SENATE COMMITTEE ON JUDICIARY

 

 

February 26, 2003                                                                                               Hearing Room 343

8:00 A.M.                                                                                                                       Tapes 41-42

 

MEMBERS PRESENT:         Sen. Minnis, Chair

Sen. Burdick, Vice-Chair

Sen. Ferrioli

Sen. Ringo

Sen. Starr

Sen. Walker

 

STAFF PRESENT:                 Craig Prins,  Counsel

Nancy Massee,  Committee Assistant

 

MEASURE/ISSUES HEARD:          

                                                SB 49 Public Hearing

                                                SB 300 Public Hearing

                                                SB 303 Public Hearing

 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

 

 

 

 

Tape 41, A

 

 

 

 

 

004

Chair Minnis

Calls meeting to order at 8:15 a.m.  Opens a public hearing on SB 49,   SB 300 and SB 303.

 

 

 

 

SB 49, SB 300, and SB 303 PUBLIC HEARING

 

 

 

 

 

009

Kevin Starrett

Executive Director, Oregon Firearms Federation. Submits testimony in opposition to SB 49 and SB 300 (EXHIBIT A).  States these bills are gun control bills pure and simple. Responds to proponents’ arguments supporting bills.

 

 

 

 

065

Sen. Ringo

Asks what his suggestion is for domestic violence control.

 

 

 

 

066

Starrett

 States he does not believe any law can protect these victims.

 

 

 

 

105

Chair Minnis

Asks in what situations firearms should be removed from a person.

 

 

 

 

110

Starrett

Replies any situation which calls for arrest.

 

 

 

 

117

Chair Minnis

Gives example of how police officers take guns for safe keeping.

 

 

 

 

125

Starrett

Responds that if a person is willing to hurt somebody else, confiscating his firearms does not make him less dangerous. Taking away firearms does not render a person harmless.

 

 

 

 

163

Sen. Walker

Gives example of keeping weapons away from potential teen suicides.

 

 

 

 

174

Starrett

Replies teen suicides have nothing to do with these bills. 

 

 

 

 

182

Sen. Walker

Gives personal example of domestic violence.

 

 

 

 

194

Starrett

Replies that the person was guilty of a crime and should have been arrested and dispossessed of a firearm.

 

 

 

 

217

Chair Minnis

Asks Mr. Starrett to address the issue that if a restraining order is issued, that person cannot possess firearms.

 

 

 

 

247

Starrett

Does not believe a law can prevent a perpetrator from committing an act with a gun. Discusses the futility of restraining orders.

 

 

 

 

280

Susan Russell

Oregon Criminal Defense Lawyers Association.  Submits testimony in opposition of SB 49 (EXHIBIT B). Says SB 49 lacks standards and procedures for determining issues of domestic violence.

 

 

 

 

354

Russell

Continues discussing SB 49 and suggests amendments. Discusses SB 49’s restriction of the constitutional right to bear arms. Engrossed SB 49 and -2 amendment submitted to the record (EXHIBITS C and D).

 

 

 

 

391

Sen. Burdick

Asks about SB 300. Asks about amendments.

 

 

 

 

400

Russell

Says they do not take a position on SB 300. Does not oppose portion of SB 49 allowing either party to request a hearing.

 

 

 

 

413

Sen. Walker

Says she does not agree with the restraining order statement about dispossessing firearms.

 

 

 

 

414

Russell

Replies it would be fixed if each party had a chance to respond.

 

 

 

 

428

Sen. Walker

Asks if the respondent already has the right to request a hearing.

 

 

 

 

450

Russell

Explains how a hearing would take place.

 

 

 

 

TAPE 42, A

 

 

 

 

 

020

Sen. Ringo

Asks about the judge’s discretion in opposing firearms.  Says restraining orders can be issued if a violent act may occur.

 

 

 

 

044

Russell

Gives the example of pushing someone against a wall resulting in an injury, a bruise, and pain during a domestic argument.  Gives example of domestic violence where unintential injury results from an argument.

 

 

 

 

063

Sen. Ringo

Gives example of conflicting stories from spouses.

