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Oregon Individual Gun Access Prevention by Court Order Referendum (2018)
| Oregon Individual Gun Access Prevention by Court Order Referendum | |
|---|---|
 | |
| Election date November 6, 2018 | |
| Topic Firearms | |
| Status Not on the ballot | |
| Type Referendum | Origin Citizens |
The Oregon Individual Gun Access Prevention by Court Order Referendum was not on the ballot in Oregon as a veto referendum on November 6, 2018.
The measure would have repealed Senate Bill 719 (SB 719), which authorized courts to issue extreme risk protection orders (ERPOs) to prevent a person from possessing or accessing firearms.
SB 719 enabled police, family, and household members to petition a court for an ERPO on a person. Under SB 719, courts need to conclude that a person is at risk of suicide or causing physical injury to another person in the near future to issue an ERPO. An ERPO requires an individual to surrender all firearms and other weapons capable of causing death or serious injury within 24 hours. The bill requires that ERPOs last one year. SB 719 was designed to allow persons under order to request a hearing within 30 days to argue that the ERPO be terminated.[1]
A "yes" vote on the referendum would have been to uphold SB 719, while a "no" vote would have been to overturn SB 719.
Text of measure
Full text
The referendum was aimed at repealing Senate Bill 719. The bill added the following underlined text:[1]
Enrolled Senate Bill 719 SECTION 1. As used in sections 1 to 8 of this 2017 Act: (1) “Deadly weapon” means:
(2) “Family or household member” means a spouse, intimate partner, mother, father, child or sibling of the respondent, or any person living within the same household as the respondent. (3) “Gun dealer” has the meaning given that term in ORS 166.412. (4) “Law enforcement agency” means an agency or department of the State of Oregon or of a political subdivision of the State of Oregon whose principal function is the apprehension of criminal offenders. (5) “Law enforcement officer” means a member of the Oregon State Police, a sheriff, a municipal police officer or an authorized tribal police officer as defined in ORS 181A.680. (6) “Petitioner” means a person who petitions for an order under sections 1 to 8 of this 2017 Act. (7) “Respondent” means a person against whom an order is filed under sections 1 to 8 of this 2017 Act. SECTION 2. (1) A law enforcement officer or a family or household member of a person may file a petition requesting that the court issue an extreme risk protection order enjoining the person from having in the person’s custody or control, owning, purchasing, possessing or receiving, or attempting to purchase or receive, a deadly weapon. (2) An extreme risk protection order petition shall be heard by the court and issued or denied on the same day the petition is submitted to the court or on the judicial business day immediately following the day the petition is filed. (3) The petition for an extreme risk protection order must be supported by a written affidavit signed by the petitioner under oath, or an oral statement taken under oath by the petitioner or any other witness the petitioner may produce. (4) In determining whether to issue an extreme risk protection order, the court shall consider the following:
(5) (a) The petitioner has the burden of proof at the ex parte hearing.
(6) (a) The court shall issue an extreme risk protection order if the court finds by clear and convincing evidence, based on the petition and supporting documentation and after considering a statement by the respondent, if provided, that the respondent presents a risk in the near future, including an imminent risk, of suicide or of causing physical injury to another person. The court may not include in the findings any mental health diagnosis or any connection between the risk presented by the respondent and mental illness.
(7) An extreme risk protection order issued under this section must include:
To the subject of this protection order: An extreme risk protection order has been issued by the court and is now in effect. You are required to surrender all deadly weapons in your custody, control or possession. You may not have in your custody or control, purchase, possess, receive, or attempt to purchase or receive, deadly weapons while this order is in effect. You must, within 24 hours, surrender all deadly weapons in your custody, control or possession to (insert name of local law enforcement agency), a gun dealer or a third party who may lawfully possess the deadly weapons. You must, within 24 hours, surrender to (insert name of local law enforcement agency) any concealed handgun license issued to you. You may request a hearing to contest this order. If you do not request a hearing, the extreme risk protection order against you will be in effect for one year unless terminated by the court. You have the right to request one hearing to terminate this order during the 12 months that this order is in effect starting from the date of this order. You may seek the advice of an attorney as to any matter connected with this order. (8) (a) The respondent shall be personally served with both a copy of the extreme risk protection order and a hearing request form described in subsection (9) of this section.
(9) (a) Within 30 days after an extreme risk protection order is served on the respondent under this section, the respondent may request a court hearing using a form prescribed by the State Court Administrator.
