# Oregon Firearms Federation, Inc. v. Brown

> District Court, D. Oregon · May 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10396059

## Case

- **Court:** District Court, D. Oregon
- **Decided:** May 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10396059

## How later opinions describe it (automated extraction)

- noting that summary judgment may not be appropriate in situations where the case “comes . . . almost in the status in which it should come to a trial court.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

OREGON FIREARMS FEDERATION, et Case No. 2:22-cv-01815-IM (Lead Case)
al., 3:22-cv-01859-IM (Trailing Case)
3:22-cv-01862-IM (Trailing Case)
Plaintiffs, 3:22-cv-01869-IM (Trailing Case)

v.

TINA KOTEK, et al., ORDER DENYING DEFENDANTS’
MOTION FOR PARTIAL SUMMARY
Defendants. JUDGMENT AND DENYING
______________________________________ PLAINTIFFS’ MOTION FOR
MARK FITZ, et al., SUMMARY JUDGMENT

Plaintiffs,

v.

ELLEN F. ROSENBLUM, et al.,

Defendants.
______________________________________
KATERINA B. EYRE, et al.,

Plaintiffs,

v.
ELLEN F. ROSENBLUM, et al.,

Defendants.
______________________________________
DANIEL AZZOPARDI, et al.,

Plaintiffs,

v.

ELLEN F. ROSENBLUM, et al.,

Defendants.
______________________________________

IMMERGUT, District Judge.

Before this Court is Defendants’ Motion for Partial Summary Judgment, ECF 163, as
well as Plaintiffs’ Motion for Summary Judgment, ECF 165. Defendants seek summary
judgment on Plaintiffs’ facial challenges to Oregon Ballot Measure 114’s (“BM 114”) permitting
provisions, and dismissal of Plaintiffs’ as-applied challenges to the same. ECF 163 at 2.
Plaintiffs seek summary judgment on all six of their claims against Defendants: a Second
Amendment challenge to BM 114’s permitting provisions (Claim One), a Fourteenth
Amendment challenge to BM 114’s permitting provisions (Claim Two), a Second Amendment
challenge to BM 114’s restrictions on large-capacity magazines (“LCMs”) (Claim Three), a Fifth
Amendment challenge to BM 114’s restrictions on LCMs (Claim Four), a Fourteenth
Amendment challenge to BM 114’s restrictions on LCMs based on retroactivity (Claim Five),
and a Fourteenth Amendment challenge to BM 114’s restrictions on LCMs based on vagueness
(Claim Six). ECF 165 at 1–6.
Finding that this case implicates important and unsettled questions of law, this Court
exercises its discretion to deny both Defendants’ and Plaintiffs’ motions. This Court additionally
finds that the record contains genuine disputes of material fact, which would benefit from full
development through trial. Accordingly, Defendants’ and Plaintiffs’ Motions are DENIED.1
BACKGROUND
The factual background of this consolidated action is set forth in this Court’s prior
Opinion and Order denying Plaintiffs’ Emergency Motion for a Temporary Restraining Order,

ECF 39, and this Court assumes the parties’ familiarity with those facts. Following this Court’s
denial of Plaintiffs’ motions for a temporary restraining order, this Court consolidated the four
related cases challenging the legality BM 114, ECF 62, and set this matter for an expedited trial
on the merits, ECF 139. A bench trial is set to begin on June 5, 2023. ECF 156.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, a party is entitled to summary judgment if the
“movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court views the evidence in the light
most favorable to the non-movant and draws all reasonable inferences in the non-movant’s favor.
Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). While a court
must view the evidence in the light most favorable to the non-movant, a court “need not draw all

possible inferences in [the non-movant’s] favor, but only all reasonable ones.” Villiarimo v.
Aloha Island Air, Inc., 281 F.3d 1054, 1061 n.10 (9th Cir. 2002) (citing O.S.C. Corp. v. Apple
Computer, Inc., 792 F.2d 1464, 1466–67 (9th Cir. 1986)). “Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts” are not

