A citizens’ rights organization has filed a lawsuit in Carson City District Court seeking an injunction to prevent the enforcement of the “Red Flag” provision of a law passed by Nevada lawmakers earlier this year.
Under the Red Flag section of the law persons accused of being a potential danger to themselves or others may have their firearms confiscated by order of a judge.
The suit filed by attorneys for NevadansCAN (Citizens Action Network) argues the Reg Flag section of Assembly Bill 291, which was passed on a near party-line vote with Democrats in favor and Republicans opposed, is unconstitutional, 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 …”
The suit, filed earlier this month, asks that a judge stop the law from taking effect as scheduled on Jan. 1.
“A person accused of being a danger may not even be aware of the court action against him, and his guns can be forcibly taken by law enforcement and his premises searched. Due process never enters into it,” a press release announcing the litigation quotes Mary Rooney, a plaintiff in the suit and a co-founder of NevadansCAN, as saying.
Another plaintiff and co-founder, Julie Chen Hereford, said, “The Red Flag provision violates both the Constitution of the United States and the Nevada State Constitution by giving judges the power to take away an individual’s right to keep and bear arms based on the accusation that the individual is dangerous and should not have a firearm.”
One of the principal arguments by the group’s suit is that a September ruling by the Nevada Supreme Court essentially found that gun ownership is such a fundamental right that it cannot be taken away merely by a judge’s ruling.
The court ruled 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, which was defined as a crime carrying a sentence of greater than six months.
The unanimous Nevada opinion written by Justice Lidia Stiglich stated 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.
NevadansCAN argues that AB291 allows a secret process in which a judge can issue an order for gun seizure from an individual who has not been accused or convicted of violating any law and there is no role for a jury as the state high court deemed necessary.
The lawsuit itself declares, “This 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.”
There are seven legal processes that safeguard due process, the suit states, and this law deprives the accused of five of those: “notice; opportunity to make an oral presentation; means to present evidence; cross-examination and response to evidence; and the right of counsel at critical junctures.”
NevadansCAN’s suit notes that under such Red Flag laws those accused receive notice of the case against them when the police show up to confiscate their firearms. It also points out the accuser need never appear in court but merely submit an affidavit.
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.
An injunction is needed.
A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.