SECTION 3. (1) At a hearing on an extreme risk protection order requested by the respondent under section 2 (9) of this 2017 Act, the court may:
(2) (a) The Oregon Evidence Code shall apply in a hearing under this section.
(3) (a) At the hearing, the court shall determine:
(4) An extreme risk protection order continued under this section must include:
To the subject of this protection order: This order is valid until the date and time noted above. If you have not done so already, you are required to surrender all deadly weapons in your custody. You must immediately surrender all deadly weapons in your custody, control or possession to (insert name of local law enforcement agency), a gun dealer or a third party who may lawfully possess the deadly weapons. You must immediately surrender to (insert name of local law enforcement agency) any concealed handgun license issued to you. You may not have in your custody or control, purchase, possess, receive, or attempt to purchase or receive, a deadly weapon while this order is in effect. You have the right to request one hearing to terminate this order during the 12 months that this order is in effect starting from the date of this order. You may seek the advice of an attorney as to any matter connected with this order. (5) When the court continues an extreme risk protection order under this section, the court shall inform the respondent that the respondent is entitled to request termination of the order in the manner described in section 4 of this 2017 Act. The court shall provide the respondent with a form with which to request a termination hearing (6) The respondent need not be served if an order of the court indicates that the respondent appeared in person before the court. (7) If the court terminates an extreme risk protection order after a hearing under this section:
SECTION 4. (1) The petitioner or the respondent of an extreme risk protection order issued or continued under section 2 or 3 of this 2017 Act may each submit a written request once during the 12-month effective period of the order, and once during any 12-month effective period of an order renewed under section 5 of this 2017 Act, for a hearing to terminate the order. A hearing under this section is in addition to any hearing requested under section 2 of this 2017 Act. (2) Upon receipt of a request described in subsection (1) of this section, the court shall schedule a termination hearing and provide notice of the hearing to both parties at least five days before the hearing. (3) (a) The person filing the termination request has the burden of proving, by clear and convincing evidence, that the respondent no longer presents a risk in the near future, including an imminent risk, of suicide or of causing physical injury to another person.
(4) (a) If the court finds that the petitioner has met the burden of proof as described in subsection (3) of this section, the court shall terminate the extreme risk protection order.
(5) When an extreme risk protection order is terminated by order of the court, the clerk of the court shall immediately deliver a copy of the termination order to the county sheriff with whom the original order was filed. Upon receipt of the termination order, the county sheriff shall promptly remove the original order from the Law Enforcement Data System and shall request that the order be removed from the databases of the National Crime Information Center of the United States Department of Justice. SECTION 5. (1) A law enforcement officer or a family or household member of a respondent, including but not limited to the law enforcement officer or family or household member who petitioned the court for the original extreme risk protection order issued under section 2 of this 2017 Act, may request a renewal of the order within 90 days before the expiration date of the order by filing a written request with the court. (2) Upon receipt of the request for renewal described in subsection (1) of this section, the court shall schedule a hearing and provide notice of the hearing to both parties at least 14 days before the hearing. (3) At a hearing to determine whether to renew an extreme risk protection order under this section, the court may:
(4) The person requesting the renewal of the extreme risk protection order has the burden of proving, by clear and convincing evidence, that the respondent continues to present a risk in the near future, including an imminent risk, of suicide or of causing physical injury to another person. (5) (a) The Oregon Evidence Code shall apply in a hearing under this section.
(6) (a) If the court finds that the petitioner has met the burden of proof, the court may renew the extreme risk protection order for a duration of up to one year.
(7) An extreme risk protection order renewed under this section must include:
To the subject of this protection order: This renewed order is valid until the date and time noted above. If you have not done so already, you are required to surrender all deadly weapons in your custody. You must immediately surrender all deadly weapons in your custody, control or possession to (insert name of local law enforcement agency), a gun dealer or a third party who may lawfully possess the deadly weapons. You must immediately surrender to (insert name of local law enforcement agency) any concealed handgun license issued to you. You may not have in your custody or control, purchase, possess, receive, or attempt to purchase or receive, a deadly weapon while this order is in effect. You have the right to request one hearing to terminate this renewed order every 12 months that this order is in effect, starting from the date of this order. You may seek the advice of an attorney as to any matter connected with this order. (8) When the court renews an extreme risk protection order, the court shall inform the respondent that the respondent is entitled to request termination of the renewed order in the manner described in section 4 of this 2017 Act. The court shall provide the respondent with a form with which to request a termination hearing. (9) (a) Service of a renewed extreme risk protective order shall be made by personal delivery of a copy of the order to the respondent. The respondent need not be served if an order of the court indicates that the respondent appeared in person before the court.
