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Verified Correct Copy of Original 12l15/2022._

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Oregon Judicial Department

TWENTY—FOURTH JUDICIAL DISTRICT
Robert S. Raschio, Presiding Judge

December 15, 2022

Tyler Smith & Associates, P.C. Oregon Department of Justice

Attn: Tyler Smith &Tony L Aiello, Jr Attn: Sr. A.G. Brian Marshall
181 N. Grant Street, Suite 212 1162 Court St. NE
Canby, OR 97013 Salem, OR 97301

Markwitz Herbold PC
Attn: Harry Wilson
Special Assistant Attorneys General
145 SW Broadway, Suite 1900
Portland, OR 97201

Re: Preliminary Injunction on Ballot Measure 114's Magazine Capacity

component: Joseph Arnold, Cliff Asmussen, et al, Plaintiffs v. Kate Brown,
Governor of the State of Oreqon, et al, Defendants, Harney County Circuit
Court case #22CV41008

Parties:

The court will issue a Preliminary Injunction under Oregon Rule of Civil
Procedure (ORCP) 79(A) on Ballot Measure 114 (BM 114) section eleven
known as the large capacity magazine prohibition until a full trial can be
held on the Complaint for Declaratory and lnjunctive Relief.

The court will maintain the Temporary Restraining Order under Oregon
Rule of Civil Procedure (ORCP) 79(A) on BM 114 sections one through ten
until the state provides notice that it is prepared to deploy a "Permit to

Harney Co. Courthouse, 450 N. Buena Vista #16, Burns, OR 97720; PHONE (541)573-5207 FAX (541)573-5715
Grant Co. Courthouse, 201 S. Humbolt St., P.O. Box 159, Canyon City, OR 97820; PH (541)575—1438 FAX (541)575-2165
www.courts.oregon.gov
Samantha Dowell, Trial Court Adminlstrator
 2-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
Verified Correct Copy of Original 12l15/2022._

Purchase" program. Upon receipt of notice, the court will hold a preliminary
injunction hearing within 10 days to determine if the program can
constitutionally be deployed.

The court cannot rely on a federal stay. There is a separate analysis and
identified right under Oregon law. The court adheres to its oral findings
from December 6 and 13, 2022.

Defendants are granted a hearing on December 23, 2022, regarding the

"Charleston" loophole portion of BM114. Defendants will identify in a
written notice the operative language at issue for that hearing by Friday,
December 16 at noon.

The court is segregating each matter because of BM 114, section 12

requiring severability in case of a finding of unconstitutionality of a
provision.

Turning to BM 114, section 11, the prohibition on large capacity magazines,

the findings in this opinion letter are not binding on the final legal and
factual determinations after a final trial on the complaint. The analysis is
limited to findings on the motion for a preliminary injunction.

The court must find that the facts as applied to the law show to a clear
conclusion under the factors of ORCP 79. See Wilson v. Parent, 228 Or
354, 369 (1961). The clear conclusion must find that the Plaintiffs have
established a likelihood of success on the merits which is weighed against
the other factors under ORCP 79.

Factual Findings

Findings one through 23 are from the pleadings and attached exhibits for
the temporary restraining hearing held December 6, 2022. Findings 23
through 37 are from the preliminary injunction hearing and associated
exhibits held on December 13, 2022:

All these findings are considered by the court:

1) At the Temporary Restraining Order hearing, Plaintiffs called a

credible factual witness, Ben Callaway, a Harney County firearms
dealer with a Federal Firearms License. Mr. Callaway testified
 3—Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.

most firearms currently sold can be modified to hold more than 10

Verified Correct Copy of Original 12l15/2022.

bullets by readily accessible kits and extenders meaning most

commonly owned firearms including shotguns and handguns may
not be legal for sale under BM 114 pursuant to the language in
section 11(1)(d)(A)(Exceptions to the restrictions on large
magazines include an "ammunition feeding device that has been
permanently altered so that it is not capable, now or in the future,
of accepting more than 10 rounds of ammunition"), because the
firearms will have no available operable magazines under the
prohibition.

2) ln Oregon, 593 people died from firearms in 2020. Defendant's

brief for Mandamus, pg. 4 fl
ex. 4 of said declaration. '

According to the Oregon Health Authority, there were 40,239

deaths that year. Aggregated, there were 158 deaths by homicide
and 835 deaths by suicide, obviously not all be firearms. Website
link: Oreqon Health Authoritv: Oreqon Death Data: Death Data:
State of Oreqon. Death by suicide would not require a large
magazine. In 2020, 122 of the homicides where with a weapon.
See Over Half of All Homicides in Oreqon Are Committed With a
Gun (msn.com). 70.5% of those weapons were firearms meaning
there were 86 homicides with a firearm. Id.

3) The number of rounds commonly needed by individuals to defend

themselves has not been systematically tracked, nor has the
number of rounds fired by individuals in self-defense. Marshall
Dec., ex. 1 (Declaration of Lucy P. Allen), pg. 3. Allen found from
the literature that .3% of 736 incidents of self-defense used more
than 1O rounds in the encounter since more than ten shots were
fired during the event. ld. at 5. 56% of all acts of self—defense
occurred in the home. ld. at 6. Large Capacity Magazines are
estimated to be used in 3 out of 10,000 acts of self—defense. None
of these statistics are Oregon specific, except for some information
in Exhibit B of the Allen declaration. Id. at 36-42.

4) Exhibit 1(B) determined that there were 179 recorded mass

shootings in the country from 1982 until October 13, 2022. Two of
those mass shootings occurred within Oregon causing the tragic
loss of 13 lives along with 24 others injured. (Thurston High
 4—Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.

School, May 21, 1998, and Umpqua Community College, October

Verified Correct Copy of Original 12l15/2022._

1, 2015). ld. at 38, 40.

5) The Declaration was prepared for California litigation. California

has no state constitutional right to bear arms.

6) The court finds the Colt multi-shot revolver was developed in the
18308 and appeared in the pre-Civil War West. Marshall Dec., ex.
2 (Declaration of Robert Spitzer), pg. 25.