 

 

 

 

070

Russell

Says the courts are cautious in dropping a restraining order once it is in place. If the conduct is there, the motivation to cause injury, different kinds of things can become weapons, such as a wall.

 

 

 

 

129

Chair Minnis

Reiterates that the Criminal Defense Lawyers want a bill that has specific due process guaranteed.  Reiterates the need for a hearing and in a form that is fair to both sides.

 

 

 

 

137

Russell

Answers, yes, and the judge should have discretion in time limits.

 

 

 

 

145

Craig Prins

Committee Counsel.  Asks Ms. Russell about due process. Mentions Mathews v. Eldridge to set out the process.

 

 

 

 

146

Russell

Answers that sounds correct.

 

 

 

 

150

Prins

Asks if Ms. Russell has reviewed case law to determine if any ex parte restraining laws have been upheld under the 5th amendment due process challenges.

 

 

 

 

153

Russell

Answers not with respect to the firearms prohibition.

 

 

 

 

159

Prins

Suggests looking at cases that say due process is satisfied if there is an opportunity for contested hearing and there is a judge making explicit factors. States the U.S. Constitution states the right to bear arms.  Asks if that is an individual or collective right.

 

 

 

 

170

Russell

Replies she is not sure on that.

 

 

 

 

175

Sen. Burdick

Says it relates to collective rights.

 

 

 

 

177

Sen. Walker

Relates to cases where both spouses beat each other.

 

 

 

 

191

Russell

Describes cross petitions for restraining orders against each other. Says under current law, when a weapon is used, the conviction would be assault in the second degree, a felony,

 

 

 

 

220

Sen. Walker

Asks about the ease of renewing restraining orders. Asks if there should be some restrictions on getting renewed restraining orders.

 

 

 

 

232

Russell

Answers that under current law, the respondent would have an opportunity to be heard.

 

 

 

 

248

Sen. Burdick

Says the purpose of these bills was to close loopholes.

 

 

 

 

262

Russell

Refers to SB 300 and SB 303 that were drafted to address loopholes.  SB 49 presents an alternative.

 

 

 

 

300

Vice Chair Burdick

Asks if the policy should be consistency for federal prosecution or should a state system of prosecution be adopted.

 

 

 

 

310

Russell

Answers the federal penalties are usually greater.

 

 

 

 

348

Andrea Meyer

American Civil Liberties Union (ACLU). States that SB 300 is ok.  Expresses concerns with SB 49 due process issues.

 

 

 

 

353

Prins

Asks if ex parte order violates due process. Says there is a difference between a due process issue and a violation of due process.

 

 

 

 

359

Meyer

Replies the concern is that there has to be the opportunity to be heard. 

 

 

 

 

365

Vice Chair Burdick

Asks if the concern is about Assault 4, the permanency of the gun ban, or if the gun ban goes into effect at all.

 

 

 

 

380

Russell

Replies the concern is the length of the prohibition as well as the blanket prohibition which is not specific to the case.

 

 

 

 

418

Nick Coffee

Salem resident.  Opposes SB 49. Gives personal experience on restraining orders.  Thinks that restraining orders should be issued easily.

 

 

 

 

TAPE 41, B

 

 

 

 

 

077

Coffee

Continues discussing how civil liberties are being challenged.

 

 

 

 

083

Sen. Ringo

Asks counsel to clarify about the restraining order.

 

 

 

 

092

Prins

Replies that civil restraining orders and enforcement are issued when the judge declares contempt. Says there is “other relief” portion of the restraining order.  It is not a crime to violate that, but it is contempt.

 

 

 

 

119

Sen. Ferrioli

Asks if the judge has the discretion to take, or not take, action on firearms in relation to the restraining power.

 

 

 

 

127

Prins

Clarifies this does not touch the judge’s contempt powers.  Clarifies further, it makes it unlawful to possess a firearm after that contested time has passed.

 

 

 

 

145

Sen. Ferrioli

States that judges have the discretion.

