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Measure 114 trial: State objects to testimony from Oregon State Police superintendent on number of bullets troopers carry

Lawyers for the state Tuesday objected to testimony from Oregon State Police Supt. Casey Codding about the type of guns and rounds of ammunition his troopers typically carry on the job during a trial on whether gun control Measure 114 violates the state constitution.

Oregon Special Assistant Attorney General Harry B. Wilson called the information irrelevant because the voter-approved gun control Measure 114 specifically excludes law enforcement from its restriction on the use of gun magazines that can hold more than 10 rounds.

Law enforcement officers are invested with statutory authority and a responsibility to protect the public that civilian gun owners simply do not have, Wilson said.

“This is not relevant to civilian defense,” Wilson argued. “It’s an apples to oranges comparison that is not relevant to the determination of the constitutionality of Measure 114.’’

Attorney Tony L. Aiello Jr., who represents the two Harney County gun owners who filed the suit challenging the voter-approved measure, said Codding’s testimony is intended to counter the state’s argument that magazines with more than 10 rounds aren’t necessary for self defense.

Measure 114 calls for a permit to buy a gun, bans the sale, transfer and manufacture of magazines holding more than 10 rounds and requires a completed criminal background check before any sale or transfer of a gun. Voters last November approved the measure with 50.7% of the vote, but it has been stalled since Harney County Circuit Judge Robert S. Raschio put it on hold just before it was set to take effect Dec. 8.

The issue before Raschio is whether the measure’s regulations are lawful under Article 1, Sec. 27 of the Oregon Constitution, which establishes a right to bear arms.

“As stated in my opening, it’s a civilian that encounters evil first,” Aiello argued.

Wilson interjected, “Then put a civilian on to talk about self-defense. This is a different situation.’’

Aiello said civilians defend themselves with guns in situations that aren’t that different from what law enforcement faces.

“Self-defense is self-defense,” he argued. “The statute doesn’t say that large capacity magazines are only useful in the hands of law enforcement. It doesn’t say that. And I think that Superintendent Coddings’ testimony will support that.”

Raschio on Tuesday allowed the superintendent’s testimony, as well as subsequent testimony from the sheriffs of Union and Harney counties, but said he’d decide overnight based upon further study of the law whether or not the evidence is relevant for consideration in the case.

Codding, a 27-year state police veteran who was appointed superintendent in February,  testified that state troopers use their firearms to “defend themselves or others.”  (Codding was a member of a state police SWAT team who shot Robert “LaVoy” Finicum, a leader of the armed takeover of the Malheur National Wildlife Refuge, in the back in 2016 after Finicum had sped away from police and crashed into a snowbank to avoid a police roadblock.)

Each trooper typically is issued Smith & Wesson 9mm handguns with a 17-round magazine plus one in the chamber and two additional 17-round magazines for a total of 52 bullets, Codding testified.

Codding said he also has a duty-issued Smith & Wesson AR-15 rifle with 20-round and 30-round magazines. Typically, three magazines are assigned with the rifle but Codding said he’s collected additional during his career.

When Aiello asked Codding if he takes his police-issued firearms home with him, the state’s lawyer objected, calling it irrelevant and prejudicial.

Codding said troopers who respond to work from home often do take their duty-guns home with them.

The gun owners’ lawyer attempted to elicit testimony from Codding about Trooper Andrew Tuttle’s firing of 47 shots during a gunfight along Interstate 5 outside Salem on April 10. A grand jury found no criminal wrongdoing by the officers involved, who shot and killed a carjacking suspect.

Codding said he was shown a video of the April shooting and didn’t have an independent memory of the number of shots fired, though he heard a plaintiff’s lawyer moments earlier at trial mention that 40-plus bullets had been shot. He also said he was told an off-duty officer also assisted in that encounter.

Union County Sheriff Cody Bowen and Harney County Sheriff Dan Jenkins then each testified that their deputies often have to rely on armed civilians because it takes time for their deputies to respond to calls in their largely rural communities. Bowen and Jenkins each testified about the threats of attacks from bears, wolves and coyotes in their communities.