7) Oregon first restricted machine guns in 1933. See ld. at 15 fl

1933 Or Law 488. The limitation was on fully automated
weapons described as a weapon of any description by whatever
name known, loaded or unloaded, which is designed or modified
to allow two or more shots to be fired by a single pressure on the
trigger device. The definition is still operable in Oregon. ORS
166.201(6).1 ORS 166.272 does not allow for possession of such
weapons?

8) The court finds the Spitzer Declaration conflates magazine

capacity with the firearm actions, to wit: automatic versus semi-
automatic, severely limiting its value to these proceedings.
Marshall Dec., ex. 3 (Declaration of Louis Klarevas) at
63(describing the definitions).

9) Since 1949, when the first mass shooting occurred, there have
been 3O mass shootings resulting in 1O or more deaths. ld. at 6.
None occurred in Oregon. ld. Of the mass shooting with fatalities
1
ORS 166.201(6): "Machine gun" means a weapon of any description by whatever name known, loaded
or unloaded, which is designed or modified to allow two or more shots to be fired by a single pressure on
the trigger
2
ORS 166.273: Unlawful possession of machine guns, certain short-barreled firearms and firearms
silencers. (1) A person commits the crime of unlawful posseSSIon of a machine gun, short—barreled rifle,
short-barreled shotgun or firearms Silencer if the person knowingly possesses any machine gun, short-
barreled rifle, short—barreled shotgun or firearms silencer. (2) Unlawful possession ofa machine gun, short-
barreled rifle, short-barreled shotgun or firearms silencer is a Class B felony (3) A peace officer may not
arrest or charge a person for violating subsection (1) of this section if the person has in the person's
immediate possession documentation showing that the machine gun, short-barreled rifle, short—barreled
shotgun or firearms silencer is registered as required under federal law. (4) It is an affirmative defense
to a charge of violating subsection (1) of this section that the machine gun, short-barreled rifle, short-
barreled shotgun or firearms Silencer was registered as reqUired under federal law. [1989 0.839 §13a; 1997
0.749 §8; 1997 0.798 §1].
 5-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
Verified Correct Copy of Original 12l15/2022._

of 14 or over, the assailants used large capacity magazines.

There have been 13 mass shootings with 14 or more fatalities
since 1966. ld. at pg. 6.

10) There have been 69 mass shooting events involving the death of 6
or more people from 1990 to 2017. 64% of those events involved
large capacity magazines, or 44 over that 27-year period. ld. at
44-49. The exhibit states, "[a]lthough 69 is a horrific number of
incidents, for statistical purposes, it is a relatively small number
and limited the power to detect significant associations...
Moreover, because of suboptimal statistical power, there is also
the possibility that the magnitude of the effects detected was
overstated" regarding the use of large capacity magazines in mass
shootings. Id. at 49-50

11) Further, the "impact of individual state firearm laws is reduced by

the fact that guns often move across state lines—occasionally
purchased in locales with more permissive law and taken to states
with more restrictive laws." ld. at 50.

12) "ln total, 1,460 people were injured or killed over the 37-year
period" in mass shootings from 1981-2017. Id. at 54. Harney
County has a population of 7495 people.

13) "Mass shooting fatalities, as a particular type of gun injury event,

account for <1% of all gun deaths..." ld. at 63.

14) Other types of gun violence, e.g. suicide, domestic violence

homicides and red flag order violations are not responsive to large
capacity magazine bans. Id. at 63.

15) The remainder of the study only looks at Full Automated Weapon
bans and cites by the author of the Declaration as making claims
of public policy benefits from large capacity magazine bans. ld. at
66. The study stated it could not create a distinct statistical
evaluation of whether such bans have an independent impact on
mass shootings from restrictions of the action of the firearms. Id.
at 66—67.
 6—Opinion Letter Re Arnoid, et al, Plaintiffs v. Kati Brown, et al, Defendants.

16) Marshall Dec., ex. 4 has no description of the effects of large

Verified Correct Copy of Original 12l15/2022._

capacity magazines in the 593 firearm deaths in Oregon in 2020,

though notes 455 of the deaths were from suicide.

17) Marshall Dec., ex. 5 is a study heavily relied upon by the

defendants entitled "Evidence concerning the regulation of
firearms design, sale, and carrying on fatal mass shootings in the
United States". The study indicates there were 604 mass shooting
events involving four or more fatalities from 1984 until 2017
equaling 2,976 homicides. Marshall Dec, ex. 5 at 11. "Nationally,
the annual rate of mass shooting fatalities per 1 million population
nationwide was .36 per 100,000 population..." ld. The results
were the researchers "found no evidence that concealed carry
laws, assault weapons bans, prohibitions for domestic abusers
and violent misdemeanants, or point-of-sale [criminal background
checks] were associated with the incidents of fatal mass
shootings." ld. Further, inferences cannot be made that large
capacity magazine bans have an effect on casualties, only that
there may such an inference. Even though there is evidence that
large capacity magazine bans and firearm licensing has an effect
on mass shooting incidents, "there are large confidence intervals."
ld. at 17. The final conclusion of the article on large capacity
magazines is striking to the court: "LCM bans also seem to reduce
the incident of fatal mass shootings". The court finds the article
states there no scientific certainty large capacity magazine bans
have an impact on fatalities and casualties. Marshall
Dec, ex. 5 at 28-42 (statistical significance of the large capacity
magazine ban on mass shootings is variable).

18) The mean annual rate of mass shootings in Oregon per 1 million
population is .06 and of fatalities is .30 per million of population.
Id. at 24. The data is not linked large capacity magazines usage.

19) Of importance in other parts of this litigation: "The findings of this

study suggest that the most common policy prescriptions offered
by advocates on each side of the debate over gun control—
comprehensive background checks and assault weapon bans on
one side and so-called "Right to Carry" laws reducing restrictions
on civilian concealed carry of firearms on the other side—do not
 7-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.

seem to be associated with the incidence of fatal mass shootings."

Verified Correct Copy of Original 12l15/2022._

ld. at 17.

20) Marshall Dec., ex. 6 does not apply to large capacity magazines.

