Supreme Court of the United States

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1 No. ================================================================ In The Supreme Court of the United States LUANIE LAMBEY, v. Petitioner, THE SUPREME COURT OF NEVADA and THE STATE OF NEVADA as Real Parties in Interest, Respondents. On Petition For Writ Of Certiorari To The Nevada Supreme Court PETITION FOR WRIT OF CERTIORARI MICHAEL D. PARIENTE THE PARIENTE LAW FIRM, P.C Howard Hughes Parkway Suite 615 Las Vegas, Nevada (702) Counsel for Petitioner ================================================================ COCKLE LEGAL BRIEFS (800)

2 i QUESTION PRESENTED Is a conviction for battery constituting domestic violence petty where a defendant so convicted is statutorily presumed to be an unfit parent, faces removal from the United States if not a citizen, and loses his Second Amendment right to possess a firearm; and did the Nevada Supreme Court err when it held that a conviction for battery constituting domestic violence was petty and thus denied Mr. Lambey s Petition for Writ of Mandamus directing the lower court to grant him a jury trial?

3 ii PARTIES TO THE PROCEEDING The Petitioner is Luanie Lambey. The Respondents are Governor Brian Sandoval, in his official capacity as Governor of the State of Nevada; Bradford Jerbic, in his capacity as Las Vegas City Attorney; and Doug Gillespie, in his capacity as Clark County Sheriff.

4 iii TABLE OF CONTENTS Page QUESTION PRESENTED... i PARTIES TO THE PROCEEDING... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... iv OPINIONS BELOW... 1 JURISDICTION... 1 CONSTITUTIONAL AND STATUTORY PROVI- SIONS... 1 STATEMENT OF THE CASE... 3 REASONS FOR GRANTING PETITION... 4 CONCLUSION APPENDIX Appendix A: Opinion/Judgment of the Nevada Supreme Court (February 13, 2013)... App. 1 Appendix B: Judgment of the Eighth Judicial District Court for the State of Nevada (January 2, 2013)... App. 6 Appendix C: Minute Order of the Las Vegas Municipal Court denying request for jury trial (October 28, 2012)... App. 9

5 iv TABLE OF AUTHORITIES Page FEDERAL CASES Blanton v. N. Las Vegas, 489 U.S. 538 (1989)... passim Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)... 9 District of Columbia v. Heller, 554 U.S. 570 (2008)... 14, 15 Mathews v. Eldridge, 424 U.S. 319 (1976)... 9 McDonald v. City of Chicago, 130 S. Ct (2010)... 14, 15, 20, 25 Miranda v. Clark County, 319 F.3d 465 (9th Cir. 2003) Morrissey v. Brewer, 408 U.S. 471 (1972)... 9 Padilla v. Kentucky, 130 S. Ct (2010) Richter v. Fairbanks, 903 F.2d 1202 (8th Cir. 1990) Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct (2000)... 8 U.S. v. Chavez, 204 F.3d 1305 (11th Cir. 2000) U.S. v. Jenkins, 780 F.2d 472 (4th Cir. 1986) U.S. v. Smith, 151 F. Supp. 2d 1316 (N.D. Okla. 2001)... 16, 21 Washington v. Glucksberg, 521 U.S. 702 (1997)... 8

6 v TABLE OF AUTHORITIES Continued Page STATE CASES Cook v. City of Buena Park, 126 Cal. App. 4th 1 (2005)... 9 Fushek v. State, 183 P.3d 536 (Ariz. 2008)... 18, 19 Rico v. Rodriguez, 121 Nev. 695 (2005)... 8 Russo v. Gardner, 114 Nev. 283 (1998) State v. Smith, 99 Nev. 806, 672 P.2d 631 (1983) Vincent L.G. v. State Div. of Child & Family Servs. (In re D.R.H.), 120 Nev. 422 (2004)... 8 CONSTITUTION U.S. Const. amend. II... passim U.S. Const. amend. VI... 1, 16, 21 U.S. Const. amend. XIV... 2, 8, 14, 25 FEDERAL STATUTES 18 U.S.C. 921(a)(33)(B)(i)(II)... 15, U.S.C. 922(g)... 16, U.S.C U.S.C. 1257(a) U.S.C. 1651(a)... 2 INA 237 (8 U.S.C. 1227) (a)(e)(i)... 21

