October 17, 2019 - 9:00 pm
Las Vegas officials are taking a considerable risk with their decision to ignore state law regarding firearms and domestic violence.
The City Council voted 6-1 on Wednesday not to enforce a 2015 Nevada statute that requires those convicted of misdemeanor domestic violence to give up their guns. The vote comes in response to a recent state Supreme Court decision holding that defendants facing such punishment have a right to a jury trial.
Misdemeanor proceedings are held in municipal courts as bench trials without juries. But the justices unanimously ruled in September that because the sentence for those found guilty of misdemeanor domestic violence now includes a loss of Second Amendment rights, the charge is serious enough to merit a jury trial at a defendant’s request.
The decision makes eminent sense. Defendants facing the loss of a constitutional right deserve the full protections afforded under the Sixth Amendment.
But officials in Las Vegas and other Southern Nevada municipalities argue they don’t have the resources to empanel juries for the thousands of defendants charged each year with misdemeanor domestic violence. In addition, state law precludes jury trials in municipal courts.
Since the court decision, city prosecutors have defaulted to the lesser charge of simple battery to avoid potential jury trials. Under the new policy, prosecutors will again bring misdemeanor domestic violence charges, but those who are convicted will not lose their firearms. City officials called it a “compromise” necessary to protect victims and ensure the proper prosecution of domestic violence perpetrators.
But the “compromise” directly conflicts with state law. No doubt, local governments face a conundrum here, but simply pretending a state law doesn’t exist is unlikely to be a successful legal strategy in the long run and could be rife with unintended consequences. It could also lead to the expensive prospect of the city being forced to re-adjudicate the cases of those convicted under the dubious new city guidelines.
Ultimately, this issue will require a legislative solution. That could entail either financially and legally empowering municipal courts to hold jury trials or moving misdemeanor cases to Justice Court. A third option is to simply repeal the firearm ban provision, but that presents significant political hurdles.
City officials hope the new approach will buy them time until the 2021 legislative session. In fact, it’s likely to buy them more headaches and unlikely to survive the inevitable legal challenges.