Andersen v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Sept. 12, 2019)
At issue is since Nevada limits the right to bear arms for a person who has been convicted of misdemeanor battery constituting domestic violence, is the classification of the offense serious thereby requiring a jury trial.
Andersen was arrested and charged with first-offense battery constituting domestic violence (domestic battery), a misdemeanor pursuant to NRS 200.485(1)(a), and simple battery. Before the municipal court, Andersen made a demand for a jury trial, arguing that a conviction for domestic battery was a serious offense and thus compelled a jury trial. After the municipal court denied the demand for a jury trial, Andersen entered a no contest plea to the domestic battery charge, and the charge of simple battery was dismissed.
On appeal to the district court, Andersen’s sole contention was that he was erroneously denied the right to a jury trial. The district court disagreed and affirmed the conviction. Andersen then filed a writ petition.
The Supreme Court of Nevada determined that the need to clarify its caselaw concerning the right to a jury trial for misdemeanor domestic battery charges in light of legislative amendments, renders district court appellate review an inadequate legal remedy and compels the consideration of Andersen’s petition for a writ of mandamus.
The Court explained that it is well established that the right to a jury trial, as established by the Sixth Amendment of the United States Constitution and Article 1, Section 3 of the Nevada Constitution, does not extend to those offenses categorized as petty, but attaches only to those crimes that are considered serious offenses. See Blanton v. City of N. Las Vegas, 489 U.S. 538, 541 (1989); Duncan v. Louisiana, 391 U.S. 145, 159 (1968); see also Blanton v. N. Las Vegas Mun. Court, 103 Nev. 623, 628-29, 748 P.2d 494, 497 (1987) (“[T]he right to a trial by jury under the Nevada Constitution is coextensive with that guaranteed by the federal constitution.”), affd sub nom. Blanton, 489 U.S. 538. In determining whether a particular offense is petty or serious, the Court must examine objective indications of the seriousness with which society regards the offense, and the best indicator of society’s views is the maximum penalty set by the legislature. United States v. Nachtigal, 507 U.S. 1, 3 (1993). The word “penalty” encompasses both a term of imprisonment as well as other penalties proscribed by statute, but primary emphasis must be placed on the maximum authorized period of incarceration. Blanton, 489 U.S. at 542; see also Nachtigal, 507 U.S. at 3. To that end, the United States Supreme Court has established that an offense with a maximum authorized period of incarceration of six months or less is presumptively petty. Blanton, 489 U.S. at 543. To overcome this presumption, and to demonstrate that an offense rises to the level of seriousness to warrant a jury trial, a defendant must demonstrate that any 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. Id. With this framework in mind, the Court turned to the offense at issue in this matter.
The Court noted that first-offense domestic battery is a misdemeanor crime, with a maximum authorized period of incarceration of six months. NRS 200.485(1)(a)(1). Thus, pursuant to U.S. Supreme Court precedent, there is a presumption that the offense is petty and that the right to a jury trial does not attach. Andersen did not take issue with this presumption, but argued the additional penalties elevate domestic battery to a serious offense.
The Court explained that it previously considered the additional penalties imposed by the offense of first-offense domestic battery and concluded that those penalties did not clearly indicate a determination by the Nevada Legislature that this is a serious offense to which the right to a jury trial attaches. Amezcua v. Eighth Judicial District Court, 130 Nev. 45, 50, 319 P.3d 602 (2014). However, just over one year after its decision in Amezcua, the Legislature amended the penalties associated with a conviction under NRS 200.485(1)(a). Specifically, NRS 202.360—a statute that prohibits the possession or control of firearms by certain persons—was amended to criminalize possession or control of a firearm in this state by a person who has been convicted in this State or any other state of a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921(a)(33). U.S.C. § 921(a)(33)(A) (2012) defines a misdemeanor crime of domestic violence, in part, as a misdemeanor offense under state law that has as an element the use, attempted use, or threatened use of physical or deadly force against the type of victim that places the act in the realm of domestic violence. It is this amendment that distinguished the instant matter from Amezcua.
The Court further explained that in Amezcua, it held that a federal regulation restricting a convicted domestic batterer’s possession of a firearm was not a direct consequence of a Nevada conviction for misdemeanor domestic battery. 130 Nev. at 50, 319 P.3d at 605. In so holding, it relied partly on the United States Supreme Court’s reasoning that the statutory penalties in other States are irrelevant to the question whether a particular legislature deemed a particular offense serious. Nachtigal, 507 U.S. at 4. But now, although not included in the statute proscribing misdemeanor domestic battery, the Nevada Legislature has imposed a limitation on the possession of a firearm in Nevada that automatically and directly flows from a conviction for misdemeanor domestic battery. In the Court’s opinion, this new penalty—a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions—clearly reflected a legislative determination that the offense of misdemeanor domestic battery is a serious one. Blanton, 489 U.S. at 543; see also Pohlabel v. State, 128 Nev. 1, 9-13, 268 P.3d 1264, 1269-72 (2012) (discussing the history of Article 1, Section 11(1) of the Nevada Constitution which provides citizens with the right to keep and bear arms).
The Court explained that unlike other penalties that it concluded were not serious, see, e.g., Blanton, 103 Nev. at 631 & n.7, 748 P.2d at 499 & n.7 (considering a fine in the range of $200 to $1,000, loss of one’s driver’s license for a period of 90 days, and mandatory attendance of an alcohol abuse education course at the defendant’s expense), the right affected here convinced it that the additional penalty was so severe as to categorize the offense as serious, see generally McDonald v. City of Chicago, 561 U.S. 742 (2010) (concluding the Fourteenth Amendment to the United States Constitution makes the Second Amendment fully applicable to the states); Dist. of Columbia v. Heller, 554 U.S. 570 (2008) (concluding the Second Amendment to the United States Constitution confers an individual right to keep and bear arms); see also Pohlabel, 128 Nev. at 9-13, 268 P.3d at 1269-72.
Given that the Legislature had indicated that the offense of misdemeanor domestic battery is serious, the Court determined that one facing the charge is entitled to the right to a jury trial. Therefore, the court granted Anderson’s petition and directed the clerk to issue a writ instructing the district court to vacate its order dismissing Anderson’s appeal.