(10) If the court declines to renew an extreme risk protection order, the court shall state with particularity the reasons for the denial on the record. (11) A renewed extreme risk protection order may be further renewed as described in this section. SECTION 6. (1) Upon issuance of an extreme risk protection order under section 2 of this 2017 Act, the court shall further order that the respondent:
(2) Upon continuance of an extreme risk protection order after a hearing under section 3 of this 2017 Act, or renewal of an extreme risk protection order under section 5 of this 2017 Act, the court shall further order that the respondent:
(3) (a) A law enforcement officer serving an extreme risk protection order issued under section 2 of this 2017 Act shall request that the respondent immediately surrender to the officer all deadly weapons in the respondent’s custody, control or possession and any concealed handgun license issued to the respondent under ORS 166.291 and 166.292. The law enforcement officer shall take possession of all deadly weapons appearing to be in the custody, control or possession of the respondent that are surrendered by the respondent. If the respondent indicates an intention to surrender the deadly weapons to a gun dealer or a third party, the law enforcement officer shall request that the respondent identify the gun dealer or third party.
(4) At the time of the surrender of any deadly weapons or concealed handgun licenses under subsection (3) of this section, the law enforcement officer taking possession shall issue a receipt identifying all surrendered items and provide a copy of the receipt to the respondent. Within 72 hours after service of the order, the law enforcement officer serving the order shall file the original receipt with the court and shall ensure that the law enforcement agency employing the law enforcement officer retains a copy of the receipt. (5) If a third party claims lawful ownership or right of possession of a deadly weapon surrendered pursuant to this section, the law enforcement agency may return the deadly weapon to the third party if the third party provides proof of lawful ownership or right of possession of the deadly weapon, in a sworn affidavit, affirms that:
SECTION 7. (1) If an extreme risk protection order is terminated or expires without renewal, a law enforcement agency holding any deadly weapon or concealed handgun license that has been surrendered pursuant to the order shall return the surrendered items as requested by the respondent of the order only after:
(2) The owner of a deadly weapon, if the deadly weapon is a firearm, in the custody of a law enforcement agency pursuant to section 6 of this 2017 Act who does not wish to have the firearm returned is entitled to sell or transfer title of any firearm to a licensed gun dealer as defined in ORS 166.412, provided that the firearm is lawful to own or possess and the person has a legal right to transfer title of the firearm. (3) A deadly weapon surrendered by a person pursuant to section 6 of this 2017 Act that remains unclaimed by the owner shall be disposed of in accordance with the law enforcement agency’s policies and procedures for the disposal of deadly weapons in the agency’s custody. SECTION 8. (1) A person commits a Class A misdemeanor if:
(2) A person convicted under subsection (1) of this section shall be prohibited from having in the person’s custody or control, owning, purchasing, possessing or receiving, or attempting to purchase or receive, any firearms for a five-year period beginning when the extreme risk protection order expires or is terminated, or the judgment of conviction is entered, whichever occurs later. (3) A person who files a petition for any extreme risk protection order under sections 1 to 8 of this 2017 Act with the intent to harass the respondent, or knowing that the information in the petition is false, is guilty of a Class A misdemeanor. SECTION 9. ORS 419B.851 is amended to read: 419B.851. (1) Except as otherwise provided in ORS 419B.800 to 419B.929, every order, every petition and answer subsequent to the original petition, every written motion other than one that may be heard ex parte and every written request and similar paper must be served upon each of the parties. (2) (a) Whenever under ORS 419B.800 to 419B.929 service is required or permitted to be made upon a party, and that party is represented by an attorney, the service must be made upon the attorney unless otherwise ordered by the court. Service upon the attorney or upon a party must be made by:
(3) When a petition is filed under subsection (1) of this section alleging that a child who is a foreign national is within the jurisdiction of the court, or when a motion is filed requesting implementation of a plan other than return of a ward to the ward’s parent, a copy of the petition or motion shall be served on the consulate for the child or ward’s country. (4) (a) All papers required to be served upon a party under subsection (1) of this section must be filed with the court within a reasonable time after service.
