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.
The U.S. Department of Justice is leading a new effort to fight domestic violence. U.S. Attorney General William P. Barr announced details earlier this week.
U.S. Attorney General William P. Barr recently announced the formation of a Domestic Violence Working Group aimed at keeping guns out of the hands of convicted domestic abusers, using the tools of federal prosecution to stop and prevent domestic violence.
The group will operate under the auspices of the Attorney General’s Advisory Committee (AGAC) and be comprised of nine U.S. attorneys across the country, chaired by U.S. Attorney for the Northern District of Texas Erin Nealy Cox.
“Too often, domestic abusers start with threats and abuse, and end up committing extreme violence and even homicide, with devastating impact on families and the community around them,” Barr said in a news release that provided details. “I have directed this working group to examine this issue and determine the best way to use federal gun prosecutions and other appropriate tools to supplement state, local and tribal efforts to address domestic violence.”
Cox said: “With so many domestic disputes escalating from bruises to bullets, we felt we needed to supplement our state and local partners’ efforts to curb domestic violence with federal prosecutions. We hope our initial cases send a message to convicted abusers: Not only could the Justice Department theoretically prosecute abusers for firearm possession – they have and they will.”
Federal law has long barred convicted felons, as well as individuals subject to certain domestic violence protective orders or convicted of domestic violence misdemeanors, from possessing firearms.
The Justice Department news release said:
■ Offenders with domestic violence in their past pose a remarkably high risk of homicide. Research shows that abusers with a gun in the home are five times more likely to kill their partners than abusers who don’t have that same access to a firearm. And according to one recent study, more than half of America’s mass shootings are cases of extreme domestic violence.
■ Keeping guns from domestic abusers legally prohibited from possessing them would significantly reduce violence in America, a major priority of the Justice Department.
■ Federal gun cases involving domestic violence present unique challenges. In some states, the federal and state definitions of domestic violence differ, requiring complex legal analysis that varies based on the location of conviction.
The working group will share best practices, legal analysis and guidance on prosecuting abusers who unlawfully possess guns, and will advise U.S. attorneys across the country on outreach to local law enforcement, judges, and nonprofit groups.
At a glance
Working Group members include:
Scott W. Brady, U.S. Attorney for the Western District of Pennsylvania
Robert M. Duncan, Jr., U.S. Attorney for the Eastern District of Kentucky
Nicola T. Hanna, U.S. Attorney for the Central District of California
Justin E. Herdman, U.S. Attorney for the Northern District of Ohio
Erin Nealy Cox, U.S. Attorney for the Northern District of Texas
Christina E. Nolan, U.S. Attorney for the District of Vermont
Byung J. Pak, U.S. Attorney for the Northern District of Georgia
R. Trent Shores, U.S. Attorney for the Northern District of Oklahoma
Timothy J. Downing, U.S. Attorney for the Western District of Oklahoma
Source: U.S. Justice Department
The Legislature could pass a controversial gun control measure without ever holding a public hearing.
At issue is a red flag law, which allows courts to order the confiscation of weapons from people who pose a threat to themselves or others.
Narrowly tailored, these laws can be beneficial. For instance, the Parkland, Florida, school shooter had a history of disturbing and dangerous behavior. Police went to his house 39 times in seven years. It could have prevented a mass murder had a court taken away his weapons.
In the aftermath of the Parkland shooting, some prominent conservatives, such as David French with National Review, came out in support of red flag laws. But getting the details wrong can turn a good idea into a bad law. It’s a tough balancing act to design a statute that allows government to seize someone’s weapons while respecting an individual’s right to due process.
Finding that balance requires discussion and compromise. That could have happened. Early in the session, state Sen. Julia Ratti, D-Sparks, proposed a very broad red flag bill, Senate Bill 120. For instance, included in the definition of high-risk behavior was the act of acquiring a firearm within six months of displaying a firearm.
A judge who determined someone engaged in those behaviors and posed a risk could order that individual to turn over his or her firearms to law enforcement. The bill also required only “clear and convincing” evidence, a lower standard than beyond a reasonable doubt. Under the proposal, a judge could have ordered an individual’s firearms be confiscated without the subject knowing he’d been accused of threatening behavior.