21) Marshall Dec., ex. 7 (Declaration of Ryan Busse) states that "many
widely available guns are designed with universal magazine
acceptance. Many handguns can accept a magazine within 15 to
20 plus rounds...Firearms manufactures...can easily modify a
'high capacity' magazine into one that will accept only 10
rounds..." Marshall Dec., ex. 7 at 4. The most popular self—
defense firarms "in history" (1911 style pistol) come with standard
magazines of seven to eight rounds. ld. The model can be
adapted by interchangeable magazines to hold more than 1O
rounds. Id. Additional magazines can be purchased at a minimal
cost. ld. at 5.

22) Further, "buying multiple magazines and maintaining a large

supply of magazines is and has been encouraged by firearms
manufacturers and firearm retailers." Id. at 7. "Additionally, there
is a well-known sales spike for magazines whenever regulations
are implemented as consumers anticipate laws or 'grandfathering'
with purchases meant to ensure legal supply for a long period of
time." Id. "[M]ost gun owners purchase several magazines for
each gun...they can easily modify..." Id. at 8.

23) Of note for the preliminary injunction question, a "recent example

of this well—known reality includes 'freedom week' in California in
which a court allowed the sale and purchase of large-capacity
magazines during one week in Spring 2019 resulting in massive
sales spikes..." Id. at 7. The court finds that deliberate action
from the court is warranted to not create a whipsaw effect so
descnbed.

24) BM 114 is impacting the ability for firearms dealers to stock their
stores. Midway USA, a national distributor of firearms, is issuing
the following: "Order Contains Restricted Products. These
products cannot be included in your order clue to the following:
Oregon has restricted the sale of magazines that have a capacity
 8-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.

of more than ten rounds, or those that can be adapted to hold

Verified Correct Copy of Original 12l15/2022._

more than ten rounds—e.g., those with floor plate or end plate."
Plaintiffs Preliminary injunction Hearing (PlH) ex. 1. Plaintiffs PlH
ex. 11 shows the same result with other manufacturers.

25) California's restriction on large capacity magazines is much

narrower than BM 114. See Plaintiffs PlH ex. 5.

26) Defendants offer an exhibit showing firearm manufacturers do

offer magazines of 1O rounds or less that are California compliant.
Defendants PlH Declaration of Greg Scott and ex. 1—10, pg. 1-112.
Most appear through the testimony and exhibits to be capable of
ready modification to increase capacity.

27) Mr. Callaway creditably testified at the preliminary injunction

hearing that most, if not all, current magazines are readily
adaptable or easily modifiable within a period of seconds with a
hand drill or pocketknife to be able to hold more than ten rounds
with all popular gun brands. The defense expert, James
Yurgealitis, did not dispute that testimony. ln fact, he stated
"anything is possible" for modifying magazines with a technical skill
range of little to some. The adaptability of magazines includes just
taping two magazines together to create one with a twenty-round
capacfly.

28) Mr. Callaway also testified that fix plates on magazines diminish
the life of the magazines since they cannot be maintained. The
defendants raised the length of magazine life as part of their
analysis of why BM 114 has no impact on current large capacity
magazine owners. Mr. Callaway described that the normal
approach of cleaning magazines for safety and functionality is to
remove the end plate after every second use to clean out the
grime and oil the spring mechanism. He testified it was not
possible to do the same cleaning process with fixed end plates
thus significantly diminishing the product's use potential. Mr.
Yurgealitis described using air compression, cleaning fluid baths
and ultrasound technology to clean those mechanisms, a process
which is time consuming, requires special equipment and is
expensive in comparison to detachable face plate cleaning
 9-Opinion Letter Re Arnold, et ai, Plaintiffs v. Kati Brown, et al, Defendants.

techniques and is not as effective as the detachable end plate

Verified Correct Copy of Original 12l15/2022.

design.

29) Replacing magazines, according to Mr. Callway, generally costs

$40 to $50. The process creates a cost prohibition to owning
firearms, particularly for indigent.

30) Mr. Yurgealitis noted that there are magazines for the commercial
market with magazine restrictions. The otherjurisdictions do not
have adaptability restrictions. As he testified, in direct testimony,
there is "no magazine on the market that cannot be modified"
because of the floorplate.

31) Dr. Brian DeLay testified that the development of firearms was
significant between 1860 and 1872. He, also, submitted a
separately filed declaration on December 12, 2022. The testimony
was crafted to eliminate the time and effort made in that
development. He testified that during Polk's War of 1846 to 1848,
multi-capacity revolvers and rifles were in use and for sale to the
private market. Emigrants on the Oregon trail had the same types
of firearms. Large capacity magazines protypes were in
development since 1580, though not generally in the marketplace
largely due to a lack of functional stability for use by the public.
But, "almost certainly" the framers and adopters of the Oregon
Constitution would have been aware of those developments and
the ongoing developments in firearm technology. The Kopple Law
Review article comes to the same conclusion about the multi—
round technology development and public knowledge around
statehood. Plaintiffs PIH ex. 4. As does the Hlebrinsky
Declaration on the technology of that timeframe. Plaintiffs PIH, ex.
7. All these experts agree that there was no clear distinction
between private and military use at the time of statehood. Dr.
DeLay did testify that most private gun manufacturers were
angling for military contracts but would sell any firearm to private
citizens in they could afford one. Private citizen purchases
supported their own self-defense and defense of the state in the
form of militia activities. Meriwether Lewis bought his large
capacity magazine weapon for the expedition. The Hornback
exhibit bolsters this factual finding regarding the broad scope of
 10—Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.

firearms used by early leaders and settlers in Oregon. Plaintiffs

Verified Correct Copy of Original 12l15/2022.

PlH ex. 10.

32) Dr. DeLay testified there were no historical antecedents in the law
banning any type of firearm in 1857 to 1859. Hlebrinsky, also,
finds that there were no historical antecedents. Plaintiffs' PlH ex.
9. DeLay and Hlebrinsky agreed laws banning particular
possession of types of firearms did not begin generally until the
20th century, post—dating statehood.

33) Magazines are an integral part of firearms. gee Plaintiffs PlH ex.
6, at 12—25. Limiting magazine sizes has a direct impact on who
can use a firearm in self-defense. Weaker individuals cannot use
larger caliber firearms due to the recoil impact for self-defense.
Weaker individuals compensate for the inability to use larger
caliber ammunition with by large magazines. Id. at 15-16.