(5) The filing of any papers with the court must be made by filing them with the clerk of the court or the person exercising the duties of that office. The clerk or the person exercising the duties of that office shall indorse the time of day, day of the month, month and year upon the paper. The clerk or person exercising the duties of that office is not required to receive any paper for filing unless:
(6) Whenever under ORS 419B.800 to 419B.929 service is required or permitted to be made upon a party and that party is represented by an attorney, the service may be made upon the attorney by means of a facsimile if the attorney maintains such a device at the attorney’s office and the device is operating at the time service is made. (7) Whenever under ORS 419B.800 to 419B.929 service is required or permitted to be made upon a party, unless the party or the party’s attorney is exempted from service by electronic mail or electronic service by an order of the court, the service may be made by one of the following means:
SECTION 10. ORS 419B.812 is amended to read: 419B.812. (1) As used in this section and ORS 419B.815, 419B.819 and 419B.824, a “true copy” of a summons or petition means an exact and complete copy of the original summons or petition with a certificate upon the copy signed by an attorney of record or a party that indicates that the copy is exact and complete. (2) A summons under ORS 419B.815 or 419B.819 must be titled “In the matter of , a child” and must contain the name of the person to be served and the address at which the summons and petition may be served. (3) The summons must be issued no later than 30 days after the filing of a petition alleging jurisdiction under ORS 419B.100, a petition to establish a permanent guardianship under ORS 419B.365 or a petition seeking termination of parental rights under ORS 419B.500, 419B.502, 419B.504, 419B.506 or 419B.508. (4) The petitioner, the petitioner’s attorney, the juvenile department, the district attorney, the Attorney General or the Department of Human Services may issue a summons. (5) The summons must be signed by the:
(6) The summons must be served with a true copy of the petition. (7) The summons and petition may be served by any competent person 18 years of age or older who is a resident of the state where service is made or of this state. (8) The summons and petition may be transmitted by telegraph, (9) The court shall fix the date and time for the hearing on a petition at a reasonable time after service or, if service is by publication, final publication of the summons. The time may not be less than 24 hours after service or, if service is by publication, final publication in a proceeding to establish jurisdiction under ORS 419B.100 and may not be less than 10 days after service or, if service is by publication, final publication in a proceeding to establish permanent guardianship or terminate parental rights. SECTION 11. ORS 419B.848 is amended to read: 419B.848. (1) All process authorized to be issued by any court or officer of the court runs in the name of the State of Oregon and must be signed by the officer issuing the process, and if the process is issued by a clerk of the court, the seal of office of the clerk must be affixed to the process. Summonses and subpoenas are not process. (2) A civil process may be served or executed on Sunday or any legal holiday. No limitation or prohibition stated in ORS 1.060 applies to the service or execution of a civil process on a Sunday or legal holiday. (3) (a) (b) The facsimile or telegraphic copy, as defined in ORS 165.840, of the order or paper transmitted may be served or executed by the officer or person to whom it is sent for that purpose and returned by the officer or person if any return is required in the same manner and with the same force and effect in all respects as if the copy were the original. The officer or person serving or executing the order or paper has the same authority and is subject to the same liabilities as if the copy were the original. The original, if an order, must be filed in the court from which it was issued and a certified copy of the order must be preserved in the office from which it was sent. The operator may use either the original or certified copy to transmit the order or paper. (4) Proof of service or execution of process must be made as provided in ORS 419B.851 or 419B.833. SECTION 12. The amendments to ORS 419B.812, 419B.848 and 419B.851 by sections 9 to 11 of this 2017 Act apply to service of process made in court proceedings on or after the effective date of this 2017 Act. |
Background
SB 719 in the state Legislature
Senate Bill 719 (SB 719) was introduced into the Oregon State Legislature on February 7, 2017. SB 719 was designed to authorize courts to issue extreme risk protection orders to prevent a person from possessing or accessing firearms. During committee hearings on SB 719, representatives of Oregon Physicians for Social Responsibility (OPSR) and Ceasefire Oregon filed statements supporting the bill and representatives of National Rifle Association (NRA) and the Firearms Policy Coalition filed statements opposing the bill.[2]