7 vi TABLE OF AUTHORITIES Continued Page RULES Sup. Ct. R. 13(1)... 1 STATE STATUTES NRS , 6, 8, 25 NRS NRS 125C , 10, 12, 26 NRS (1) NRS NRS NRS (2)... 2, 25 NRS (7) NRS (7)(b)(2) NRS (7)(c) NRS , 25 NRS , 18, 21, 25 NRS (1)(a) NRS (1)(b) NRS (1)(c) NRS (3)(b) NRS , 20, 26 NRS

8 vii TABLE OF AUTHORITIES Continued Page NRS (g) NRS 432B , 10, 12, 26 OTHER AUTHORITIES Hearing on A.B. 394 Before S. Judiciary Comm., 71st Sess. (April 19, 2001), available at search.leg.state.nv.us/isysquery/bd7bcb59-9e20-4c9c-943e-edab5595f301/7/doc/1075.html Hearing on S.B. 299 Before S. Judiciary Comm., 68th Sess. (March 28, 1995), available at leg.state.nv.us/session/68th1995/minutes/sjd 328.txt Hearing on S.D. 299 Before S. Judiciary Sub- Comm., 68th Sess. (April 25, 1995), available at SJD425SB.txt... 20

9 1 PETITION FOR WRIT OF CERTIORARI OPINIONS BELOW The decision of the Nevada Supreme Court filed September 18, 2013, denying Luanie Lambey s (Petitioner) petition for writ of mandamus, is unpublished. Appendix A (hereinafter App.). The Eighth Judicial District Court order denying Lambey s petition for writ of mandamus, filed July 16, 2013, is unpublished. App. B. The Las Vegas Municipal Court s minute order denying Petitioner s demand for a jury trial, filed May 20, 2013, is unpublished. App. C JURISDICTION On February 13, 2013, the Nevada Supreme Court filed its order denying Mr. Lambey s petition for writ of mandamus brought pursuant to NRS This Court has jurisdiction pursuant to 28 U.S.C. 1257(a). See also, Sup. Ct. R. 13(1) (mandating a petition for writ of certiorari be filed within ninety days of entry of judgment) CONSTITUTIONAL AND STATUTORY PROVISIONS The Sixth Amendment to the United States Constitution provides in pertinent part: In all criminal prosecutions, the accused shall enjoy the right... to a speedy and public

10 2 trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously, ascertained by law... and to have the assistance of counsel for his defense. The Fourteenth Amendment to the United States Constitution provides in pertinent part: No State shall... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. This petition involves Title 28 United States Code Section 1651 in pertinent part: (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction. Nevada Rev. Stat (2) states: In a Justice Court, a case must be tried by jury only if the defendant so demands in writing not less than 30 days before trial. Except as otherwise provided in NRS and 4.400, if a case is tried by jury, a reporter

11 3 must be present who is a certified court reporter and shall report the trial STATEMENT OF THE CASE This case challenges the denial of the right to a jury trial for a misdemeanor charge of domestic violence in violation of NRS ; ; Petitioner contends that a conviction for domestic violence is a serious offense because a conviction of domestic violence carries with it serious consequences. Petitioner, a member of the United States Armed Forces, faces the loss of his Second Amendment right to possess a firearm and the presumption that he will be deemed to be an unfit parent in Clark County Family Court. Even though the maximum term of imprisonment is six months, Petitioner argues the consequences he will suffer rebut the presumption that a conviction for domestic violence is petty. Finally, Petitioner argues that domestic violence is a serious conviction because conviction for this crime results in removal or deportation from the United States. 1. On April 26, 2012, Petitioner was arraigned on one misdemeanor count of Battery Constituting Domestic Violence and entered a plea of not guilty. 2. On March 12, 2013, Petitioner filed a demand for a jury trial arguing that the consequences of a conviction of domestic violence make the offense serious and not petty.

