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Study Session

Minutes
Monday, February 03, 2014

MINUTES FOR THE STUDY SESSION
ASHLAND CITY COUNCIL
Monday, February 3, 2014
Council Chambers, 1175 East Main Street

 
Mayor Stromberg called the meeting to order at 5:30 p.m. in the Civic Center Council Chambers.
 
Councilor Voisin, Morris, Lemhouse, Slattery, Rosenthal, and Marsh were present.  
 
Mayor Stromberg moved agenda item #3. Discussion of an ordinance prohibiting the unlawful carrying of loaded firearms in public places and an ordinance to prohibit endangering a child by allowing access to a firearm to agenda item #2 with Council consent.
 
1.         Look Ahead review
City Administrator Dave Kanner reviewed items on the Look Ahead.
 
2.     Discussion of an ordinance prohibiting the unlawful carrying of loaded firearms in public places and an ordinance to prohibit endangering a child by allowing access to a firearm (Request of Councilor Voisin)
City Attorney Dave Lohman clarified he would not address policy issues but provide legal interpretation of the two proposed ordinances regarding language.  In addition, he would outline legal and fiscal consequences if the ordinances passed.  His presentation began with two issues and included legal language:

  • Regulating loaded firearms in public places
  • Proscribing unpermitted access to firearms by minors
In Oregon, there were three limitations to take into consideration regarding gun control legislation, the Second Amendment from the U.S. Constitution, Article I, Section 27 of the Oregon Constitution, and ORS 166.170 State Preemption.
 
  • SECOND AMENDMENT U.S. CONSTITUTION
  • SECOND AMENDMENT CASE LAW
  • ARTICLE I, SECTION 27 OREGON CONSTITUTION - This article was more protective than the Second Amendment and clearly referred to the right of self-defense.  The second amendment referred to militia with many interpreting it to include the right of self-defense.  Per the recent case in Portland, an ordinance that did regulate loaded open carry could be valid under certain circumstances.
  • ARTICLE I, SECTION 27 CASE LAW
  • ORS 166.170 STATE PREEMPTION
  • ORS 166.173 AUTHORITY OF CITY OR COUNTY TO REGULATE POSSESSION OF LOADED FIREARMS IN PUBLIC PLACES
  • ORS 166.173 CASE LAW - The Oregon court interpreted public places to include the interior of motor vehicles in public places.
  • OPEN CARRY, LOADED FIREARMS SECTION 1B: - QUESTION:  Is proposed provision sufficiently like Portland’s to likewise pass federal and state constitutional scrutiny? - The proposed ordinance was not the same as the City of Portland regarding loaded weapons in a public place.  Oregon courts upheld that ordinance, Mr. Lohman was not sure it would uphold the version before Council.
  • OPEN CARRY, LOADED FIREARMS SECTION 1C - QUESTION:  Does authority to regulate “loaded firearms” include bullets in unattached clip and magazine as well as chamber and cylinder? The ordinance would forbid carrying an unloaded weapon and a clip or magazine that went with the weapon.  This posed the question of how the statutory preemption would apply to that circumstance.  The term “reckless” was well defined and referred to the state of mind where an individual knew they were doing something contrary to an ordinance and did it anyway.  In the case that challenged Portland, the word “recklessly” was critical because it required a state of mind to prove the individual was violent.  The law based the term “reckless” on the reasonable person standard.
  • OPEN CARRY, LOADED FIREARMS SECTION 1D
  • OPEN CARRY, LOADED FIREARMS SECTION 1E - QUESTION:  Is inspection absent “reasonable suspicion” inherent in authority to ban loaded open carry or is it a 4th Amendment violation? Mr. Lohman addressed police officers checking an individual for a license to carry a concealed weapon when there was no indication they were not carrying a license.  One side would argue there was an inherent right to check in the non-preempted ability to ban the open carry of loaded weapons.  The other side would refer to the Fourth Amendment that an officer could not stop and inspect someone in the absence of reasonable suspicion that a crime was about to be committed.
 
There was a possible argument that carrying a weapon, even an unloaded weapon, involved a risk that a crime might be committed.  Alternately, per state law it was lawful to carry a firearm.  There was a strong chance that someone arrested, tried, and convicted based on inspection would challenge it in court.
  • CHILD ACCESS TO GUNS - QUESTION:  Is preventing unpermitted child access to guns a preempted gun storage requirement or just an allowable child supervision requirement? State statute ORS 163.195 Reckless Endangerment of a Person, would go towards a provision like Child Access to Guns but was not as extensive.  The proposed ordinance would make it easier to convict someone than the statute of reckless endangerment.
 
From the perspective of unintended litigation costs, if the City enforced either ordinance, it would most likely encounter a challenge and be appealed.  The ordinances the City of Portland approved in general had the four elements Council was discussing.  In the three years since enacted, the only challenge incurred was the open carry of a loaded weapon the court upheld.  The provisions concerning inspection and ammunition had not been enforced to date.  Additionally, the City of Portland’s child access ordinance had not been enforced or challenged yet, nor had the eleven cities with similar ordinances. 
 
Ashland had a municipal court and not a court of record.  A court of record recorded proceedings and could be challenged on appeal.  In municipal court, if someone were found guilty and wanted to challenge a guilty decision, he or she could bring it to circuit court and have it tried anew.  A municipal court decision was not binding in circuit court. 
 
If Mr. Lohman rewrote both ordinances, he would replicate the City of Portland’s since the ban of loaded open carry was upheld.  However, inspection and ammunition was an unknown.  He could write the ordinance to be less subject to challenge but doubted it could be written in a manner that would make it not subject to challenge.  Litigation costs to the City if challenged in circuit court could start at $150,000 and go from there depending if appeals went before the Oregon Supreme Court or the U.S. Supreme Court.
 