34) Unlikely declarant Busse, declarant Hanish states that large

capacity magazines are in fact ubiquitous. Id. at 18.

35) The article by William English, Ph.D., at Georgetown University,

"2021 National Firearm Survey: Updated Analysis including Types
of Firearms Owned, Expanded Report May 13, 2022". is of note to
the court's findings on the question of "ubiquitous". Plaintiffs PlH
ex. 6, 26-82.

36) ln Vermont, 30% of the state's residents own firearms. Of those

30%, 29.3% have used a firearm in self-defense in which 45.9% of
the incidents were against multiple assailants. ld. at 65.

37) The current rate of gun ownership in the country is 31.9%.

Plaintiffs PlH ex. 6, 27. Of that group, 31.1% have used their guns
in self—defense. Id. at 34.

38) ln Oregon, 38.3% of citizens are estimated to own firearms. ld at

35. Of those, 49.8% are estimated to own magazines that hold 11
plus rounds. ld. at 52.
 11-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
Verified Correct Copy of Original 12l15/2022._

With those facts, the role of the judiciary is to determine whether Ballot
Measure 114, section 11 exceeds the legal limits of the people's authority
under the Oregon Constitution. See Elkhorn Baptist Church v. Brown, 366
Or 506, 510 (2020).

Article l, Section 27 Analysis:

Oregon Constitution provides the right for the people "to bear arms for the
defense of themselves, and the state". Oregon Constitution Article l,
section 27.

As pointed out by the Defendants, the Oregon Constitution "has content

independent of that of the federal constitution." State v. Soriano, 68 Or App
642, 645 (1984).3 Therefore, any irreparable harm of BM 114 must be
considered separately under Oregon law and is not dependent on a federal
determination. The pleading before this court focused solely on the
Oregon Constitution.

The Oregon Constitution must be at least as protective as the Federal

Constitution on any matter of a constitutional right.4 lf it is not, the question
becomes, does the United State Constitution have a more protective right
thus making the Oregon provision unenforceable pursuant to Supremacy
Clause.

According to Hon. Jack L. Landau, retired Oregon Supreme Court Justice:

ln some cases, the court adopted a historical or originalist
approach, as in State v. Kessler. That case involved the meaning
of Article l, § 27, which guarantees the right to bear arms. The
court observed that federal court decisions construing the
Second Amendment guarantee of a right to bear arms "are not
particularly helpful." Turning to the meaning of the state

3
While this court disagrees with some of the factual conclusions of U S. District Court Judge Karin
Immergut, which are not binding on Oregon state courts, she Is analyzing the measure under the Second
Amendmentjurisprudence. This court does not reach that analysis since there is a clear preliminary
showing that the measure is unconstitutional under Oregon Constitution Article l, section 27 by reading
the prowsron and Oregon jurisprudence related to the constitutional protection provided to the citizens of
Oregon to "bear arms for the defense of themselves, and the state".
4
The Second Amendment to the U.S. Constitution reads "A well-regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Plainly
read, the Second Amendment right to bear arms is captured in the "and the state" language of Article l,
section 27.
 12—Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.

constitutional guarantee, the court declared that its task was "to
Verified Correct Copy of Original 12l15/2022._

respect the principles given the status of constitutional

guarantees and limitations by the drafters The court set out
a history of the provision, from its roots in the English Bill of
Rights of 1689 to colonial American fears of standing armies and
concerns for personal safety to the state constitution of Indiana,
from which the Oregon guarantee was borrowed. ln the end, the
court concluded that the "arms" that the state constitution
guarantees a right to possess consist of those that would have
been used by nineteenth—century settlers for personal defense
and military purposes.

Jack Landau, "An Introduction to Oregon Constitutional Interpretation", 55

Willamette L. Rev. 261, 265-66, Spring 2019.
The judicial review concept of precision in the drafting the Constitution of
Oregon started in 1863: "If the framers of the Constitution had intended to
limit them to one hundred dollars, they could and certainly would have used
different and more appropriate language to embody their intention." Noland
v. Costello, 2 Or. 57, 58 (1863). State v. Hirsch similarly cited a range of
modern treatises and articles on the historical origins of the constitutional
right to bear arms, as well as more contemporaneous sources, including
writings of the framers of the Second Amendment, on which Article l,
Section 27, of the Oregon Constitution is a decedent. See, e.q., State v.
Hirsch, 114 P.3d 1104, 1109 (Or. 2005) ("[W]e must discern the intent of
the drafters of Article l, Section 27, and the people who adopted it.").

"A constitution is dependent upon ratification by the people. lts language

should therefore be considered in the sense most obvious to the common
understanding of the people at the time of its adoption." Landau at 266.

This court is bound by the interpretation of the Oregon Constitution by the

Supreme Court and Courts of Appeals of Oregon.

The current constitutional interpretation under Article l, section 27 is found

in State v. Christian, 354 Or. 22 (2013). First, the Oregon Constitution
allows for reasonable restriction on ownership of weapons that promote
public safety. fl. at 33-34. Second, the reasonable restrictions cannot
 13-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.

unduly frustrate the right to bear arms. l_q. at 38. ("...the legislature may
Verified Correct Copy of Original 12l15/2022._

specifically regulate the manner of possession and the use of protected

weapons to promote public safety as long as the exercise of that authority
does not unduly frustrate the right to bear arms guaranteed by Article l,
section 27.").5

The holding limits the inquiry to a facial challenge of the constitutionality of

a statute. Christian at 40.

The Supreme Court indicated that total bans on types of weapons and
firearms used for self and state defense violates Article l, section 27. fl. at
40-41 quotinq State v. Delqado, 298 Or 395 at 403-404 ("The problem here
is that ORS 166.510(1) absolutely prescribes the mere possession or
carrying of such arms [switchblades]. This the constitution does not
permit").

The evidence shows the distinction the defendants are trying to draw
between firearms and magazines is a fiction. Firearms do not function
without magazines. An analogy would be making a distinction between a
car and its engine.

ORCP 79 Analysis:

With this constitutional analytical framework in mind, the court will turn to
the requirement of ORCP 79(A)(1)(a) for a preliminary injunction.

