Agendas and Minutes

City Council (View All)

Study Session

Tuesday, February 18, 2014

February 18, 2014
Council Chambers, 1175 East Main Street

Mayor Stromberg called the meeting to order at 9:29 p.m. in the Civic Center Council Chambers.
Councilor Voisin, Morris, Lemhouse, Slattery, Rosenthal, and Marsh were present.  
1.     Review, discussion and Council direction to staff regarding an ordinance or ordinances relating to the open carry of weapons and minorís access to weapons
City Attorney Dave Lohman explained that the two proposed ordinances discussed at the February 3, 2014 Study Session originated from a citizens group.  One proposed ordinance would ban under certain circumstances open carry of loaded firearms as well as open carry of unloaded firearms with attachable magazine and clip, and would allow police inspection of an open carry weapon to determine whether it is loaded.  The other ordinance would make it illegal to give minors access to firearms without appropriate permission.  At February 3, 2014 Study Session, Council requested that staff bring back a draft ordinance that had a good chance of withstanding judicial scrutiny and requested more information from the eleven cities in Oregon that had similar ordinances. 
Police Chief Terry Holderness contacted the eleven cities and found some had modified their ordinances to be consistent with the City of Portland.  Not one city had attempted to measure the impact on community, reviewed crime statistics, or did an analysis of impact.  The Police Department planned to conduct an active analysis on their own but found that data for ordinances established in the 1970s was no longer available or the ordinances were too recent to have comparative data.  The City of Beaverton passed similar ordinances in 2000 and their data did not reveal anything.   
Chief Holderness addressed probable cause as it related to determining whether a gun was loaded.  The Oregon Supreme Court in 1991 made a decision on a case in Portland that stated the only real reason someone would have to carry a weapon was to use it and it was reasonable to assume barring other information that if someone is carrying a gun it was loaded.  The fact someone was carrying gun and an officer could not determine whether the gun was loaded established probable cause in Oregon law.  Mr. Lohman added the case was not overturned and the Supreme Court denied review.  However subsequent cases that referred to it made it clear the issue was and still is whether an officer needed reasonable suspicion a crime was committed before the police can make a stop.  Once the police made the stop, the stop and frisk statute kicked in and the police had the ability to inspect at that time.  The police needed to establish reasonable suspicion that a crime was committed before they could inspect the weapon.
Chief Holderness explained the police had the right to have a consensual encounter with anyone and that individual could choose not to respond.  None of the eleven cities had ever cited or arrested someone during a failure to inspect a weapon. 
Mr. Lohman clarified a city that continually charged people then subsequently dropped the charges prior to prosecution would not run the risk of false arrest but could face an equal protection claim.
He went on to explain the staff-proposed ordinance did not include banning ammunition, inspection by the police and child access in order to have an ordinance that had the best chance to withstand litigation.  Banning loaded open carry had a high likelihood of withstanding judicial scrutiny due to a specific exemption in the state preemption law that stated local governments could enact a provision to ban loaded open carry under certain circumstances.  The other two elements, banning ammunition, and inspection by the police, could be subject to challenge in court.  A specific preemption in the state statute stated local governments could not enact any ordinances concerning ammunition.  Police inspection could end up in litigation due to the Fourth Amendment.  The only element highly likely to withstand judicial scrutiny was the ordinance he presented that just concerned open carry of loaded weapons.  In addition, it was unknown whether the case challenged in Portland would be appealed to federal court.
The ordinance preventing minorsí access to firearms might not withstand scrutiny and could invite litigation.  One reason was the preemption statute contained a provision stating local government could not enact provisions regarding storage of firearms.
He went on to explain his document Realistic Options for Council Action on Firearms Restrictions provided Council with 13 options that involved ordinances, resolutions, referrals, and taking no action.  If Council wanted to add something to the ballot for May 20, 2014, they would need to act at the March 4, 2014 meeting.
City Administrator Dave Kanner clarified insurance would not cover lawsuit fees related to a policy decision by the City Council.  Liability insurance provided coverage for alleged negligence on the part of the City that resulted in tortuous harm to a litigant.
City Recorder Barbara Christensen would provide Council with the initiative process for citizens.
Mr. Kanner noted slight consensus from Council in favor of adding Mr. Lohmanís draft ordinance and making the options listed in the Realistic Options for Council Action on Firearms Restrictions available for public testimony during the March 18, 2014 Council meeting.  Staff would also post the options on Open City Hall.  Council agreed.  Council discussed their concern adding the original ordinances from the citizens group to the agenda since the ordinances as written could result in taxpayers paying high litigation fees.  A Councilor could make a motion to add an ordinance or have the original ordinances considered without it being on the agenda. 
Meeting adjourned 10:30 p.m.
Respectfully submitted,                                
Dana Smith
Assistant to the City Recorder

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