1 This Court has determined that oral argument is not necessary for disposition of the
parties’ motions. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (district court can
decide summary judgment without oral argument if parties have an opportunity to submit their
papers to the court); see also L-R 7-1(d)(1).
appropriate at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
DISCUSSION
A. Bruen’s Legal Framework
As a threshold matter, it is essential to clarify the legal framework under which Plaintiffs’
Second Amendment challenges to BM 114’s permitting provisions and LCM ban must be

analyzed following the Supreme Court’s decision in New York Rifle & Pistol Ass’n v. Bruen, 142
S. Ct. 2111 (2022). As this Court previously stated in its Opinion and Order denying Plaintiffs’
Emergency Motion for a Temporary Restraining Order, Bruen dispensed with the two-step,
means-end test to assess the constitutionality of firearms regulations followed by courts in the
wake of District of Columbia v. Heller, 554 U.S. 570 (2008). ECF 39 at 15. Instead, Bruen
creates a different two-step analysis, one rooted in the “Nation’s historical tradition of firearm
regulation.” Bruen, 142 S. Ct. at 2126.
The first step in assessing whether a regulation violates the Second Amendment under
Bruen is to determine whether the plain text of the Second Amendment covers the conduct
regulated by the challenged law. Id. If a court finds that the conduct at issue is covered by the

plain text of the Second Amendment—which includes finding that the weapon in question is “in
common use today for self-defense”—then the Constitution presumptively protects that conduct.
Id. at 2126, 2134 (internal quotation marks omitted). The government must then affirmatively
prove, under Bruen’s second step, that the challenged regulation is consistent with the historical
tradition of firearm regulation. Id. at 2130.
Plaintiffs, in their Motion for Summary Judgment, argue that if this Court finds that
LCMs are in common use for lawful purposes today, this Court should end its analysis and need
not inquire into whether the challenged regulations are “consistent with the historical tradition of
firearm regulation.” ECF 165 at 38. Citing to Bruen’s observation that “the traditions of the
American people . . . demand[] our unqualified deference,” Bruen, 142 S. Ct. at 2131, Plaintiffs
argue that “the tradition . . . that law-abiding citizens may keep and bear arms that are commonly
possessed for self-defense . . . forecloses the state’s effort to ban these commonly possessed
arms.” ECF 165 at 38.2 Under Plaintiffs’ formulation, a court need not consider historical

evidence in considering any regulation on commonly used firearms, ECF 165 at 38; see also
ECF 161 at 17.3
This Court disagrees with Plaintiffs’ interpretation. As the Supreme Court made clear in
Bruen, “when the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. To justify its regulation, the government may
not simply posit that the regulation promotes an important interest. Rather, the government must
demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm
regulation.” 142 S. Ct. at 2126. (emphasis added). Thus, while a finding that the use of a certain

2 This Court notes that portions of Bruen to which Plaintiffs cite to support their
argument appear in the Supreme Court’s historical analysis, which supports this Court’s reading
of Bruen as requiring a court to consider both whether a firearm is commonly used for lawful
purposes such as self-defense and whether the challenged regulation comports with historical
tradition. See New York State Rifle & Pistol Ass’n., Inc. v. Bruen, 142 S. Ct. 2111, 2131 (2022).
Plaintiffs also selectively quote Bruen, and this Court notes that the full context of Plaintiffs’
citation occurs within a discussion about “judicial deference to legislative interest balancing” and
therefore does not stand for the proposition that courts must give “unqualified deference” to
firearms that are in common use today for self-defense. Id.
3 This Court notes that while Plaintiffs advance this interpretation of Bruen in their
Motion for Summary Judgment, ECF 165, and Proposed Pretrial Order, ECF 161, they appear to
concede that Bruen requires more than simply a finding that a firearm is currently in common
use in their Daubert Motions, ECF 177 at 9. There, Plaintiffs acknowledge that “the underlying
[Second Amendment] substantive law is set by Bruen, which prescribes two inquiries: [1]
whether ‘the Second Amendment’s plain text covers an individual’s conduct’; and [2] whether
‘the regulation is consistent with this Nation’s historical tradition of firearm regulation.’” Id.
(internal citation omitted) (emphasis added).
firearm is covered by the Second Amendment—which includes a finding that the firearm is in
common use for self-defense—creates a presumption of constitutionality under Bruen, that
presumption can be overcome if the government affirmatively demonstrates that the challenged
regulation is consistent with history and tradition.
This interpretation is supported by the analysis conducted in Bruen itself. There, the

