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Criminal Justice | Legislature

Lawsuit filed to block Nevada's 'red flag' law

Various handguns as seen on display inside Discount Firearms & Ammo in Las Vegas on Wednesday, Aug. 19, 2018. (Daniel Clark/The Nevada Independent)

A nonprofit conservative group has filed a lawsuit seeking to block implementation of Nevada’s newly adopted “red flag” law before it takes effect next year.

The lawsuit was filed Thursday in Carson City District Court by NevadansCAN, a self-described “non-profit citizens action network” based in Henderson and led by Mary Rooney, a former Republican state Assembly candidate and a conservative activist. Attorneys representing the group are Alan Lefebvre and William Schuller of the Kolesar & Leatham law firm.

In a news release, Rooney and fellow plaintiff on the lawsuit Julie Chen Hereford called the law — which allows law enforcement and family members to petition a court to temporarily seize a person’s firearms — a “government power grab.” In addition to due process concerns, they also cited the Nevada Supreme Court’s recent decision to require jury trials in misdemeanor domestic violence cases (made because of state laws requiring gun confiscation in those circumstances) meant that the “red flag” law was unconstitutional because the decision to seize a person’s firearms came from an individual judge and not a jury.

“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,” Rooney said in a statement. “Due process never enters into it.”   

The lawsuit is targeting a section of a wide-ranging firearms bill (AB291) approved during the 2019 legislative session that allows family members and law enforcement to petition a court to temporarily seize a person’s firearms for up to a year if they display signs of high-risk behavior. A total of 17 states and Washington D.C. have implemented some kind of a “red flag law,” according to gun safety group Everytown for Gun Safety.  

Under the law, “extreme risk protection orders” to take away firearms can be issued if an individual makes threats or actual acts of violence to themselves or others, issues threats, engages in behavior a police officer determines to be a “serious and imminent threat,” or has engaged in high-risk behavior while possessing or recently purchasing a firearm. 

The bill requires a hearing to be held within seven days of the initial order being issued, allowing judges to issue an extended order valid up to a year prohibiting an individual from possessing firearms if they determine gun ownership could result in injury to themselves and others and if other, less restrictive options have been exhausted or not effective. 

The “red flag” provision was added late in the legislative session, after a substantial amendment removed sections allowing for local governments to “pre-empt” and pass stricter gun laws than those allowed by the state in the face of concerns by unions that it could result in a major firearms trade conference leaving the state. 

The amended version of the bill, which also banned firearm modifications similar to bump stocks and added penalties for negligent storage of firearms, was staunchly opposed by Republicans and passed near-party line votes in the Senate and Assembly before being signed into law by Gov. Steve Sisolak.

The lawsuit alleges that the driving force behind the law is pro-gun control “out-of-state monied interests” including the Giffords Law Center to Prevent Gun Violence and Michael Bloomberg-backed Everytown for Gun Safety, which it claims supports gun control as “‘something’ to address the symptoms of a society degraded by drugs, and the disintegration of the family unit, plagued by ‘fatherless homes’” as well as “social and moral decline” and the “mass media’s control of the ‘news.’”

The lawsuit criticizes the “swift and stealth legislative processes” that led to passage of the final bill, and claims that the actual process of issuing an extreme risk protective order is fraught with due process shortfalls.

“This legislation lacks sufficient due process protections and utilizes low evidentiary standards falling well below the norm for impairment/curtailment of fundamental civil constitutional rights,” the lawsuit states. “AB 291 does not survive any ‘tier of scrutiny’ imposed by judicial review, ignores existing laws to combat the gun use and ownership by those not entitled, and chooses the most drastic means to accomplish its ends, by trampling too heavily upon the right the ‘keep and bear arms for security and protection.’”

The lawsuit also references the Nevada Supreme Court’s recent decision in Anderson v. Eighth Judicial District Court to require jury trials for misdemeanor domestic violence cases — a decision made because of laws prohibiting gun ownership for those convicted of such crimes — meant that the decision to take away a person’s guns should be up to a jury and not a single judge.

“Red flagging, according to Anderson, cannot be used to deprive gun owners of their right to keep and bear arms unless a jury is empaneled to be the fact decider, ousting the judicial officer’s role in each ‘red flag’ process,” it states.

A spokesman for Gov. Sisolak, who is named in the lawsuit, did not immediately return a request for comment.

Red Flag Law Injuction Complaint.docx by Riley Snyder on Scribd

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