 

 

 

 

156

Rod Harder

National Rifle Association. Says the federal law is specific and offers more protection than SB 300 and SB 49.  Under federal law only the respondent can demand a hearing. Restraining orders should be issued for safety. Refers to the guarantee of the constitution that is protected by due process.

 

 

 

 

227

Vice Chair Burdick

Asks about Mr. Harder’s comment on the protection of having only the respondent requesting a hearing.

 

 

 

 

245

Harder

Responds about frivolous complaints and restraining orders.

 

 

 

 

252

Sen. Walker

Asks where the protection is.

 

 

 

 

260

Prins

Refers to the federal statute which says the prohibition of firearms is only applicable after a hearing of which the subject is notified and had an opportunity to participate.  In Oregon law, only the respondent requests a contested hearing; that is not a requirement of the federal law.

 

 

 

 

294

Vice Chair Burdick

Reiterates that at the federal level the hearing is automatic.  At the state level the hearing is not held unless requested.

 

 

 

 

310

Prins

Responds the federal prohibitions are applicable to state law. Says states have different ways of getting restraining orders.

 

 

 

 

337

Harder

Discusses the judges’ discretion.

 

 

 

 

342

Sen. Walker

Asks if the petitioner should have the right to request a hearing.

 

 

 

 

350

Harder

Answers he is not comfortable with due process in restraining order hearings.

 

 

 

 

373

Vice Chair Burdick

Summarizes her understanding is that Oregon’s law allows ex parte restraining orders. There is no automatic hearing. Asks if a hearing was automatic, would that take care of the concerns.

 

 

 

 

412

David Nebel

Oregon Law Center.  Explains how the judge has discretion to enter orders for the protection of the petitioner and children saying respondent is not allowed to possess firearms while the restraining order is in effect.    

 

 

 

 

TAPE 42, B

 

044

Nebel

Explains what SB 300 is seeking to do. 

 

 

 

 

057

Sen. Ferrioli

Refers to the Oregon constitution and the right to bear arms. Shares concerns about the due process issue.

 

 

 

 

079

Lisa Naito

Commissioner, Multnomah County. Says the intention of SB 49 was to parallel federal requirements and to achieve gun dispossession. 

 

 

 

 

109

Sen. C. Starr

Says people are not protected by taking away guns. Citizens protect themselves with guns. States that this is gun control legislation which he does not accept. Opposes these bills.

 

 

 

 

130

Sen. Ringo

States that the Criminal Defense Lawyers say there should be discretion in this bill.   

 

 

 

 

145

Naito

Responds the intention was not to interfere with discretion of the court. Discusses the problems of domestic violence and how guns are a big part of that.

 

 

 

 

162

Prins

Explains the exceptions in federal law for law enforcement officers.  Relates to SB 49 in a misdemeanor assault. Asks if in Oregon the defendant had waived right to counsel, would a prior conviction be valid.

 

 

 

 

179

Sen. Ferrioli

Says judges have the authority.  Asks are judges refusing to consider firearms seizure. Asks are police not enforcing these orders.

 

 

 

 

191

Naito

Responds it is not clear under state due process.

 

 

 

 

208

Nebel

Says this bill would not result in searching for guns. SB 300 would make this a crime under federal law, but it would be in a U.S. Marshal's jurisdiction.  Explains differences between contempt of court and a crime.

 

 

 

 

233

Staff

Submits additional written testimony (EXHIBITS E, F, and G).

 

 

 

 

234

Vice Chair Burdick

Closes public hearing on SB 49, SB 300, and SB 303.  Adjourns meeting at 9:55 a.m.

 

 

 

 

 


 

EXHIBIT SUMMARY

 

A – SB 49 and SB 300 written testimony, K. Starrett, 7 pp

B – SB 49, written testimony, S. Russell, 1 p

C – SB 49-2, hand engrossed, staff, 19 pp

D – SB 49-2 amendments, staff, 1 p

E – SB 49, written testimony,  M. Schrunk, 1 p

F – SB 300, written testimony, J. Broadfoot, 2 pp

G – SB 49, SB 300, SB 303, written testimony, D. Simmons, 1 p