A Nevada state senator has announced she will propose a bill in the current legislative session that will prohibit any person convicted of a domestic violence offense from possessing a firearm in all related protective orders.
Sen. Debbie Smith, of Sparks, has filed Senate Bill 187. The proposed law would mandate that judges issue injunctions prohibiting a person from possessing or purchasing firearms if convicted of a domestic violence offense. The session ends June 1.
An offense is considered domestic violence under Nevada law if it is one of several crimes, including assault, battery and stalking, when the victim is the accused’s current or former spouse, is related to the accused by blood or marriage, lives with or has lived with the accused, is in or was in a dating relationship with the accused, has a child with the accused or is the accused’s child.
Currently, state law allows a judge considering an injunction for domestic violence to prohibit a person from possessing or purchasing firearms. Nevada Revised Statutes 33.031 says a judge “may” issue and order against a person convicted of a domestic violence offense:
- Requiring that he or she surrender, sell and/or transfer any firearms he or she currently owns; and
- Prohibiting that person from possessing any firearms or having any firearms under his or her control.
Currently violating such an order is a gross misdemeanor, under the proposed bill a violation would be a category B felony with a sentence of 1 to 6 years in prison.
Under Federal law any person convicted of a domestic violence conviction is prohibited from owning, possessing or using a weapon. The Federal law effectively prohibits a person from purchasing a new weapon; however there are little provisions on how to deal with those weapons that you already own. It is illegal, under Federal law, to own a weapon after you have been convicted of domestic violence but rarely does it get enforced regarding weapons you already own. The proposed Senate Bill 187 is Nevada’s way of taking the Federal law further.
Under current state law, the judge may examine the person’s history of domestic violence, whether a firearm was used to injure or harass the victim or a child, and whether the person had used a firearm in the commission or attempted commission of a crime. Using these factors, the judge may make a decision to issues an injunction including the prohibitions on firearms.
This bill, as Smith has described it, will take that decision away from judges. For anyone convicted of a domestic violence offense, the judge would have no option but to issue an injunction containing the firearm prohibitions. This would mean that the Judge would order that all current firearms be removed from the home of the accused, even before he or she has been found guilty in a Court of law. Other restrictions typically in the protective orders, such as requiring the subject of the order away from the victim’s home or prohibiting contact, remain according to the judge’s discretion.
Mandatory punishments, including mandatory minimum sentences, tend to be bad public policy. First and foremost, an essential tenet of criminal justice is that the punishment should fit the crime. There are many variations and circumstances at play in a criminal accusation. Having a one-size-fits-all solution is an injustice.
Additionally, mandatory punishments take away the ability of defense lawyers to negotiate a plea bargain. Plea bargains are important to the criminal justice system because they make it more efficient. With no incentives to take a plea bargain, every case might as well go to trial, clogging up the courts.
Laws that may sound good to some to solve a perceived problem, often have unintended consequences that are much more impactful than the original bill. Currently Nevada does not allow for jury trials in misdemeanor domestic violence cases. Despite many attorneys efforts to have jury trials in these impactful cases the United States Supreme Court has struck that right down. However, if SB 187 passes it would establish a State law that would prohibit a person’s right to bear arms and therefore meet the standard necessary to determine that due process is required before you take away a person’s constitutional rights.
Whatever your position on this bill may be, it is quite clear that if it passes it would have an impact on the citizens of Nevada and their rights.