"When determining whether to issue a preliminary injunction, courts

consider, among other things, the likelihood that the party requesting the
injunction will ultimately prevail on the merits of its claim and whether, if the
injunction is not issued, the party will be irreparably harmed during the
litigation of the claim. Courts also balance the harm to the movant against
harm to the opposing party and the public if the injunction is issued."
Elkhorn Baptist Church v. Brown, 366 Or 506, 518—519 (Internal citations
removed).

5
The Oregon Supreme Court, in its early interpretations of the Oregon Constitution ask the lower courts
to consider "what did those conservative pioneer citizens have In mind." Jones v. Hoss, 132 Or 175, 178-
179 (1930).
 14-Opinion Letter Re Arnold, et ai, Plaintiffs v. Kati Brown, et al, Defendants.

Application of the law to BM114 must lead the court to a clear conclusion
Verified Correct Copy of Original 12l15/2022._

that those factors are met preliminarily. See Wilson v. Parent, 228 Or 354,
369 (1961).

The preliminary injunction requires the plaintiff to meet the burden of

production or persuasion by the providing evidence. See Arlinqton Sch.
Dist. No. 3 v. Arlinqton Educ. Ass'n, 184 Or App 97, 102 (2002).

The plaintiffs have produced such clear and persuasive evidence. The
defendants evidence bolsters the clarity of the court's determination.

(1)Likelihood of success.
BM 114, section 11 will dramatically change the rules on law abiding
citizens who currently own weapons or wish to purchase weapons with
large capacity magazines. The vast majority of gun owners are responsible,
careful citizens with a great deal of respect and care for their firearms and
only use them for law purposes including self—defense.

The large capacity magazines provisions will go into effect unless the court
issues a preliminary injunction immediately impacting their constitutional
right to bear arms.

a) Construction of BM 114, section 11

BM 114, section 11 is titled "Prohibitions/Exceptions to Large-Capacity

Magazines. The court will focus on specific language but has considered
6

the section as a whole.

Section 11 prohibits any fixed (built into the gun) or detachable (external
clips) magazines that hold over ten rounds of ammunition. "Large-capacity
magazine" means a fixed or detachable magazine, belt, drum, feed strip,
helical feeding device, or similar device, including any such devicejoined or
coupled with another in any manner, or a kit with such parts, that has an
overall capacity of, or that can be readily restored, changed, or converted
to accept, more than 1O rounds of ammunition..." BM 114 section 11(d).

6
Section attached as Exhibit
11 is 1 of the Defendants' response to Plaintiffs' motion for a temporary
restraining order.
 15-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.

The prohibition has an exception for "ammunition feeding device that has
Verified Correct Copy of Original 12l15/2022._

been permanently altered so that it is not capable, now or in the future, of

accepting more than 10 rounds of ammunition." BM 114 section 11(d)(A).

A new Class A misdemeanor is created for anyone who manufactures,

imports, possesses, uses, purchases, sells or otherwise transfers any large
capacity magazine upon effective date. BM 114 section 11(2), (6). The
ban does not apply to sales to the military or law enforcement. BM 114
section 11 (4).

BM 114 section 11(5) creates an affirmative defense to the crime. The

accused would need to prove they possessed the large capacity magazine
prior to adoption of the measure. Then the accused would need to prove
that their possession the item was in use in specific ways and/or kept in
specific places. If they chose, owners could relinquish their property prior
to "commencement of prosecution by arrest, citation, or a formal charge."
Id. at (5)(d). The court assumes that the investigative agency would have
broad discretion as to when to arrest the individual eliminating the option of
just giving up the item.

The section requires licensed gun dealers cease sales immediately and
within 180 days to alter or divest from all banned items. BM 114, section
11(3).

b) Existence of Large Capacity Magazines at Statehood.

The Plaintiffs demonstrate that firearms with magazine capacity over 1O

rounds of ammunition were in existence at the adoption of the Oregon
Constitution in 1857. Plaintiffs' Motion for Order to Show Cause, pg. 15-17.
Article l, section 27 was adopted without any noted debate by the
delegates. Claudia Brown and Andrew Grade, "A Legislative History of
Oregon", 37 Willamette L. Rev. 469 (2001). The court infers from that
silent record that no concerns were raised over the types of firearms
allowed for self or state defense. The defendant does not point to any co—
occurring Oregon statute proscribing large magazine firearms for citizens or
any other types of weapons.

The Oregon Supreme Court has held modern equivalents to the weapon
today is "substantially different from its historical antecedent" and that the
drafters were "aware that technological changes were occurring in
 16—Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
Verified Correct Copy of Original 12l15/2022._

weaponry as in tools generally." Delgado, 298 or at 403. The Court could

not "freeze the meaning of the state constitution to the time of adoption, but
is instead to identify, in light of the meaning understood by the framers,
relevant underlying principles that may inform...the constitutional text to
modern circumstances." Couev v. Atkins, 257 Or 460, 490 (2015) (internal
citations omitted). The analysis of this court is that the framers and the
population were aware of, and even anticipating, more powerful firearms
including with larger magazine capacities.

The caselaw does not suggest that the firearms development is frozen in
time at founding as is argued by the defendants. In fact, the courts have
assumed development over time. As such, the court finds that the firearms
today are the direct decedents of the firearms from the timeframe of
statehood: multi—shot handguns and rifles. The type of magazine is
essential to the protective power of the firearm as was testified to by one of
the defendants' witnesses.

The precedent in Oregon shows no historical statutory bans on the size of

magazines or on the types of firearms until 1933. All preceding restrictions
were on use, e.g. prohibitions on riding horses through town terrifying
neighbors with firearms.

The right to bear arms included military firearms used for state and self—
defense at the time the provision was drafted. 7 As noted, large capacity
magazines predated the automation and mass production of metals. Large
capacity magazines existed in the 18303, nearly two hundred years ago.
The type of firearm with a large capacity magazine was known and used for
self-defense at statehood and would have been understood to be firearm

7
State v. Kessler 289 Or. at 369, 614 P.2d 94, the court held: 'Firearms and other hand-carried
"In
weapons remained the weapons of personal defense, but the arrival of steam power, mechanization, and
chemical discoveries completely changed the weapons of military warfare. The development of powerful
explosives in the mid-nineteenth century, combined with the development of mass-produced metal parts,
made pOSSIble the automatic weapons, explosive, and chemicals of modern warfare P Cleator, Weapons
'
of War 153—177 (1967) Oreqon State Shootlnq Ass'n v. Multnomah Cntv., 122 Or. App. 540, 545—46,
858 P.2d 1315, 1319—20 (1993). Automatic weapons are banned in Oregon as are other military grade
weapons.

