A Harney County judge will decide by Jan. 3 whether to block part of Measure 114. The law in question would end a loophole that allows gun dealers to sell firearms when a background check hasn't cleared in three days. (Photo by Connor Radnovich/Oregon Capital Chronicle)

A Harney County Circuit judge will decide by Jan. 3 if Oregon will continue to have a loophole that allows purchasers to obtain firearms from dealers if their background checks aren’t finished within three days.

Measure 114, a firearms law Oregon voters passed in November, would end that loophole and not allow purchasers to obtain firearms from a dealer until the background check sent to law enforcement clears, regardless of how long it takes. For now, the measure is on hold and temporarily blocked in court in its entirety because of a pending lawsuit that challenges its constitutionality.  

Judge Robert Raschio said Friday he’ll make a decision by 5 p.m. Jan. 3 after hearing arguments from attorneys in the case. 

Measure 114 is intended to prevent mass shootings like the one with nine people killed in a Charleston, S.C., church in 2015. In that case, the shooter had a criminal record that would have disqualified him, but his background check was delayed, allowing the purchase. 

Since then, closing the so-called “Charleston loophole” is on the frontlines of firearm policy debates in statehouses and at the polls.

Other parts of Measure 114 are on hold as the case proceeds. Those include a ban on the sales of high-capacity magazines with more than 10 rounds and a new permit system that requires applicants to go through a training class with live fire exercises. Raschio’s upcoming decision doesn’t apply to those parts of the measure. 

The Harney County lawsuit was filed against the state by Gun Owners of America, based in Virginia, and a related organization, the Gun Owners Foundation. Other plaintiffs include Joseph Arnold and Cliff Asmussen, two Harney County firearms owners. Gun Owners of America says on its website it has more than 2 million members and lobbies for firearms owners to exercise the “right to keep and bear arms without compromise.”

The requirements of Measure 114 have attracted widespread criticism from firearms owners and dealers and several rural sheriffs who say it’s unenforceable and will eat into limited law enforcement resources. 

Tony Aiello Jr., an attorney for the plaintiffs, argued that the state’s system without the new measure properly gives gun dealers, not the state, discretion to provide firearms to customers if a background check hasn’t been finished within three days. 

“Oregonians have no guarantee whatsoever that their background checks will be timely,” Aiello said of the law’s elimination of that ability.

He also pushed back against the characterization that it’s a “loophole,” saying the existing law is intended to protect firearms dealers and avoid giving unfettered discretion to government officials handling background checks.

Harry Wilson, a private attorney representing the state, argued the measure’s provision that eliminates the three-day loophole should take effect as legal challenges to other parts of the law proceed. He said the court has the ability to target and block specific parts of the measure that may be unconstitutional without halting the entirety of the new law.

A federal court is handling a separate suit against Measure 114. In a ruling on that case earlier this month, U.S. District Judge Karin Immergut said Oregon can postpone the permit requirements after the state asked for a delay so it can set up a system. But Immergut ruled that other parts of the measure, including the ban on sales of high-capacity magazines with more than 10 rounds, can go into effect as scheduled on Dec. 8.

The Harney County judge’s order took precedence over the federal order, though. The Oregon Supreme Court declined to intervene at the request of Attorney General Ellen Rosenblum and the Oregon Department of Justice.

For now, state officials have asked the federal court to give the state until March 7 to prepare a permit system. The Harney County judge has said he’ll have a hearing from both sides when the state’s permit system is ready. 


Oregon Capital Chronicle

Oregon Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Oregon Capital Chronicle maintains editorial independence. Contact Editor Lynne Terry for questions: info@oregoncapitalchronicle.com. Follow Oregon Capital Chronicle on Facebook and Twitter.

Ben Botkin, Oregon Capital Chronicle

Ben Botkin covers justice, health and social services issues for the Oregon Capital Chronicle. He has been a reporter since 2003, when he drove from his Midwest locale to Idaho for his first journalism job. He has written extensively about politics and state agencies in Idaho, Nevada and Oregon. Most recently, he covered health care and the Oregon Legislature for The Lund Report.