NevadansCAN Files Motion for Summary Judgment to Stop Enactment of the Red Flag Law

Carson City, NV (January 2, 2020):  On December 24, 2019, NevadansCAN, a citizens action organization, filed a Motion for Summary Judgment seeking a court ruling that AB291’s Red Flag Law provision violates the Second Amendment and legal precedent in Nevada by removing a citizen’s constitutional right to keep and bear arms without a criminal conviction and a jury trial.  NevadansCAN filed an injunction complaint with the court against the new law on December 4.

In September, the Nevada Supreme Court held in ANDERSEN VS. DISTRICT COURT that the deprivation of Second Amendment rights requires that a jury decide whether to impose such a punishment, in accordance with the Sixth Amendment of the United States Constitution (and similar protections in the Nevada Constitution). The procedures authorized by AB 291 to deprive Nevadans of their Second Amendment rights are contrary to the Court’s finding of constitutional invalidity.  It imposes the penal discipline of confiscation of a person’s firearms based on hearsay. The filing asks the court to enter an injunction to stop enforcement of the law, upon its determination that ANDERSEN is directly applicable, and mandates a finding that the red flag law, as passed through the legislature, is invalid.

The red flag law model was hastily inserted in AB291 during the last days of the 2019 Legislature. Plaintiffs Mary Rooney and Julie Chen Hereford argue in their motion that the red flag law is a criminal, not a civil remedy. Hereford and Rooney argue in the suit that a “crime” is the coupling of a legislatively prohibited act with “penal discipline.” Hereford stated, “The legislature rushed through the bill and must not have understood that it was ripping up the entire library of civil rights found in the Bill of Rights, in the fervor to grab guns. Persons accused of crimes in the United States have the right to defend themselves and the right to due process of law.”

Added Rooney, “When a ‘civil’ proceeding adds a punishment as if one is a criminal without the benefit of a jury trial, it’s a criminal matter without other constitutional protections.”

The penal discipline imposed by the red flag law, the suit argues, is an abridgment of the constitutional rights of a person against whom a red flag order is entered because it imposes criminal penalties.  The person whose guns are confiscated has not been convicted – or even accused – of a crime, but has only been accused of behavior that the accuser believes makes that person a danger to himself or others.

Nick Alfonsetti, who chairs NevadansCAN’s Second Amendment Action Committee, commented, “If I wanted to live under oppressive gun control, I wouldn’t have left New York 14 years ago. I thought I left socialist Bloomberg in the east.”  Former NYC mayor Michael Bloomberg funds Everytown For Gun Safety lobbying groups nationally, which have spent about $30 million in Nevada in the last five years to promote legislative gun control in the state.