Kessler subject matter was billy clubs and not firearms. All discussions regarding firearms is dicta.
 17-Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.

being developed for militia usage and self-defense. See Christian, 354 at
Verified Correct Copy of Original 12l15/2022._

30 quotinq State v. Kessler, 289 Or 359, 368 (1980).8,9

The court finds that magazines indistinguishable from the firearms they
power and are protected weapons and Ballot Measure 114, section 11 acts
on a prohibition on firearms and their protected uses under Article l, section
27.

c) Public safety

President Barack Obama eulogized to the Sandy Hook Families in Newton,

Connecticut a decade ago, the court echoes, "l am very mindful that mere
words cannot match the depths of your sorrow, nor can they heal your
wounded hearts."

The court is incapable improving on that important, profound sentiment.

The Defendants concede the ballot measure's intention is to reduce mass
shooflngs.
Mr. Marshall, for the Defendants, is right that mass shootings deliver a
special type of terror in our heart and minds and that the majority of voters
in Oregon believed that banning large capacity magazines would help to
relieve a "grave and immediate risk to the health, safety and well-being of
the citizens of this state." BM 114, Preamble.

The facts do not support their conclusion.

"[J]udges must...not be intimidated into upholding majority rule." Edward

Trompke, "A Natural Tension", Or. St. B. Bull., Feb/March 2002, at 9, 14.
"Judicial independence and judicial accountability are both shields and
swords, but both are intended to protect judges, to allow them to fairly
decide all cases, and ultimately to protect the rights of every person." ld. at
15.

8
Kessler found that the term "arms" in Article l, sec 27 are weapons used by militia and for self—defense
maintained by the indIVIdual. 289 at 370 Kessler also announced that "regulation is valid If the aim of
"
public safety does not frustrate the guarantees of the state constitution Id.
9
See Plaintiffs Motion Pg. 16 on firearm development. The Defendants have not shown that large
capacrty magazmes are "advanced weapons of modern warfare", fl Defendants' Response, pg. 10
Quoting Kessler at 369. The court weighs that assertion against the ubiquitous nature of large capacity
magazine in distribution to the public.
 18—Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
Verified Correct Copy of Original 12l15/2022._

Oregon Constitution allows for reasonable restrictions to promote public

safety. Christian at 33-34. The promotion of public safety cannot be based
upon a merely speculative harm.

BM 114, section 11 does not restrain dangerous practices or regulate the

carrying or use of firearms, only the possession of a ubiquitous weapon
design. ld. at 32. "[A]ny restriction must satisfy the purpose of the
authority in the face of Article l, section 27: the protection of public safety."
ld. at 33 quotinq State v. Hirsch/Friend at 677.

While the preamble of the ballot measure states it promotes public safety,
the court finds from both sides' pleadings and exhibits, it does not do so in
any measurable way. Their primary article states the restrictions on large
capacity magazines seems to have an effect on the outcome of mass
shooting events, but the sample size is too small to say definitively.
Factual finding 17. Correlation does not equal causation.

Further, the court finds that there is less than a 1 in 1,000,000 chance of a
person being a fatality in a mass shooting in Oregon, and even less with an
offender who is using large capacity magazines. 1°

That the large capacity magazine bans promote public safety is mere
speculation." The court cannot sustain a restraint on a constitutional right
on mere speculation that the restriction could promote public safety.
Certainly, a court cannot use a mere speculation in determining guilt in a
criminal case, damages in a negligence case, future harm in a parole
matter, or the many other legal matters where disallowing that outcome.
See State v. Hedqpeth, 365 Or 724, 733 (2019); Smith v. Providence
Health & Servs Oreqon, 361 Or 456, 475—76 (2017); Smith v. Bd. of
—

Parole & Post-Prison Supervision, 343 Or 410, 419 (2007); Lea v. Gino's

1°
Large Capacity Magazines are used in 3 out of every 10,000 incidents of self—defense outside of the home, a
constitutionally protected activity. There is no analysis of such use when defending the home. See Defendant's
Response, pg. 12. BM 114, section 11 makes it illegal to possess large capacity magazines in the home unless the
accused provides affirmative proof of ownership prior to passage and that the possession met one of the
exceptions under the law.
11
Defendants argue that every mass shooting since 2004 with 14 or more deaths used large capacity magazines.
See Defendants' Response, pg. 14. They fail to note that there have been ten such events In last eighteen years as
is borne out in their exhibits. See Marshall Dec, Ex. 1, pg. 36—40. There have been 110 mass shootings of four or
more victims in the same timeframe, many of which did not involve large capacity magazines. Id.
 19—Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.

Pizza Inn, lnc., 271 Or 682, 688 (1975) ("Prosser on Torts (2nd ed), s 42, p.
Verified Correct Copy of Original 12l15/2022._

200 expresses What is required is evidence from which reasonable men

may conclude that, upon the whole, it is more likely that there was
negligence than that there was not. Where the conclusion is a matter
of mere speculation or conjecture, or where the probabilities are at best
evenly balanced between negligence and its absence, it becomes the duty
of the court to direct the jury that the burden of proof has not been
sustained")
Firearms owners deploy more than ten rounds in three out of 10,000 legal
acts of self—defense which is frequency of 100 times higher than any
chance of fatality from a mass shooting. The right to bear arms in self-
defense is constitutionally protected and is presumed to protect public
safety using the current technology of the day.

BM 114, section 11 does not reasonably promote public safety, meaning it

not a permissible legislative regulation, therefore it is facially
unconstitutional prior to analyzing how unduly burdensome the measure is
on firearm ownership." Magazine size is a regulation on a firearm. That
regulation must reasonably promote public safety. Large capacity
magazine prohibition has not been shown to promote public safety in a
calculatable way beyond the protection already achieved by the status quo.