12 4 3. On May 21, 2013, Las Vegas Municipal Court Judge Cynthia Leung denied Petitioner s demand for a jury trial finding that the consequences of a domestic violence conviction are petty and do not warrant a jury trial. 4. On July 16, 2013, Eighth Judicial District Court Valorie Vega denied Petitioner s request for the issuance of a writ of mandamus concluding Battery Constituting Domestic Violence is petty. 5. On September 18, 2013, the Nevada Supreme Court denied Petitioner s request for the issuance of a writ of mandamus holding that Battery Constituting Domestic Violence is petty and does not carry with it the right to a jury trial. Petitioner has standing to challenge the Nevada Supreme Court s denial of his petition for writ of mandamus because he is directly affected by the Nevada Supreme Court s decision. Petitioner is the defendant and is currently being prosecuted for violating Nevada s domestic violence statute REASONS FOR GRANTING PETITION Review is necessary to establish if the loss of fundamental rights due to a conviction for domestic violence is a serious offense entitling a defendant to a right to a jury trial. A Nevada conviction for domestic violence creates a presumption that the person so convicted is an unfit

13 5 parent. This consequence makes domestic violence a serious offense entitling Petitioner to a jury trial. A person convicted of domestic violence in Nevada faces serious consequences in family law courts. Specifically, a person so convicted faces a presumption that he or she is an unfit parent. 1 1 NRS 432B.157 Presumption concerning custody when court determines that parent or other person seeking custody of child is perpetrator of domestic violence. 1. Except as otherwise provided in NRS 125C.210 and 432B.153, a determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking custody of a child has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child creates a rebuttable presumption that it is not in the best interest of the child for the perpetrator of the domestic violence to have custody of the child. Upon making such a determination, the court shall set forth: (a) Findings of fact that support the determination that one or more acts of domestic violence occurred; and (b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other victim of domestic violence who resided with the child. 2. If after an evidentiary hearing held pursuant to subsection 1 the court determines that more than one party has engaged in acts of domestic violence, it shall, if possible, determine which person was the primary physical aggressor. In determining which party was the primary physical aggressor for the purposes of this section, the court shall consider: (a) All prior acts of domestic violence involving any of the parties; (Continued on following page)

14 6 (b) The relative severity of the injuries, if any, inflicted upon the persons involved in those prior acts of domestic violence; (c) The likelihood of future injury; (d) Whether, during the prior acts, one of the parties acted in self-defense; and (e) Any other factors that the court deems relevant to the determination. In such a case, if it is not possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 1 applies to each of the parties. If it is possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 1 applies only to the party determined by the court to be the primary physical aggressor. 3. A court, agency, institution or other person who places a child in protective custody shall not release a child to the custody of a person who a court has determined pursuant to subsection 1 has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child unless: (a) A court determines that it is in the best interest of the child for the perpetrator of the domestic violence to have custody of the child; or (b) Pursuant to the provisions of subsection 2, the presumption created pursuant to subsection 1 does not apply to the person to whom the court releases the child. 4. As used in this section, domestic violence means the commission of any act described in NRS NRS 125C.230 Presumption concerning custody when court determines that parent or other person seeking custody of child is perpetrator of domestic violence. 1. Except as otherwise provided in NRS 125C.210 and 125C.220, a determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking custody of a child has engaged (Continued on following page)

15 7 in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child creates a rebuttable presumption that sole or joint custody of the child by the perpetrator of the domestic violence is not in the best interest of the child. Upon making such a determination, the court shall set forth: (a) Findings of fact that support the determination that one or more acts of domestic violence occurred; and (b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other victim of domestic violence who resided with the child. 2. If after an evidentiary hearing held pursuant to subsection 1 the court determines that more than one party has engaged in acts of domestic violence, it shall, if possible, determine which person was the primary physical aggressor. In determining which party was the primary physical aggressor for the purposes of this section, the court shall consider: (a) All prior acts of domestic violence involving any of the parties; (b) The relative severity of the injuries, if any, inflicted upon the persons involved in those prior acts of domestic violence; (c) The likelihood of future injury; (d) Whether, during the prior acts, one of the parties acted in self-defense; and (e) Any other factors that the court deems relevant to the determination. In such a case, if it is not possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 1 applies to each of the parties. If it is possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 1 applies only to the party determined by the court to be the primary physical aggressor. (Continued on following page)

