State Ethics Commission Votes to Pursue Full Investigation of Fagan
A federal judge ruled provisions in Measure 114 are constitutional that ban large-capacity magazines and require a permit to purchase a gun in Oregon. Also last week, the Oregon Government Ethics Commission voted to launch a full investigation into the relationship between former Secretary of State Shemia Fagan and a cannabis company.
Voters approved Measure 114 in the 2022 election but its enforcement has been held up by a state judge who questioned its constitutionality. The state challenge will go to trial in September.
In a 122-page ruling, U.S. District Court Judge Karin J. Immergut described Measure 114’s provisions as “common sense” and “consistent with the Nation’s history and tradition of firearm regulation.”
She said the Second Amendment protects an individual’s right to self-defense inside and outside their home, but large-capacity magazines are not commonly used for self-defense. She also said the requirement to secure a permit to buy a gun is a gun regulation the U.S. Supreme Court has deemed acceptable under the Second Amendment.
“A firearm is not useless without a (large-capacity magazine) because magazine capacity is not a determining factor in the operability of a firearm. And the right to bear arms does not become ‘meaningless’ because the government chooses to restrict LCMS (large-capacity magazines),” Immergut wrote in her opinion.
Noting large-capacity magazines have “uniquely dangerous properties,” her ruling said, “While it is uncommon for an individual to fire more than ten shots in self-defense, it is common for mass shooters to fire more than ten shots, especially when the mass shooter is using a large-capacity magazine”. She said introducing weapons used in war to the general public causes “unprecedented societal concern”.
“The Second Amendment allows governments to ensure that only law-abiding, responsible citizens keep and bear arms.”
Immergut explained she evaluated the permit-to-purchase provision based on its text and found it to be “the kind of narrow, objective criteria” endorsed by the U.S. Supreme Court in assessing gun control laws. Measure 114 requires a potential gun purchaser to obtain a permit after being fingerprinted, pass a background check complete a gun safety course and pay a fee.
“The Second Amendment also allows governments to ensure that only law-abiding, responsible citizens keep and bear arms,” Immergut wrote. “(Ballot Measure) 114′s permit-to-purchase regime, on its face, sets forth objective criteria for the issuance of permits, and does not allow unfettered discretion by permitting agents in assessing an applicant’s mental health status to ensure that only law-abiding and responsible citizens can purchase firearms in the state of Oregon.”
The ruling pleased gun regulation advocates and displeased gun rights advocates, who pledged to appeal the ruling. Kevin Starrett, executive director of the Oregon Firearms Federation, posted on its website, “What we have read defies belief. While not entirely unexpected, Immergut’s ruling is simple nonsense and sure to be overturned at the 9th Circuit.”
It is the first judicial determination based on a trial. Four separate challenges of Measure 114 were consolidated into a single case before the court. Jess Marks, executive director of the Alliance for Gun Safety, praised Immergut’s opinion as a “victory for those who have lost loved ones to gun violence and to all the Oregonians who demanded change.” He added, “We know Measure 114 is an effective and life-saving policy, and now a federal judge has ruled it is also in line with the U.S. Constitution.”
Full Investigation of Fagan
The Oregon Government Ethics Commission voted unanimously to pursue a full investigation into whether Fagan leveraged her elected position for personal financial gain by contracting to work for a private company while her office was conducting an audit of state cannabis regulation.
An OGEC staff report said, “Based on the information available in this preliminary review, it appears Shemia Fagan may have used her position to create or advance an opportunity for personal financial gain and that opportunity was available to her because she held her official position.” Staff said Fagan failed to report income from her side job in an annual disclosure report.
Under pressure, Fagan resigned her post May 8.
Fagan’s attorney said Fagan kept her public service and her personal employment separate, and that she followed all state ethics laws. “If suspicion and innuendo are enough to find that Ms. Fagan violated ethics rules, despite the undisputed evidence of Ms. Fagan’s good faith actions to follow all OGEC guidelines,” her attorney wrote, “then OGEC would allow innuendo and optics alone to render suspect the private employment of hundreds of public officials across Oregon.”
In the course of the exchange between OGEC staff and Fagan’s attorney, it was revealed the former secretary of state had applied for other jobs including as a certified life coach and interim CEO of the Courthouse Dogs Foundation in Washington.
OGEC has 180 days to complete its full investigation. Meanwhile, the U.S. Department of Justice and the Oregon Department of Justice are conducting their own investigations. The state inquiry centers on whether Fagan improperly influenced a cannabis industry audit to reflect concerns expressed by her cannabis business client.