The court cannot read BM 114, section 11 in any way that creates a
constitutional act.

d) Unduly Burdensome.

Even if BM 114, section 11 is a reasonable restriction, it cannot unduly

frustrate the right to bear arms. Christian at 38. BM 114, section 11
restrictions on current gun ownership and future purchases unduly
frustrates the right to bear arms under Article l, sec. 27.

Considering the testimony of Callaway, Yurgealitis and Declarant Busse:

most commonly sold firearms can be adapted by interchangeable

12
Defendants' analysis on page 11 regarding regression analysis overstates their own literature significantly. Their
own literature states that there seems to be a correlation as hypothesis due to the very small statistical size and
the incompleteness of the literature. See factual finding 17.
 20-Opinion Letter Re Arnold, et al, Plaintiffs V. Kati Brown, et al, Defendants
Verified Correct Copy of Original 12l15/2022._

magazines to hold more than 10 rounds. Most, if not all, magazines are
readily modifiable to hold more than 10 rounds.

Magazines are necessary to make firearm operable. Fvock v. Citv of

Sunnydale, 779 F3d 991, 998 (9th Cir 2015).

A plain reading of BM 114, section 11(d) makes the sale, possession or

transfer, except upon death, of those firearms punishable by crime. Those
firearms with magazines are capable, now or in the future, of readily
restored, changed, or being converted to accept more than ten rounds.
Based upon the preliminary evidence, the result of BM 114 would be a near
absolute prohibition on handguns and many other firearms with their
magazines. See Delqado at 403—4.

Further, the Court of Appeals rejected the notion of modification to make a

firearm legal, after the fact, under Oreqon State Shooting Ass'n v.
Multnomah Cntv., 122 Or. App. 540, 548—49, 858 P.2d 1315, 1321 (1993):

While is argued by the defendants the firearms can be

it
modified to meet the requirements of BM 114, the law does not
support the proposition. The dissent concludes that, because
the "semi-automatic firearms may be illegally modified to
become automatic weapons * * * is not a reason to deprive
them of section 27 protection under the tests adopted by the
Supreme Court." 122 Or. App. at 556, 858 P.2d at 1325. That is
backwards. The weapons have been modified, ostensibly so
that they will not be classified as military weapons, which, under
the Supreme Court's tests are not entitled to the constitutional
protection. Those "modifications" cannot be used to bootstrap
these weapons into personal defense weapons so that they
come within the constitutional protection. The weapons are not
the "sort" of weapons for defense of self intended by the
drafters to come within Article l, section 27.

BM 114, sec 11 provides no definition on how such a modification would be

permanent in the eyes of the law.

There is restraint on purchase, transfer, and possession of firearms with

large capacity magazines fixed or detachable. Any firearm that can be
modified to hold a large capacity magazine is also prohibited to be sold in
 21—Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.

the State of Oregon. lf a future kit is developed to modify a current model

Verified Correct Copy of Original 12l15/2022._

of magazine or firearm, that model would then become immediately

prohibited under BM 114, sec 11. Kits can be used to expand fixed
magazines.

Most, if not all, firearms requiring detachable magazines will be unusable

and unpurchasable under BM 114, section. Since most, if not all,
detachable magazines can be "readily restored, changed or converted to
accept" more than ten rounds, those cannot be sold under this law. BM
114, section 11, (1)(d). See factual findings 24-29. There is no other way
to read the provision that would make it facial constitutional. The "or"
component language restrains the number of firearms that could be sold to
less than 10% of what is currently on the market.

Current owners of large capacity magazines are criminalized under the law.
As is pointed out by the plaintiffs, "BM 114 provides no general exception
even for continuing to possess magazines already owned prior to the
effective date. Rather, BM 114 provides a mere 'affirmative defense'."

Iffound with a large capacity magazine, the owner has a choice of

relinquishing the large capacity magazine without further process or face
arrest at an officer's discretion. BM 114, sec 11(5)(d) fl fig
Defendants'
response, pg. 4.

Once arrested and criminally charged with a Class A misdemeanor, with a

maximum penalty of 364 days in jail and a fine up to $6,250, the accused
can exercise an affirmative defense proving the possession of the large
capacity magazine prior to passage of BM 114, section 11.

An affirmative defense places the burden on the accused to prove their

right to possess the large capacity magazine by a preponderance of the
evidence. S_ee_ Oregon State Bar Bar Books, Criminal Law in Oregon,
section 19.1—2. Proof may be testimony subject to creditability
determination by the fact finder but is, generally, better bolstered by
documentation. All of the exceptions to the crime in section 11(c) are also
part of an affirmative defense. The accused must establish proper storage,
on the private property of the owner or while engaging in public or private
shooting range or hunting and that if they were transporting the magazine,
it was in a vehicle lock box. In other words, the possession is presumed
illegal until the accused owner of the large capacity magazine proves
 22—Opinion Letter Re Arnold, et ai, Plaintiffs v. Kati Brown, et al, Defendants.

otherwise in a court of law after the state had established a prima facia
Verified Correct Copy of Original 12l15/2022._

case of guilty by surviving a motion forjudgment of acquittal.

Defending against a criminal charge is expensive, time consuming and

extremely stressful with private legalcounsel. All indigent defendants would
face the same challenges, except would be entitled to court-appointed
counsel. 13

e) Preliminary Conclusion on Likelihood of Success.

Under these findings and legal analysis, "there can be no reasonably likely
circumstance in which application of [section 11] would pass constitutional
muster." Christian at 41.

The statutory scheme is very burdensome on lawful firearm owners who

possess large capacity magazines legally now. Clear from the preliminary
record, magazines capable of holding more than ten rounds come standard
with many popular firearms and firearm platforms on the market today and
are possessed by law—abiding citizens for lawful purposes. The measure
criminalizing currently lawful conduct creating presumed criminals out of 1
in every 5 Oregonians. ln other words, under Christian, the regulations are
unduly burdensome on currently lawful conduct and are without a public
safety promotion.

The court is clearly persuaded the plaintiffs have a likelihood of success of

showing BM 114, section 11 is unconstitutional under Article l, section 27.
The court will not turn to the federal constitution.