16 8 Petitioner has a substantive right to be an active father in raising his 5-year-old daughter. The complaining witness against Petitioner Lambey is the mother of their 5-year-old daughter. A parent s interest in raising his or her child is a fundamental right. Parental termination proceedings implicate this fundamental right. We analyze substantive due process challenges to statutes impinging on fundamental constitutional rights under a strict scrutiny standard. Vincent L.G. v. State Div. of Child & Family Servs. (In re D.R.H.), 120 Nev. 422, (Nev. 2004). Embedded within the Fourteenth Amendment is a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests. The United States Supreme Court has recognized several fundamental interests including the interest of parents in the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 65, 147 L. Ed. 2d 49, 120 S. Ct (2000) (plurality opinion) (quoting Washington v. Glucksberg, 521 U.S. 702, L. Ed. 2d 772, 117 S. Ct. 2258, 117 S. Ct (1997); Rico v. Rodriguez, 121 Nev. 695, 704 (Nev. 2005). 3. As used in this section, domestic violence means the commission of any act described in NRS

17 9 Because Petitioner s substantive right to be a father and raise his child is threatened by a domestic violence conviction, the Court must afford him a jury trial consistent with his procedural due process rights: [O]nce it is determined that the Due Process Clause applies, the question remains what process is due. [Citation.] (Loudermill, supra, 470 U.S. at p. 541.) [D]ue process is flexible and calls for such procedural protections as the particular situation demands. (Morrissey v. Brewer (1972) 408 U.S. 471, 481 [33 L. Ed. 2d 484, 92 S. Ct. 2593].) [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (Mathews v. Eldridge (1976) 424 U.S. 319, 335 [47 L. Ed. 2d 18, 96 S. Ct. 893].) Cook v. City of Buena Park, 126 Cal. App. 4th 1, 6 (Cal. App. 4th Dist. 2005). Applying the first prong of the Mathews test to Petitioner s case, the private interest that will be affected is the right of Petitioner to raise children. The second prong is the risk of an erroneous deprivation

18 10 caused by a conviction for domestic violence. This criminal conviction creates the presumption that Petitioner is an unfit parent under NRS 432B.157 and NRS 125C.230. Third, the additional protection of a six-person jury trial to hold the City to its burden of proving its case beyond a reasonable doubt would help eliminate the risk that Petitioner does not face an erroneous deprivation because the City must convince six people, instead of one Municipal Court Judge. Finally, the City s interest in fiscal and administrative burdens would be proportionately no greater than those incurred by the overwhelming majority of states that provide jury trials for misdemeanors. In conclusion, a criminal conviction for domestic violence would adversely affect Petitioner s fundamental rights to raise his daughter. The gravity of the consequences for him makes this a serious offense requiring the procedural protections of a jury trial. Indeed, the Nevada Legislature deems domestic violence so serious an offense that it created this rebuttable presumption that persons convicted of domestic violence are unfit parents and therefore not deserving of the right to see their children. 2 The fact 2 Even before a conviction, the Nevada Legislature treats domestic violence as a serious offense. First, per NRS (7), a person arrested for domestic violence faces a mandatory 12-hour hold before release from incarceration. The mandatory minimum bail requirements for alleged (and as yet unconvicted) domestic battery arrestees increases from $3,000 to $5,000 for alleged second offenders and to $15,000 for alleged third offenders. See NRS (7). The enhanced bail for domestic battery arrestees (Continued on following page)

