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Explainer: Battering Hand

The law of unintended consequences besets a plan to keep guns away from domestic abusers

The 2015 Nevada Legislature produced a law barring domestic violence convicts from owning firearms. It took three years for the first case testing the new law to make its way to the state Supreme Court, and its ruling, this September, was a doozy. In a nutshell, the court said that taking away a batterer’s weapon infringes on his or her constitutional rights, meaning it’s a “serious offense” entitling the offender to a jury trial.

The problem with this is, in Las Vegas, where a large majority of the state’s domestic violence cases are tried, those decisions are made by judges, not juries. Same goes in many other jurisdictions.

“We don’t even have jury boxes in municipal courtrooms,” says Las Vegas City Attorney Brad Jerbic, “let alone enough judges or attorneys to try all those cases” before a jury. In other words, Las Vegas has no legal infrastructure to handle this.

Around 5,000 domestic violence cases passed through Las Vegas Municipal Court in 2018. Jerbic predicted that the addition of jury duty, selection, instruction, summation, and deliberation would reduce the number of possible trials per day from five to one, creating an enormous backlog that would add up to victims waiting years for their cases to be heard.

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“That would result in more harm to victims,” he says, “because the most dangerous time for a victim is between (the batterer’s) arrest and trial.”

Las Vegas’ initial reaction was to stop prosecuting domestic violence as a misdemeanor, and instead prosecute it as simple battery. The charge of simple battery, however, carried no mandatory counseling requirement for the offender, and no escalation clause — a mechanism for making a batterer’s third offense a felony. Victim’s advocates were outraged.

In mid-October, the city scrambled to pass an ordinance creating a charge of battery constituting domestic violence, which would include, in sentencing, the counseling requirement and escalation clause. At press time, the fix stood, but most observers agree it’s vulnerable to legal challenge, given the 2015 law on domestic violence and handguns, coupled with the Supreme Court decision about Second Amendment rights and jury trials.

The part about batterers owning guns is precisely why victim advocates are unhappy with the city’s fix, too. Noting that domestic violence victims are five times more likely to become homicide victims when there’s a gun in the home, they say the entire system for charging and prosecuting the crime needs to be rethought so that convictions include both counseling and escalation, as well as firearm confiscation — ostensibly, even if that means trying them by jury.

“This is a wake-up call for the state, that we cannot continue to incrementally change the way that we’re doing this,” says Safe Nest CEO Liz Ortenburger, noting that Nevada is the second-most-lethal state for domestic violence victims. “We have to look at massive, system-wide change, and actually do something that is going to, for generations, change the face of how domestic violence is handled in Nevada.”

She and others are hoping for a special legislative session to sort the issue out. In the meantime, law enforcement agencies say they’ll continue to handle the crime the way they always have, with an emphasis on keeping victims safe.

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