Editorial: Courts should overturn ‘Red Flag’ law

A number of Nevada counties have passed Second Amendment sanctuary resolutions in response to state lawmakers passing a “Red Flag” law in 2019 that would allow persons accused of being a potential danger to themselves or others to have their firearms confiscated by order of a judge.

But rather than threatening to flout the law, the better route is the one taken by Elko County commissioners recently and that is to challenge the law in the courts. The commissioners voted to join a lawsuit filed in December by attorneys for NevadansCAN (Citizens Action Network) that argues the “Red Flag” section of Assembly Bill 291, which was passed on a near party-line vote with Democrats in favor and Republicans opposed, is unconstitutional because it violates the right to due process and the right to keep and bear arms — as guaranteed by the Second Amendment of the U.S. Constitution and the Nevada Constitution, which states, “Every citizen has the right to keep and bear arms for security and defense …”

According to the Elko Daily Free Press, at the start of the meeting Elko County Sheriff Aitor Narvaiza declared, “On Jan. 7, 2019, I was elected sheriff of Elko County. I took an oath to protect the constitution of the United States and the constitution of the state of Nevada. I’m here to tell the lawmakers to keep your hands off our guns.”

He was quoted as saying, “Let’s enforce the laws that we have which are reasonable instead of enacting more laws which are unconstitutional. … A great president once said this country cannot be defeated in combat, but it can be defeated within. Right now this country is crumbling, slowly, due to weak-minded politicians and lawmakers who push unconstitutional laws for personal gains and to fill their pockets.”

He received several rounds of applause the newspaper reported.

The litigation appears to have sound legal footing due to a recent unanimous Nevada Supreme Court ruling. The court found that gun ownership is such a fundamental right that it cannot be taken away merely by a judge’s ruling, opining that a person charged with misdemeanor domestic battery is entitled to a trial by jury, because the state Legislature in 2017 enacted a law saying someone convicted of such a crime could have their right to keep and bear arms denied.

The U.S. Supreme Court has held that only those persons charged with a “serious” crime are entitled to a jury trial. The unanimous Nevada opinion written by Justice Lidia Stiglich states the change in state law to prohibit firearms possession by someone convicted of domestic violence effectively increases the “penalty” and makes the crime “serious” rather than “petty.”

“In our opinion, this new penalty — a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions — ‘clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one,’” Stiglich wrote in a case out of Las Vegas.

The NevadansCAN lawsuit declares, “This (“Red Flag”) law makes mincemeat of the due process of law, will endanger law enforcement and the public, and is a tool for stalkers and abusers to disarm innocent victims. Empirical data is available that nearly a third of such orders are improperly issued against innocent people, in states with experience of the operation of such a law.”

Proponents of such laws often cite the Oct. 1, 2017, mass shooting that left 58 country music concert goers dead in Law Vegas as justification, but neither this “Red Flag” law nor the recently enacted tougher background check law would have prevented that tragedy.

AB291 defies the Second Amendment right to bear arms, the Fourth Amendment right to be secure from unreasonable searches and seizures, the Fifth Amendment right to not be deprived of life, liberty, or property without due process of law and the 14th Amendment prohibition against states abridging the privileges and immunities of U.S. citizens.

It must be overturned and litigation is the proper route to do so.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Source: Editorial: Courts should overturn ‘Red Flag’ law

Week in Political Cartoons ~ 2 W/E November 30th, 2019

Nevada Supreme Court holds hearing on Pahrump water order appeal | Pahrump Valley Times

A decision on water law and the extent of the Nevada State Engineer’s authority over domestic wells is one step closer to reality, with the Nevada Supreme Court recently holding a hearing to take oral arguments from both parties in the appeal lawsuit filed by the engineer’s office over water Order #1293(A).

A decision on water law and the extent of the Nevada State Engineer’s authority over domestic wells is one step closer to reality, with the Nevada Supreme Court recently holding a hearing to take oral arguments from both parties in the appeal lawsuit filed by the engineer’s office over water Order #1293(A).

The water order was issued in Dec. 2017 as a method of curbing the drilling of new domestic wells in Pahrump’s Basin #162. The order created a new requirement for property owners to purchase two-acre feet of water rights and relinquish them back to the state prior to drilling a new domestic well, unless water rights had already been relinquished or dedicated to the property for that purpose.

This prompted immediate resistance from local property owners, real estate agents and well-drilling companies. Together, those opposing the order formed Pahrump Fair Water LLC and filed a lawsuit with a Nevada district court to halt the order. That court decision late last year to overturn the water order, leading to the state engineer’s appeal of that decision.

The matter has been with the Nevada Supreme Court since early this year, with a stay on the lower court’s decision issued, keeping the order in effect until such time as the Supreme Court renders a decision. The case, #77722, has now been submitted for a final ruling.

Due to the significance of the subject at hand and the wide-ranging impact a decision on the case could have, the decision has been placed in the hands of the “en banc” court rather than a smaller panel. In typical cases, a panel of only three Nevada Supreme Court justices is used to make rulings but for the appeal on Order #1293(A) the entire court of all seven justices is being utilized.

Attorney David Rigdon of Taggart and Taggart, LTD, the law firm representing Pahrump Fair Water, explained that the hearing held on Nov. 5 focused primarily on two central arguments, whether the state engineer needed to provide notice and hold a hearing before issuing the order, and whether or not the state engineer had the authority to regulate domestic wells in this manner in the first place.

“Both sides had what we call in the business a ‘hot bench’ with judges regularly interrupting the presentation to ask questions,” Rigdon detailed when asked to provide a brief overview of what occurred at the hearing on Nov. 5. “Most of the questions about the notice were directed at the state engineer’s attorney, while most of the questions about legal authority were directed at us.”

The Nevada Attorney General’s Office, which is representing the state engineer’s office, declined to provide an overview of the Nov. 5 hearing.

However, Rigdon said he felt both sides had made good presentations but there was no way of telling which direction the justices would ultimately turn. He, Pahrump Fair Water and the state engineer’s office, as well as the many local property owners and other stakeholders involved, will simply have to wait to see how the Nevada Supreme Court rules.

For those who would like to listen to the oral arguments made during the Nevada Supreme Court hearing visit bit.ly/2QAokKH

Docket Number(s): 77722
Date: 11/05/2019 Time: 10:00 a.m. Location: Carson City
Before the En Banc Court
Appearances:
James N. Bolotin
Paul G. Taggart

Start Time Speaker Notes
10:03:42 AM Chief Justice Gibbons Voluntary Disclosure
10:05:11 AM Chief Justice Gibbons Case Called
10:05:44 AM James N. Bolotin As counsel for the Appellant
10:23:57 AM Paul G. Taggart As counsel for the Respondents
10:43:17 AM James N. Bolotin As counsel for the Appellant
10:48:49 AM Chief Justice Gibbons End Argument, Case Submitted

Source: Nevada Supreme Court holds hearing on Pahrump water order appeal | Pahrump Valley Times

Week in Political Cartoons ~ W/E November 10th, 2019