“I’ve never found myself in a situation where I wish I had less bullets,” Bowen said.

Earlier Tuesday, a lawyer for the state sought to discredit the testimony of Ashley Hlebinsky, a former curator at the Cody Firearms Museum in Wyoming called by the gun owners challenging Measure 114 to testify about the earliest guns made.

After Hlebinsky spent more than an hour on the stand, Wilson, the state’s lawyer, delved on cross-examination into the awards Hlebinsky had received from the Second Amendment Foundation and into Hlebinsky’s husband’s ties to the firearms industry.

Wilson even referenced the July opinion of Oregon’s U.S. District Judge Karin J. Immergut, who highlighted Hlebinsky’s professional and personal ties to the gun industry and lack of training as an historian when assessing her credibility after she had testified earlier this year in a separate challenge to the measure in federal court.

Raschio made it clear that the federal judge’s ruling won’t influence him.

“I don’t care, frankly, about other courts’ determinations on credibility, unless they found them in contempt or they perjured themselves,” Raschio said. “I’ll make my own credibility determinations, Mr. Wilson.”

Raschio, though, allowed Wilson’s line of questioning.

“You’ve done consulting work for Daniel Defense, correct?” Wilson asked Hlebinsky.

Hlebinsky said that the defense arms manufacturer paid her for help on how to create a museum.

“Daniel Defense manufactured the firearm used in the Uvalde mass shooting, correct?” Wilson asked. The gunman fired an AR-15 rifle, killing 19 schoolchildren and two teachers at Robb Elementary School in Uvalde, Texas.

Aiello objected to the question, saying it was irrelevant.

Wilson told the court he was attempting to show Hlebinsky’s alleged bias.

The judge said he didn’t see how the use of the Uvalde gun impacted the witness’ credibility.

“What you’re doing is inflammatory,” Raschio ruled, “and I’m going to sustain the objection.”

Wilson continued, eliciting testimony that her husband had worked in the firearms industry for decades.

“Isn’t it correct that your husband owns more than $1 million in stock from a company that manufactures ammunition?” Wilson asked.

Aiello objected, calling it offensive to suggest the job of Hlebinsky’s spouse would affect her testimony. Wilson countered that a witness’ household income could impact its members’ motivations.

Raschio allowed it.

Hlebinsky confirmed that her husband owns more than $1 million in stock from a company that manufactures ammunition, Ammo Inc., yet no longer works for the company. On redirect, she said she began studying firearms history her freshman year of college, long before she met her husband in 2013 and married in 2018.

The evaluation comes in the wake of a landmark U.S. Supreme Court ruling in June 2022 that struck down a New York law that placed strict limits on carrying guns outside the home. In the high court’s ruling in New York State Rifle & Pistol Association, Inc. v. Bruen, the 6-3 majority directed lower courts to use a new “text-and-history” standard when evaluating challenges to firearms regulations.

Courts must determine whether “the Second Amendment’s plain text” protects the conduct in which the plaintiff wishes to engage and, if it does, then decide if the regulation “is consistent with this Nation’s historical tradition of firearm regulation.’’

In the Harney County challenge, the gun owners’ lawyer has argued that firearms capable of firing multiple rounds were present in Oregon in the 1850s and known to those who ratified the state constitution, which took effect in 1859.

Hlebinsky testified that multi-shot firearms and repeating firearms existed in the 1800s. Yet on cross-examination, she acknowledged that she was not aware of any firearms with a capacity of more than 10 rounds that were commonly used for self-defense before 1860.

The state argues that guns equipped with large-capacity magazines were unknown in Oregon in the 1850s, and any repeating-shot firearms —  such as revolvers or multi-barrel pistols — that existed in the 1850s in Oregon are “technologically distinct” from guns with magazines that hold more than 10 rounds today.

— Maxine Bernstein

Email [email protected]; 503-221-8212

Follow on Twitter @maxoregonian

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