19 11 that the Nevada Legislature has passed this law to make it harder for persons convicted of domestic violence to see and raise their children indicates that it deems the offense serious in its attempt to protect children and families affected by domestic violence. The loss of the right of an accused to raise his or her own child is a substantial burden on the person convicted of domestic violence. It is for these reasons that the offense is serious. Had the Nevada Legislature not deemed domestic violence a serious offense, it would have never passed such a law creating a with alleged prior convictions has no time limitation on the age of the alleged prior convictions per NRS (7)(b)(2) and (c). This contrasts with the enhanced penalties for multiple domestic violence convictions under NRS (1)(b) and (c) and (3)(b). Enhanced bail for domestic violence arrestees is harsher than for suspects arrested for any other misdemeanors. Enhanced bail for domestic violence charges do not require that the prior offense be committed within seven years. All other offenses, such as DUI, which have enhanced bail, apply to defendants with prior offenses within the immediately preceding seven years only. A defendant arrested for Battery Constituting Domestic Violence whom the arresting police believe has two prior convictions from 10 or more years ago will be held on $15,000 bail although it is only a misdemeanor charge with a minimum two-day jail sentence. See NRS (1)(a). Unlike other misdemeanors, arrest is mandatory for a defendant suspected of domestic battery within 24 hours of the suspected offense. See NRS (1). In all other misdemeanor cases, the peace officer has discretion to issue a citation instead of arresting the suspect. See NRS and NRS

20 12 presumption that a person so convicted of domestic violence is presumed an unfit parent. 3 The automatic rebuttable presumption created upon conviction of being an unfit parent is a penalty. The relevant matter is whether the rebuttable presumptions that NRS 432B.157 and 125C.230 that automatically apply are illustrative of legislative intent of seriousness. These statutes provide a person convicted of domestic violence now bears the burden of proving to the Court by clear and convincing evidence that he or she is not an unfit parent. The difficulty of convincing a family law court that the presumption of being an unfit parent due to a conviction for domestic violence is fairly obvious. For example, 3 In its effort to remain one of the only states that prohibits jury trials for domestic violence charges, Petitioner expects the City will pin its hopes on Blanton footnote 8, which reads as follows: In performing this analysis, only penalties resulting from state action, e.g., those mandated by statute or regulation, should be considered. See Note, The Federal Constitutional Right to Trial by Jury for the Offense of Driving While Intoxicated, 73 Minn. L. Rev. 122, (1988) (nonstatutory consequences of a conviction are speculative in nature, because courts cannot determine with any consistency when and if they will occur, especially in the context of society s continually shifting moral values ). Blanton v. N. Las Vegas, 489 U.S. 538, 543 n.8 (1989). Petitioner argues that NRS 432B.157 and NRS 125C.230 are precisely the penalties passed by the Nevada Legislature and signed in to law by the Governor addressed in the above Blanton footnote.

21 13 Russo v. Gardner held that since Gardner was criminally convicted of domestic violence, by definition it follows that the clear and convincing standard was met for a finding of domestic violence under NRS (5), thereby creating a rebuttable presumption. Russo v. Gardner, 114 Nev. 283, 290 (1998). A domestic violence conviction leads to the automatic penalty of having to rebut a presumption in every family law matter henceforth. Such a thorough intrusion into one s fundamental rights to raise one s children reflect the severity of the offense. Perhaps the best demonstration of the seriousness of this penalty comes from referring to a question asked by this Honorable Court during Oral Argument in Blanton: specifically, was the punishment of having to perform community service in an embarrassing outfit even worse than six months in jail.... They d rather go to jail for six months than wear this for 48 hours? Transcript of Oral Argument at 3, Blanton, 489 U.S. 538, available at Although counsel for Petitioner in Blanton struggled to answer in the affirmative, here, Petitioner Lambey firmly believes that, if asked the same question, the vast majority of people would answer that losing the right to raise one s children is worse than six-months in jail, and if given the choice, Petitioner would choose a jail sentence of six months instead of permanently losing his right to raise his own 5-year-old daughter.

22 14 The loss of the right to possess a firearm makes a conviction for Battery Constituting Domestic Violence a serious offense. The Court held that the right to possess a firearm for self-defense is a fundamental right and cannot be abridged by the State. Specifically, the Court in McDonald v. City of Chicago, 130 S. Ct (2010) held that the Second Amendment is a fundamental right that is fully applicable to the States through the Fourteenth Amendment. McDonald further holds: Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is the central component of the Second Amendment right. 554 U.S., at, 128 S. Ct. 2783, 171 L. Ed. 2d, at 662; see also id., at, 128 S. Ct. 2783, 171 L. Ed. 2d, at 679 (stating that the inherent right of self-defense has been central to the Second Amendment right ). Explaining that the need for defense of self, family, and property is most acute in the home, ibid., we found that this right applies to handguns because they are the most preferred firearm in the nation to keep and use for protection of one s home and family, id., at, 128 S. Ct. 2783, 171 L. Ed. 2d, at 679 (some internal quotation marks omitted); see also id., at, 128 S. Ct. 2783, 171 L. Ed. 2d, at 679 (noting that handguns are overwhelmingly chosen by American society for [the] lawful purpose of self-defense); id., at, 128 S. Ct. 2783, 171 L. Ed. 2d, at 680

