefore deny it. Defendants deny the remainder of paragraph 4.
  3. In response to paragraph 5, defendants lack knowledge or information sufficient to form a belief about the truth of the second sentence and therefore deny it. Defendants deny the remainder of paragraph 5.
  4. In response to paragraph 6, defendants admit that prior to Measure 114, Oregon law had a loophole that allowed some transferees of firearms to obtain a firearm before a background check was completed. Defendants deny the remainder of paragraph 6.
  5. In response to paragraph 7, defendants admit the first sentence. Defendants deny the remainder of paragraph 7.
  6. Defendants deny paragraphs 8-Defendants deny paragraphs 8-9.
  7. Defendants admit that a copy of Measure 114 is filed at ECF #68-1, pages 1-12 (labeled Exhibit A).

—Answer to Amended Complaint. Oregon Firearms Federation, Inc. v. Brown, No. 2:22-cv-01815, Doc. 141 (District Court, D. Oregon),

There is a famous video of a congressional hearing with some executives of the Tobacco companies. The witnesses were sworn in. The Senator would ask a question. The witness would lean over and speak with their lawyer. The witness would then sit up straight and say clearly into the microphone, “I decline to answer on the grounds I might incriminate myself”.

This went on and on with every question. Finally, the Senator, becoming very frustrated, asked “Is your name such and such?” The witness leaned over and spoke to his lawyer, sat up and said clearly “I decline to answer on the grounds I might incriminate myself”

The Senator blew up. “What do you mean, you might incriminate yourself by us asking if your name is such and such? Is your name such and such?”

The witness leans over, whispers with his lawyer, sits up and says clearly into the microphone “yes”.

There were no other questions asked that received an answer.

One of the things that is happening is that the plaintiffs keep asking for a “Protective Order”. Until April, the court denied them all. It turns out that the state was demanding financial information, which would be extremely damaging to some of the plaintiffs. The sort of disclosures that would give their competitors a huge advantage.

In mid-April, the court denied the plaintiffs’ motion for a preliminary injunction.

To review, the steps in a case are:

  1. File Complaint
  2. Request a TRO
  3. TRO is granted or denied
  4. Appeal is made
  5. Arguments are made with the superior court as to why the appeal should be heard
  6. Appeal court denies or grants the appeal hearing
  7. Appeal court gathers briefs, gathers the record from the inferior court, hears arguments
  8. Appeal court issues their decision
  9. Parties argue for a summary judgement
  10. Court denies the summary judgement
  11. Plaintiffs request a preliminary injunction
  12. more briefings
  13. Hearing for the preliminary injunction is held.
  14. Court issues their order denying or granting of the preliminary injunction.
  15. The preliminary injunction is appealed.
  16. Repeat the appeal court process
  17. The parties present more briefs, more experts, more exhibits, more emotional blackmail
  18. There is a trial. The parties present “evidence”.
  19. The court issues their opinion and order
  20. The appeal is request

This case has completed steps 1-12. It was about to enter the hearing phase. The court on April 14th said “No, I deny a preliminary injunction, we are now skipping to step 17 because I am going to have the trial in the same time frame as we were originally planning on having a hearing for a Preliminary Injunction.

Conclusion

There are no 2A wins in this case, so far. It feels like the court has denied every motion by the plaintiffs.

On the other hand, there has been a huge flurry of filings in the last week. This case feels like it is rushing towards a crescendo.

Meanwhile, reach out to OFF, FPC, GOA or SAF and give them a pizza worth of support. There is a lot going on in these cases, and none of it is cheap.

        

Comments

One response to “Oregon Firearms Federation, Inc. v. Brown”

  1. Bad Dancer Avatar
    Bad Dancer

    Good summary, heartily agree with the AWA weight loss plan. A pizzas worth of support indeed!