If the court issued such an order — potentially without the person’s knowledge — the information would have been sent to the Nevada Records of Criminal History. Subjects would thus be prevented from passing a background check if they tried to legally buy a firearm. That makes sense. No point in taking someone’s firearms away if they’re allowed to just buy another one. What doesn’t make sense is that if the information doesn’t get removed automatically from the database if the court removes the protection order. The individual must petition a court to remove it.
This means the government could take your guns without you even knowing you’d been accused. And if you cleared your name, you’d have to return to court to restore your ability to purchase firearms. So much for innocent until proven guilty and due process.
Public and behind-the-scenes input would have improved this bill. But SB120 died in mid-April without a hearing.
If that happens, there won’t be a public hearing and gun owners may not even find out what’s in the bill until after it has passed.
That would be a mistake. A conversation about a red flag law is worth having, but getting the details right won’t happen if Democrats rush it through.
Victor Joecks’ column appears in the Opinion section each Sunday, Wednesday and Friday. Listen to him discuss his columns each Monday at 10 a.m. with Kevin Wall on 790 Talk Now. Contact him at email@example.com or 702-383-4698. Follow @victorjoecks on Twitter.
Clark County commissioners open to gun restrictions on Strip
CARSON CITY, Nev. (AP) — Some Clark County commissioners have voiced general support for considering firearm restrictions on the Las Vegas Strip if Nevada lawmakers give them the power to create stricter gun laws.
The county would be given such power under the omnibus AB291 gun bill moving through the Democrat-controlled Legislature despite widespread opposition from Republicans and gun rights groups.
Some commissioners say state law prevented the body from enacting gun regulations following the deadliest mass shooting in modern U.S. history. The gunman attacked a 2017 Las Vegas music festival and used bump stocks to mimic the firing rate of an automatic firearm.
AB291 - Revises provisions relating to public safety. (BDR 15-759)
Captured from nellis - 4-29-2019 6:35 pm
Reprint Total Opinions Opinions in Favor Opinions Against View Comments Original Bill Version 1913 208 1705 April 22, 2019 41 1 40 Bill Totals 1954 209 1745 View Comments
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"As a large metropolitan area, we simply face different law enforcement challenges than other places in the state," said Commissioner Justin Jones at a bill hearing, mentioning the millions of tourists who visit Las Vegas each year. He also said declaring the Las Vegas Strip a gun-free zone on major holidays would be a common-sense gun measure.
Jones said in an interview that he expects there to be interest on firearm restrictions for the Las Vegas Strip, if the Nevada bill passes.
Commissioner Tick Segerblom says he would go further.
Segerblom said he's not only in support of those restrictions, but wants a discussion over adding an assault weapons ban, handgun registrations and ammunition limitations.
Giving counties the ability to dictate gun laws allows the conversation over firearm issues to extend past the state's biennial legislative session, he said.
Nevada is one of the few states in which the Legislature meets every other year.
Jones and Segerblom are former state lawmakers who have backed gun bills in the past.
Commission Chairman Marilyn Kirkpatrick expressed support for considering gun regulations for the Strip corridor, but cautioned that the commission would have to consider the impact on large hunting shows.
The amended Nevada bill handily passed the Assembly with no Republican support. The Nevada bill would also ban bump stocks and lower the alcohol limit for legally possessing a firearm outside a person's home.
Unlike the original bill, the amended legislation would not allow cities and towns to enact stricter firearm laws. Yet the changes to the bill have not blunted criticism.
Don Turner, president of the Nevada Firearms Coalition, said the group remains in strong opposition to the amended bill and is most concerned with provisions giving counties the ability to create stricter firearm laws, arguing that it's easier to pass a local ordinance than a state law.
Assemblyman Tom Roberts, a Republican who voted against the amended bill, said he is in support of the bump stock ban, but disagreed with giving counties the power to create more stringent firearm laws. He argued it would create a patchwork of laws.
"It's not something I believe that we should be giving up to the county commissions, when we have such a large and diverse state with huge differences of opinion on this issue," he said.