Supreme Court found that “handguns are weapons ‘in common use’ today for self-defense,” and
are therefore presumptively protected by the Second Amendment. Id. at 2134–35. But the
Supreme Court did not end its inquiry with that finding alone. Instead, the Supreme Court
proceeded to the second step of the analysis and considered whether historical firearm
regulations were analogous to the challenged regulation. See id. at 2143. Ultimately, the
Supreme Court found that those historical laws did not illustrate a “historical tradition of firearm
regulation” like the kind that New York imposed on its citizens. Id. at 2156. But the Supreme
Court based that holding on its analysis of the historical evidence—not on its finding that
handguns are in common use for self-defense.

This Court acknowledges that Bruen considered the constitutionality of a firearm
permitting scheme, as opposed to regulations on the type of firearm that can be carried. But
nothing in the language of Bruen persuasively suggests that the new analytical framework
articulated by the Supreme Court applies only to permitting schemes or that the constitutional
inquiry shifts depending on the type of regulation at issue. Instead, Bruen stated that the test
applies to “firearm regulation” generally. Id. at 2126 (emphasis added). Accordingly, under
Bruen, this Court must decide first, whether LCMs actually are in common use today for lawful
purposes such as self-defense and, second, whether historical tradition supports the challenged
regulation.
At least one other court to confront this argument post-Bruen has reached the same
conclusion that this Court reaches today. In Delaware State Sportsmen’s Ass’n, Inc. v. Delaware
Dept. of Safety and Homeland Sec., the plaintiffs argued that a finding that LCMs and assault
weapons were “in common use” within the meaning of the Second Amendment meant that those
firearms could not be regulated and that “no historical analysis is necessary.” --- F. Supp. 3d ---,

2023 WL 2655150, at *9 (D. Del. Mar. 27, 2023). The court disagreed, finding that the Supreme
Court “made clear” in Bruen that “‘the standard for applying the Second Amendment is as
follows: When the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The government must then justify its
regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm
regulation.’” Id. (quoting Bruen, 142 S. Ct. at 2129–30). This Court agrees with the court’s
analysis in Delaware State Sportsmen’s Ass’n, Inc. and concludes that whether a weapon is in
common use for lawful purposes such as self-defense today is the first question—not the only
question—that a court must consider under Bruen. Accordingly, in considering Plaintiffs’

Second Amendment challenge, this Court will assess, first, whether Plaintiffs’ conduct is
covered by the Second Amendment, and if so, whether Defendants have demonstrated that BM
114 is consistent with this Nation’s historical tradition of firearm regulation.
B. The Parties’ Motions for Summary Judgment
Although Rule 56 states that a court may “grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law,” Fed. R. Civ. P. 56(a), a court is not required to grant summary judgment even
where it appears that there are no genuine issues of material fact.4 See Fed. R. Civ. P. 56