23 15 ( [T]he American people have considered the handgun to be the quintessential self-defense weapon ). Thus, we concluded, citizens must be permitted to use [handguns] for the core lawful purpose of self-defense. Id., at, 128 S. Ct. 2783, 171 L. Ed. 2d, at 680. McDonald v. Chicago, 130 S. Ct (U.S. 2010). Other courts have recognized the right to a jury trial in cases where a defendant faces a lifetime prohibition of possession of a firearm as a consequence of a misdemeanor assault conviction not punishable by more than six months: In the present case the question is whether the lifetime prohibition of possession of a firearm in addition to 6 months imprisonment makes the offense serious under Blanton and therefore entitles Defendant to a jury trial. Citing USA v. Chavez, 204 F.3d 1305 (11th Cir. 2000), the Government argues that the lifetime prohibition on firearm possession does not make the penalty serious. The undersigned is unpersuaded by the court s reasoning in Chavez and concludes that the penalty is serious. In Chavez, the court focused on the fact that in 18 U.S.C. 921 (a)(33)(b)(i)(ii) Congress recognized that some domestic violence offenses do not carry the right to a jury trial even though a conviction results in the prohibition of firearm possession. However, the issue is not whether Congress recognized a right to a jury trial for domestic violence offenses. The issue is

24 16 whether the penalty Congress attached to the offense was serious enough to entitle the Defendant to a jury trial under the 6th Amendment. Having examined that issue, the Court finds that a lifetime prohibition on the possession of a firearm is a serious penalty which entitles a Defendant to a jury trial under the 6th Amendment. Possession of a firearm for military purposes, self protection and sport has been an important aspect of American life throughout our history. Today, the issue of Governmental restriction of firearm possession is hotly debated. Substantial segments of American society hold strong opinions on the issue. Many advocate strict government restrictions on the ability to possess firearms while many others take the opposite view and consider firearms possession to be an integral part of their lives. In this context, the issue is very serious. Moreover, the categories of persons prohibited from possessing firearms under 18 U.S.C. 922(g) and the penalties imposed under 18 U.S.C. 924 for violating the prohibition (10 years) demonstrate that Congress views the prohibition as serious. The Court finds that a lifetime prohibition on the possession of a firearm is a serious penalty and, when combined with 6 months imprisonment, entitles a Defendant to the commonsense judgment of a jury. Defendant s Motion for a Jury Trial is GRANTED. United States v. Smith, 151 F. Supp. 2d 1316, (N.D. Okla. 2001).

25 17 The United States Attorney s Office for the U.S. District in Nevada prosecutes defendants convicted in Nevada courts of Battery Constituting Domestic Violence under 18 U.S.C. 922(g)(9) if defendants are caught possessing a firearm. In Clark County, Las Vegas Metropolitan Police Department has created a custom that a person even arrested for domestic violence must surrender his or her firearms and return his or her permit to carry a firearm. Even persons who have been arrested for domestic violence, but have had their cases denied for prosecution, face difficulty from Nevada state authorities in purchasing a firearm. These customs by state actors of treating persons accused of domestic violence and treating those accused, but later exonerated as if they have been convicted of domestic violence, violate their Second Amendment right to possess a firearm. Counties and municipalities are [state actors]... for constitutional deprivations resulting from application of governmental custom or policy. Miranda v. Clark County, 319 F.3d 465, 469 (9th Cir. Nev. 2003). Additionally, for Petitioner, the loss of his Second Amendment right will mean that he will be barred from continuing to serve in the Armed Forces. In this case, Petitioner, together with thousands of men and women each year who are accused of domestic violence in Clark County, suffer an unconstitutional deprivation of their Second Amendment right to bear arms based solely on an accusation of domestic violence even if that accusation proves false and the charges are dropped. For those convicted of

