ILA | In NRA Supported Lawsuit, Oregon’s Top Court Rejects Flawed “Gun Safety” Ballot Title, Description

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The NRA has a great record of ensuring that the language used for ballot measures in Oregon is fair, accurate and clear. In 2018, an NRA-backed challenge successfully opposed the language of proposed ballot titles for Initiative Petition 43 (a failed “assault weapons” and magazines ban) and Initiative Petition 44 (likewise withdrawn).   

In the most recent instance, Oregons highest court again agreed with the NRA in a case arising out of a challenge to the ballot title for a “gun safety” initiative.

Initiative Petition 40 was filed last year, intended for inclusion on the November 2020 ballot. If passed, this measure would significantly restrict the ability to keep a firearm available for defensive use. It would result in state legislation mandating that firearms that are not being carried or under direct control be kept locked or placed in locked storage, as set out in the initiative. The owner or possessor of a gun would face criminal liability for failing to secure a gun.

In addition to compromising the personal safety of lawful gun owners, the initiative contains an unusual and punitive civil liability component. An owner or possessor who violates the gun-securing requirement, regardless of inadvertence, negligence, recklessness or harmful intent, would be strictly liable for any death, damage or injury that results from another person obtaining the gun, in the four years following the violation. Similar criminal and civil liability would apply when a gun is sold, given as a gift, loaned, or otherwise “transferred” to another person without first being locked or secured, unless one of the exceptions applies. Other parts of the initiative restrict the access to and use of guns by minors, and impose a reporting requirement for lost and stolen guns (with criminal and strict liability penalties for violations in both cases), and grant the state health authority the power to set standards for acceptable trigger locks, cable locks, and gun safes.   

Under Oregon law, once a petition to initiate new legislation is filed and found to comply with the initial legal requirements, the state attorney general must prepare a four-part ballot title. This consists of a caption, a “simple and understandable statement” of up to 25 words to describe the result if the initiative is approved by the voters, an analogous statement of the result if the measure is rejected, and last, a “concise and impartial” summary describing, generally, the objective of the initiative.

Before this document is finalized, though, the general public has a limited period in which to provide written comments. Otherwise, citizens who continue to have concerns regarding the ballot titles accuracy, scope or impartiality may apply to have a court review the proposed ballot title to ensure it is compliant and not misleading.          

The NRA filed extensive written comments on the draft ballot title for Initiative Petition 40 (see page 85 of the comments link, here). Following the public comment period, the attorney general certified a new and modified ballot title. Unfortunately, this certified ballot title gave rise to fresh concerns, which could only be addressed by court review. Accordingly, the NRA (through NRA Oregon State Director Keely Hopkins) and others initiated legal proceedings, asking the court to evaluate the wording.     

On March 5, the Supreme Court of Oregon issued its decision, ruling that the ballot title failed to comply with the statutory requirements.

First, the caption was inaccurate and under inclusive. Although the initiative itself clearly applied to owners, possessors and transferors of guns, the caption referred exclusively to “owners.” “As written, the caption does not accurately reflect the scope of IP 40. It could cause potential petition signers and voters to incorrectly conclude that, if they do not own a firearm, IP 40 will not affect them.” The caption also failed to refer to the unusual “strict liability” provisions. “To adequately alert potential petition signers and voters to that substantial change in the law, the caption must identify the heightened liability that IP 40 would impose.”

Other problems were found with the “yes result” statement (describing the results of a “yes” vote). This, like the caption, improperly referred only to “owners.” It also incorrectly implied that, under the initiative, firearms had to be secured only when “stored or transferred.” Voters and petition signers, though, were unlikely to interpret “stored” to include all of the “other common circumstances” in which firearms would have to be secured under the initiative.  

With this decision, the certified ballot title goes back to the states attorney general. “Now its up to the attorney general to correct those issues to ensure Oregons voters truly understand the unreasonable restrictions they are faced with accepting,” noted Ms. Hopkins.

Significantly, these kinds of initiative measures are often proposed after duly elected legislators decide that the proposals are unworkable or unnecessary or otherwise lack merit. Earlier this year, Oregons legislators again rejected attempts to enact a firearm storage bill, HB 4005A, that essentially replicated the provisions of Initiative Petition 40.   

The NRAs efforts now focus on three new, overlapping “gun safety” initiative petitions underway in Oregon: Initiative Petition 60 (ban on “large capacity” magazines, and increased restrictions, including age limits, wait periods, and transfer requirements on semiautomatic firearms defined to be “semiautomatic assault firearms”), Initiative Petition 61 (restrictions on the sale, purchase, and transfer of semiautomatic guns defined to be “semiautomatic assault firearms”), and Initiative Petition 62 (ban on “large capacity” magazines). 

A legal challenge to the ballot language of Initiative Petition 60 was filed in February, claiming that the wording is “deceptive and fails to adequately convey to voters the sweeping changes” that are proposed by the initiative. Court challenges to the ballot titles for Initiative Petitions 61 and 62 have since been filed, as well.

Your NRA will keep you updated on future developments.

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