4 Plaintiffs argue in their reply briefing, for instance, that Defendants have forfeited the
issue of BM 114’s background check provisions by failing to substantively address those
Advisory Committee’s Note on 2007 Amendments (“It is established that although there is no
discretion to enter summary judgment when there is a genuine issue of material fact, there is
discretion to deny summary judgment when it appears that there is no genuine issue as to any
material fact.”) (emphasis added). Courts should exercise caution when considering a Rule 56
motion where the case presents complex issues of law or fact, or important or unsettled questions

of law. Petition of Bloomfield S. S. Co., 298 F. Supp. 1239, 1242 (S.D.N.Y. 1969), judgment
aff’d, 422 F.2d 728 (2d Cir. 1970); see also Kennedy v. Silas Mason Co., 334 U.S. 249, 256–57
(1948); Eby v. Reb Realty, Inc., 495 F.2d 646, 649 (9th Cir. 1974). Summary judgment may also
be properly denied out of pragmatic concerns for judicial efficiency, particularly where the
judicial time and effort necessary to perform thorough analysis of the facts as a prerequisite to
summary judgment would equal or exceed the time and effort necessary for trial and decision.
See Petition of Bloomfield S. S. Co., 298 F. Supp. at 1242.
This Court finds that pragmatic concerns weigh in favor of exercising discretion to deny
the parties’ respective motions for summary judgment.5 First, this case implicates complex issues

of fact, ranging from the historical uses and prevalence of certain weapons to the functional
similarities between the earliest firearms capable of firing more than ten rounds of ammunition
without reloading and the LCMs of modern-day use. As evidenced by the parties’ pre-trial

arguments in their response brief. ECF 211 at 1. Typically, a party waives arguments by failing
to raise those in responsive briefing. See Samica Enters. LLC v. Mail Boxes Etc., Inc., 460 F.
App’x 664, 666 (9th Cir 2011) (“Arguments not raised in opposition to summary judgment . . .
are waived.”). Nonetheless, this Court retains discretion to deny summary judgment even in
situations where there is no dispute of material fact.
5 This Court notes that Defendants bring both a motion for summary judgment as to
Plaintiffs’ facial challenges to BM 114’s permitting provisions, as well as a motion to dismiss
Plaintiffs’ as-applied challenges. This Court finds that the reasons that support denial of
Defendants’ motion for summary judgment apply with equal force to Defendants’ motion to
dismiss.
motions in which both sides vigorously contest the methodologies employed by each side’s
respective experts, the answers to these questions will require this Court to consider not only the
evidence put forth by either side, but the methods employed in collecting that evidence and the
potential bias involved in interpreting that evidence. See, e.g., ECF 171 (challenging Plaintiffs’
use of a survey on LCM ownership and use due to methodology); ECF 177 (challenging the

anticipated testimony of Defendants’ expert based on methodological choices). That task
inherently involves assessing credibility and weighing evidence, both of which are inappropriate
on a motion for summary judgment. See Anderson, 477 U.S. at 255.
Second, this case implicates both important and unsettled questions of law. Only a
handful of courts across the country have issued opinions interpreting prohibitions on LCMs or
certain permitting schemes in the wake of the Supreme Court’s decision in Bruen, and those
decisions have been rendered on motions for a preliminary injunction. See, e.g., Ocean State
Tactical, LLC v. State of Rhode Island, No. 22-CV-246 JJM-PAS, 2022 WL 17721175, at *16
(D.R.I. Dec. 14, 2022); Hanson v. D.C., No. 22-2256 (RC), 2023 WL 3019777, at *17 (D.D.C.

Apr. 20, 2023); Delaware State Sportsmen’s Ass’n, Inc. v. Delaware Dep’t of Safety &
Homeland Sec., No. CV 22-951-RGA, 2023 WL 2655150, at *13 (D. Del. Mar. 27, 2023); Bevis
v. City of Naperville, Illinois, No. 22 C 4775, 2023 WL 2077392, at *16 (N.D. Ill. Feb. 17,
2023); Herrera v. Raoul, No. 23 CV 532, 2023 WL 3074799, at *7 (N.D. Ill. Apr. 25, 2023);
Barnett v. Raoul, No. 3:23-cv-00209-SPM, 2023 WL 3160285, at *11 (N.D. Ill. Apr. 28, 2023).
Given the novelty and importance of the legal issues presented, this Court finds that the
determinations this Court is required to make in this case are more properly reached after the
benefit of a full trial rather than on a motion for summary judgment.
Third, this Court notes that it has set this matter for an expedited trial on the merits and
that the parties have already filed numerous pre-trial documents, including a joint Proposed
Pretrial Order, trial briefs, exhibit lists, witness lists, motions in limine, and Daubert motions.
See ECFs 167–181. Indeed, Plaintiff’s style their Motion for Summary Judgment as a trial brief
in the alternative, ECF 165 at 1, and Defendants rely heavily on their own trial brief in their