(2)lmminent and lrreparable Harm.

Plaintiffs show implementation of BM 114 would, if their challenge is

successful, cause an irreparable harm to gun owners and those seeking to
purchase firearms for self-defense. Any depravation of a constitutional
right, even temporarily, constitutes an irreparable injury. See Elkhorn
Baptist Church v. Brown, 366 Or 506, 519, fl
366 Or at 546 (2020)
(Garrett, J., concurring).

13
"The public defense crisis is playing out throughout the state...this too is exponentially worse in rural
areas for a wide variety of reason." Oregon State Bar President Kamron Graham, "Rural Oregon Needs
Our Engagement", Oregon State Bar Bulletin, December 2022, pg 30. Rural Oregon is a place with a
rich culture of firearm ownership and pride in their capacity to handle their use Without interference.
 23—Opini0n Letter Re Arnold, et ai, Plaintiffs v. Kati Brown, et al, Defendants.
Verified Correct Copy of Original 12l15/2022._

The Plaintiffs have shown there is a likelihood that the court will find the
section facially unconstitutional. Christian at 40.

There are no circumstances where section could be constitutional. The

Defendants state as a "practical matter, Plaintiffs can continue to 'keep and
bear arms". Defendant's response, pg. 12.14 On its face, that statement
may seem persuasive, but that is borne by the facts. The state can only
fetter the right to bear arms with a clear showing that the regulation
promotes public safety and is not unduly burdensome. BM 114, section 11
fails to meet either legal standard.

Defendants have not shown how delaying implementation would cause

imminent and irreparable harm. This is particularly emphasized by the
delay in implementation of the "permit-to-purchase" program. The status
quo is not improved by implementation of the BM 114, section 11.

(3)Balancing Harms.
There is little to no harm in delaying implementation of BM 114 while the
parties prepare and present evidence at an injunction hearing.

Based upon the court findings, there is a clear preliminary showing of an

irreparable harm to the right to bear arms under Article l, section 27 under
BM 114, sec 11 preventing a mere speculative harm of allowing the
ongoing possession and purchase of large capacity magazines.

The numbers are starkly support of this preliminary determination. lf

in
allowed to go into effect, 1 in 19 of all Oregonians are presumed guilty of a
class A misdemeanor unless they can prove otherwise. See Factual
Finding 38. More than ten rounds are needed in three out of every 10,000
acts of legal, justifiable self-defense acts. The chance of being a fatality in
a mass shooting in Oregon is .3 in a million. There have been 13 mass
shootings with 14 or more fatalities since 1966, a very low number with
naturally high emotionally responses.

14
Defendants even argue that both "firearms and magazines are durable goods with a long useful life.
Plaintiffs can continue to keep and bear the arms they currently possess. There Is no analysis for the
Defendants on how many mass shootings used large capacrty magazine and how many of those were
newly purchased. The evidence is also that the fixed plate magazines do not have a long and useful life.
The long and useful life relies on the ability to remove the base/floor plate for regular cleaning.
 24—Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.
Verified Correct Copy of Original 12l15/2022._

Finally, the defendants' own literature "seems" to show that the ban will
help with fatalities. No definitive scientific evidence has been provided that
large capacity magazine bans have any impact on the number of fatalities
or casualties now or in future events.

The implementation of BM 114, section 11 would have an immediate

impact on the liberty interests of 1 in 5 Oregonians and make it harder for
the weaker individuals in our society to defend themselves against
attackers.

(4)Public Interest.
The legal standard is "there are situations where the public interest would
be so seriously affected by the issuance of an injunction that the court will
deny an application therefor". Elkhorn Baptist Church v. Brown, 366 Or
544 quotinq Bennett v. City of Salem, et al, 192 Or 531, 546 (1951).

As described above, the public interest in this matter is real and significant.
The people of Oregon voted for the measure by a margin of 975,553
(50.65%) for the measure, and 950,589 (49.35%) against. Oregon
Secretary of State website, State of Oreqon: Votinq & Elections Votinq & -

Elections. The court acknowledges the proponents demonstrated that our

society has become exacerbated by the relentless news about mass
shootings in the country and the slaughter of innocents. BM114, Preamble.

However, there is strong evidence presented by the proponents of BM114

that public safety is not promoted by the exercise of the authority contained
in BM114 and the measure unduly frustrates the right to bear arms making
it unconstitutional. There is a nearly equal public interest in issuing a
preliminary injunction.

There is a serious harm to the public interest, as well, when individuals are
arrested, prosecuted and convicted of a Class A misdemeanor under an
unconstitutional statutory regime, a potential if BM114 is allowed to go in
effect at this time.

A delay forjudicial review of the constitutionality of the measure outweighs

immediate implementation subject to potentially overturning the measure
after the review. The public interest demands judicial scrutiny and
 25—Opinion Letter Re Arnold, et al, Plaintiffs v. Kati Brown, et al, Defendants.

deliberation to avoid a see-sawing back and forth on this issue. A final

Verified Correct Copy of Original 12l15/2022._

determination needs to be made on the constitutionality of the measure

prior to lifting any injunction.

On balance, the public interest in implementation of BM114 weighs in favor

of the Preliminary.

CONCLUSION

The court ORDERS the temporary restraining order remains on Ballot

Measure 114, sections one through ten. Upon receipt of notice from the
Defendants the "permit to purchase" process is administratively ready, the
court will hold a preliminary injunction hearing within 1O days, unless fixed
by the court on a different date, to determine if the program can
constitutionally be implemented.

The next hearing related to background checks will be on December 23,

2022, at 10:00 AM as noted above. The identified statutory provisions of
the law subject to that review will be filed by Defendants in writing by
December 16, 2022 at noon.

The court ORDERS a preliminary injunction is GRANTED as to Ballot

Measure 114, section 11 until a full hearing on the complaint can be heard
where the court can determine by clear and convincing evidence whether
BM 114, sec. 11 is constitutional under Article l, sec 27.

Plaintiffs shall prepare each order separately and submit them by ~

December 16, 2022, at noon.

So Ordered,

CIA—:7? '

Robert S. Raschio
24'" Judicial District
Presiding Circuit Court Judge