The Oregon State Senate approved SB 719 in a vote of 17 to 11, with two members excused, on May 1, 2017. The vote was mostly along partisan lines. Sen. Brian Boquist (R-12) joined Senate Democrats in passing the bill. Sen. Boquist drafted SB 719 after his stepson, veteran Sethan Sprague, used a gun to commit suicide in 2016.[3] Sen. Betsy Johnson (D-16) joined Senate Republicans in voting against the bill.[2]
| Breakdown of Senate votes on SB 719 | ||||
|---|---|---|---|---|
| Party Affiliation | Yes | No | Abstain | Total |
| Democrat | 16 | 1 | 0 | 17 |
| Republican | 1 | 10 | 2 | 13 |
| Total | 17 | 11 | 2 | 30 |
On July 6, 2017, the Oregon House of Representatives voted 31 to 28, with one member excused, to pass SB 719. House Republicans were united against the statute, with the entire caucus voting to reject SB 719. Three Democrats also joined House Republicans in voting against the bill. The remaining 31 Democrats voted to approve the bill.[2] Rep. Jennifer Williamson (D-36), the chamber's majority leader, said, "I believe this legislation strikes an important balance between ensuring individuals are able to maintain their rights under the Constitution and keep those who seek to harm themselves or others from obtaining the thing that will allow them to do that easily." Rep. Bill Post (R-25), who was one of the individuals to file the referendum against SB 719, stated, "SB 719 sets up a constitutionally tenuous process for stripping Oregonians of their rights and puts the burden of enforcement on the backs of our already strained law enforcement community. If we want to reduce violence in our communities, we need to get serious about investing in mental health programs and ensuring that Oregonians have access to the care they desperately need."[4]
| Breakdown of House votes on SB 719 | ||||
|---|---|---|---|---|
| Party Affiliation | Yes | No | Abstain | Total |
| Democrat | 31 | 3 | 1 | 35 |
| Republican | 0 | 25 | 0 | 25 |
| Total | 31 | 28 | 1 | 60 |
Gov. Kate Brown (D) signed the bill on August 16, 2017. SB 719 was slated to go into effect on January 1, 2018.[2]
Washington Initiative 1491
Voters in neighboring Washington passed Initiative 1491, an initiative similar to SB 719, in 2016. The vote was 69 percent to 31 percent. Like SB 719, Initiative 1491 authorized courts to issue extreme risk protection orders, which prevent a person from possessing or accessing firearms. Businessman Nicolas Hanauer, former Microsoft CEO Steve Ballmer, and Everytown for Gun Safety provided the support campaign with funds. Opponents did not organize a political action committee to raise funds to fight the initiative. The National Rifle Association (NRA) opposed the initiative. The ACLU issued a statement saying the organization could not support the initiative, expressing "concerns that the initiative has inadequate due process procedures."[5]
Path to the ballot
In Oregon, a veto referendum is a citizen-initiated measure addressing a law that the state Legislature and governor approved. Certifying a veto referendum for the ballot requires a number of signatures equivalent to 4 percent of the votes cast in the most recent gubernatorial election. As the gubernatorial special election held in 2016 did not affect signature requirements, the number required reflects the votes cast in 2014.
Supporters of a veto referendum needed to collect 58,789 valid signatures to get their measure on the ballot for an election in 2018. Signatures were due 90 days after the 2017 regular legislative adjourned on July 7, 2017, which was October 5, 2017. Certification of signatures for the veto referendum would have put the bill’s implementation on hold until after the election.
On August 22, 2017, Teri Grier (R), Rep. Bill Post (R-25), and Rep. Mike Nearman (R-23) filed a petition for the veto referendum with the secretary of state's office. The veto referendum was approved for signature gathering on August 24, 2017.[6]
On October 5, 2017, Rep. Mike Nearman said the campaign collected around 25,000 signatures, less than half of the required 58,789 valid signatures. Rep. Nearman said, “It wasn’t for lack of support. We simply did not have enough time. I blame Governor Kate Brown for that.” His press release stated, “According to Article IV of the Oregon Constitution, petitioners have 90 days from the end of the Legislative Session in which the bill was passed, which was July 7, 2017. However, they cannot begin to gather signatures until the Governor signs the bill, which was not until August 15, 2017.”[7][8]
See also
External links
Footnotes
- ↑ 1.0 1.1 Oregon Secretary of State, "SB 719 Referendum," accessed August 23, 2017
- ↑ 2.0 2.1 2.2 2.3 Oregon Legislature, "SB 719 History," accessed August 23, 2017
- ↑ The Oregonian, "Lawmakers pass bill to take guns away from those deemed at risk of suicide, shooting sprees," July 6, 2017
- ↑ KTVZ, "Oregon House narrowly OKs gun legislation," July 7, 2017
- ↑ Know I-1491, "ACLU WA Position," accessed September 25, 2016
- ↑ Oregon Secretary of State, "Referendum 302 Overview," accessed August 23, 2017
- ↑ Twitter, "Bill Post," accessed October 5, 2017
- ↑ The Register-Guard, "Effort to repeal Oregon gun control bill fails; no word yet on health care tax rollback," October 5, 2017
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