response to Plaintiffs’ motion, ECF 185 at 2. Given the overlap between the parties’ cross-
motions for summary judgment and the issues to be decided at trial, this Court finds that the time
and effort necessary to perform the summary judgment analysis would likely equal, if not
exceed, the time requested for trial. See Kennedy, 334 U.S. at 256 (noting that summary
judgment may not be appropriate in situations where the case “comes . . . almost in the status in
which it should come to a trial court.”). This Court further finds that, since it has set the matter
for expedited trial on the merits, no party will suffer prejudice from undue delay.
Finally, this Court notes that many of Plaintiffs’ claims do indeed depend on disputed
facts that this Court finds to be material to the outcome. For instance, the threshold question of

whether BM 114’s restrictions on LCMs involve conduct covered by the plain text of the Second
Amendment requires this Court to consider evidence of the prevalence of LCMs in modern day
society as well as their usage. The parties agree that LCMs are owned and possessed by millions
of Americans, ECF 161 at ¶¶ 5, 49, but do not agree that LCMs are commonly used for lawful
purposes such as self-defense, id. at 20; see also ECF 166-8, Ex. H at 10; ECF 185 at 11. The
parties also present competing factual evidence regarding the commonality and use of firearms
capable of firing more than ten rounds of ammunition without reloading throughout history.
Compare ECF 165 at 43 with ECF 185 at 11. These are central questions that this Court must
answer in determining the constitutionality of BM 114’s restrictions on LCMs, making these
disputed facts highly material.
The constitutionality of BM 114’s permitting provisions also involve disputed issues of
material fact. Whether the proposed fee associated with the permit-to-purchase provision is
reasonable, for instance, is a disputed fact that would require this Court to weigh evidence of

what constitutes a “reasonable” fee. Such weighing of evidence is not appropriate on summary
judgment, particularly considering that there is no evidence currently in the record regarding
what BM 114’s permit-to-purchase fee will be. ECF 185 at 8. Moreover, the parties—through
the deposition testimony of various witnesses—vigorously dispute the extent to which
Defendants are currently prepared to implement the permitting provisions of BM 114. Compare
165 at 24–25 with ECF 185 at 8.
A trial court may deny summary judgment “in a case where there is reason to believe that
the better course would be to proceed to a full trial.” Anderson, 477 U.S. at 257 (citing Kennedy,
334 U.S. at 256). This case implicates novel questions of law as well as issues of public

importance, which the Ninth Circuit has cautioned against deciding on summary judgment
“unless it is clear that more complete factual development could not possibly alter the
outcome[.]” TransWorld Airlines, Inc. v. Am. Coupon Exchange, Inc., 913 F.2d 676, 684 (9th
Cir. 1990). This Court finds that any judgment entered in this case will benefit from the full
presentation of evidence offered at trial and denies summary judgment for both parties.

//
//
//
CONCLUSION
For the foregoing reasons, this Court DENIES Defendants’ Motion for Partial Summary
Judgment and Motion to Dismiss, ECF 163, and DENIES Plaintiffs’ Motion for Summary
Judgment, ECF 165.

IT IS SO ORDERED.
DATED this 26th day of May, 2023.

/s/ Karin J. Immergut
Karin J. Immergut
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396059. Public record. Not legal advice.