Loss of Gun Rights Requires a Jury Trial

The Nevada Supreme Court has ruled that crimes that lead to loss of the right to possess a gun require a jury trial.

In Anderson v. Eighth Judicial District Court, defendant Christopher Anderson was accused of misdemeanor domestic battery. Anderson argued that he was being denied his Sixth Amendment right to a jury by having his case decided by a judge instead of by a jury of his peers.

While the Sixth Amendment to the United States Constitution guarantees the right to a trial by an impartial jury, the United States Supreme Court has routinely held that this right does not apply to petty criminal offenses. Generally, if a state criminal statute authorizes a penalty of six months or less in jail, the offense will be considered petty. In order to overcome this presumption of pettiness, a defendant must demonstrate that “the additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a serious one.”

In Nevada, first-offense domestic battery carries a maximum incarceration period of six months and is therefore considered a petty offense. However, in 2015 Nevada lawmakers introduced a state criminal statute requiring those convicted of domestic battery to turn over their firearms. Failure to do so can lead to a felony conviction and an incarceration period of up to six years.

A unanimous Nevada Supreme Court decided that this loss of gun rights under both the Untied States and Nevada Constitutions makes the crime of misdemeanor domestic battery a serious one, regardless of the period of incarceration imposed on the defendant. Anderson successfully argued that although presumptively considered a petty offense, the additional statutory penalty of the loss of Second Amendment rights was so severe that it clearly reflected Nevada’s legislative determination that misdemeanor domestic battery be considered a serious offense. The court noted that other penalties such as mandatory alcohol abuse education courses, fines ranging from $200 to $1,000, and the loss of one’s driver’s license for a period of 90 days do not lead to a petty offense being considered serious.

In Pennsylvania there are no crimes that do not have a right to a jury trial but lead to loss of gun rights. Even the 3 DUI rule, which prohibits gun ownership, requires that the 3 DUI’s be within 5 years, which would result in a grading that would guarantee the right to a jury trial. Thus, this decision is not likely to have a major impact on criminal trials in Pennsylvania. However, the logic of this decision can be extended to trials in Protection From Abuse cases and 302 mental health hearings, which can result in the loss of firearms rights, and which currently do not provide for the right to a jury trial in Pennsylvania. It will be interesting to see if such a challenge is made and the decision from Pennsylvania courts.