A Nevada state law prohibiting misdemeanor domestic violence offenders from owning firearms is now causing major problems in communities around the state. The Nevada State Supreme Court ruled in September that, because the loss of gun ownership rights is at stake, the misdemeanor domestic violence charge is a “serious offense” that requires the option of a jury trial. These misdemeanors are typically tried in municipal court, and many municipal courthouses aren’t even set up for jury trials. That’s the case in Las Vegas, where the City Council voted this week to create a new misdemeanor crime to prosecute domestic violence offenders that doesn’t require the forfeiture of firearms (and therefore avoids the requirement for a jury trial).
Las Vegas prosecutors have been charging domestic violence defendants with the lesser charge of simple battery to avoid triggering a jury trial. The city law approved Wednesday, called “battery which constitutes domestic violence, will restore all the penalties of the state statute with the exception of the gun provision.
City officials say it’s the best option to protect victims amid a logistical dilemma, but domestic violence prevention and gun control advocacy groups have argued the city is putting government convenience ahead of victim safety.
They have accused the city of trying to illegally circumvent the state statute and of weakening a safety net in a state where domestic violence already routinely ranks high for domestic violence in the U.S.
While the city is using this new misdemeanor crime to continue to prosecute misdemeanor domestic violence crimes, local attorneys say the “workaround” is likely to run into some legal challenges.
John G. Watkins, an attorney with the Pariente Law Firm who worked on the case that spurred the Supreme Court case, said he believes that the city’s attempts to avoid the firearms ban will not work because federal regulations still prohibit those convicted of misdemeanor domestic violence crimes from owning a gun.
And because of that federal regulation, the defendant still should have the right to a jury trial, Watkins said.
John Piro, chief deputy Clark County public defender, said the moves show that municipal governments want to keep those cases in their courts rather than allow the local justice courts to take on the jury trials for which they are more equipped.
“They are bending over backwards to deny people their constitutional right in order to maintain their fine and fee structure,” Piro said. “What they’re doing is putting profit over public safety.”
Is this all about the money for Las Vegas and other communities that are passing similar ordinances? Maybe so, but I’m more interested in how many other states around the country allow for non-jury trials in misdemeanor domestic violence cases. Obviously the Nevada Supreme Court opinion carries no weight beyond the state’s borders, but there may very well be additional legal challenges to similar laws elsewhere around the country filed in the near future.
The state Supreme Court made the right decision, even if it is creating some chaos in municipal courts. The loss of a constitutional right is indeed a matter of serious concern, and I’m glad to see the court unanimously state that when a fundamental right like the right to keep and bear arms is at stake, you should at least be afforded the protections of the 8th Amendment before your 2nd Amendment rights are stripped from you.