Police Chief Holderness addressed enforcement and explained the police could not stop someone without reasonable suspicion.  The Chief would need to talk to the City of Portland regarding how they defined reasonable suspicion in relation to the ordinances.  If an officer had a consensual encounter with an individual who refused to engage in discussion to establish probable cause or if someone was standing with a loaded rifle who would not respond, the officer could not take action.  He went to explain California’s state law regarding open carry and city ordinances prohibiting carrying loaded weapons within city limits.  The proposed ordinances before Council were more community values than practical aspects in Ashland.  In the past five years there were eleven crimes involving guns, two incidents where guns were fired during the course of a crime and nine instances where a gun was brandished but not drawn.  Additionally the police had not encountered a crime involving open carry. 
 
In regards to the child access ordinance, Chief Holderness would have to work the City Attorney on how it differed from current endangerment laws.  Mr. Lohman added Oregon did not have child endangerment acts but reckless endangerment of a person extended to children as well as another provision for neglect of a child under 10 years old that also might apply.  The proposed language would allow a lower threshold but would raise questions about the preemption statute.
 
Chief Holderness explained municipal court punished people through fines or jail time.  If an individual could not pay the fine, it might not have much impact and depended on the nature of the person violating the law and their interest in maintaining a good line of credit.
 
Councilor Voisin explained the two ordinances would enhance public safety, protect children, and not take guns from law-abiding citizens.  Citizens brought the ordinances forward modeled on the language the City of Portland used.  The ordinances also applied to the Council goal of Public Safety.  The child access ordinance would prohibit endangering a child by prohibiting unsupervised access to a firearm.  The ordinance regarding loaded firearms made the assumption that until it was proven that open carry of loaded weapons could possibly lead to a better, safer, and peaceful community, a ban on loaded open carry was in the best interest of public safety and the community.    She went on to read a letter from Newtown CT that spoke of the need to establish a balance respecting gun owner’s rights while still working to ensure the safety of the community as a whole. 
 
She noted there were statistics to back the ban on loaded open carry and the ordinances were precautionary.
 
Mr. Lohman explained Council had five options regarding the ordinances.  The first option was do nothing, the second, pass the ordinances as written.  The third option would have staff come back with language that might withstand judicial scrutiny the best and accomplish as much as possible in the draft ordinances.  The fourth option would refer the ordinances to the voters as a ballot measure.  The fifth option would refer an advisory ballot measure to the voters asking whether an ordinance along these lines was something citizens wanted.
 
Council majority supported option three with staff doing additional research to make the ordinances the most defensible and provide statistics indicating the success of similar ordinances.  The Police Chief would contact other cities regarding enforcement.  Staff would bring that information and draft ordinances to a regular meeting that would allow public input.  Staff would also include information on adding the ordinances or an advisory to a future ballot for the voters to decide.
 
3.     Discussion of granting a conservation easement on Imperatrice Property (Request of Councilor Lemhouse)
City Administrator Dave Kanner explained the four major cons to having a conservation easement:
  • It is very difficult to terminate the easement.  It is effectively permanent.
  • The easement may reduce future value and salability of the property.  Should the City wish to sell the property in the future, the easement, including all its restrictions and requirements remains in place.
  • Future uses of the property must be thought through, identified, and listed as authorized uses on the easement.
  • The City would be legally liable for uses of the property that are inconsistent with the terms and conditions of the easement while we own the property.

 
Standing Stone Brewery leased a portion of the Imperatrice property and could be included as an exception.  Mr. Kanner recommended granting trail easements initiated in 2005.  He clarified the conservation easement would not provide tax breaks for the City. Nor would it necessarily damage the value of the property.  The assessed value of the property was based on current allowable uses.  The land was zoned EFU (Exclusive Farm Use).  There were no irrigation rights above the ditch but the property could be used for grazing.  EFU allowed one house per 40 acres.  Potential damage to property value depended on future allowable uses. 
 
Council comments thought it should remain EFU.  Other comments noted one reason no action was taken previously was Council did not want to bind future Councils.
 
Mr. Kanner clarified the City did not manage the property other than a lease agreement with Standing Stone Brewery through the Public Works Department.  The City purchased the property to land spread sewage effluent and stopped due to opposition from neighbors.  The Parks and Recreation Department could possibly manage the property if trail easements were established.  The Southern Oregon Land Conservancy (SOLC) would manage the conservation easement.
 
Council wanted to ensure the lease with Standing Stone Brewery remained an allowable use.  Mr. Kanner clarified the lease was currently an allowed use in an EFU zone.
 
Councilor Voisin left the meeting at 7:00 p.m.
 
Council discussed adding the conservation easement to goal setting or forwarding it to the Conservation Commission to develop a list of allowable uses.  Three councilors supported adding the easement to goal setting and two favored forwarding it to the Conservation Commission.  Another suggestion was an initial discussion during goal setting then forwarding it to the Conservation Commission.
 
SOLC Board of Directors President Pat Acklin explained the SOLC did not make easements that violated county zoning and negotiated easements with the property owners.  The SOLC monitored properties once a year to ensure conservation values in the easement were met.  Additionally, the SOLC did not operate Parks and Recreation facilities.
 
Staff would start developing trail easements on the property. 
 
Meeting adjourned at 7:15 p.m.
 
 
Respectfully submitted,                                
Dana Smith
Assistant to the City Recorder
 
 

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