26 18 domestic violence, they are not permitted in Nevada to purchase weapons, and any guns seized from them will not be returned. It is for this reason that defendants are admonished of these risks they face by pleading guilty. The Court should look at the entire penalty scheme when reviewing the offense under Blanton. An example of a court applying Blanton is in Fushek v. State, 183 P.3d 536 (Ariz. 2008), where the court reviewed all the related statutory provisions, considering the mandatory lifetime registration and loss of privacy, the codification of the offense in a statutory section containing mostly felonies, and the clear statement of purpose in the legislative history; to conclude that the consequences of conviction reflect a legislative determination that the offense is indeed serious, and Fushek was entitled to a jury. Fushek, 183 P.3d at 541, (internal citations omitted). The same analysis applies here. The severity of the penalties unequivocally demonstrate that Nevada has deemed the crime serious. An offense of NRS , in addition to the 6-month maximum sentence, carries mandatory fines and administrative fees, mandatory community services hours, mandatory counseling, additional Civil liability under a claim unique to this offense, the removal of the prosecutor s ability to plea bargain, and is the only crime in Nevada to mandate that a police officer must arrest in instances of apparent domestic violence. NRS

27 19 Furthermore, the legislative declaration itself should erase any doubts as to the legislative intent: The legislature hereby finds and declares that: 1. There is a critical public need to ensure the effective prosecution of persons who commit acts of domestic violence in this state. A.B. 170, 69th Leg. Sess. (Nev. 1997). Such a preamble declaration of the legislature s views was persuasive in Fushek that the offense was serious. Fushek, 183 P.3d at Here, the clear statutory language and numerous penalties are all in addition to the two penalties that Mr. Lambey has long maintained are severe enough to be sufficient by themselves to demonstrate that the Nevada Legislature has determined that Domestic Violence is a serious crime: the loss of one s children and the loss of one s Second Amendment Right to Bear Arms. While NRS does not explicitly ban gunownership for a conviction of misdemeanor domestic violence, NRS , the statute governing the issuance of Concealed Firearm Permits, NRS (g) contains an explicit provision that mandates the denial of all applications and also the revocation of current permits for anyone who: Has been convicted of a crime involving domestic violence.... (NRS (g)). This proscription amounts to a constructive ban on the ability of a person to use a firearm for self-defense. When enacted, the belief of the vast majority of legislators was that the ability to legally conceal and carry one s firearm was fundamental to the ability to be able to use the firearm

28 20 for self-defense; the law s intent was to make it easier to obtain a concealed firearms permit ( CFP ) in Nevada. Senator Porter summarized the bill best; its purpose was to provide citizens with a more uniform process by which they can exercise their Second Amendment right. Hearing on S.B. 299 Before S. Judiciary Sub-Comm., 68th Sess. (April 25, 1995). Senator Adler proposed an explicit provision in the bill that domestic violence violators, should be excluded from those allowed to carry concealed weapons, whether they are convicted of a felony or misdemeanor, Hearing on S.B. 299 Before S. Judiciary Comm., 68th Sess. (March 28, 1995), available at txt. This became NRS (g). Nevada felt CFP is critical for self-defense, and as McDonald v. City of Chicago, supra, held, self-defense is a fundamental element of the Second Amendment Right. Nevada has constructively prevented those convicted of domestic violence from bearing arms for selfdefense, thus, Nevada has prohibited Mr. Lambey s Second Amendment Right. There is also ample legislative history showing that the Nevada Legislature was aware that NRS does not proscribe firearm ownership for a misdemeanor domestic violence conviction, and is comfortable with such a determination only because there is a federal statute, 18 U.S.C. 921(a)(33)(B)(i), already prohibiting firearm possession and use by those convicted of such a charge. See Hearing on A.B. 394 Before S. Judiciary Comm., 71st Sess. (April 19, 2001) (Senator Care indicated owing to the Lautenberg

29 21 amendment... a misdemeanor of domestic violence [conviction] loses the right to possess a firearm. ). Thus, the loss of Mr. Lambey s Second Amendment right to bear arms, by state application of a federal statute is a penalty of the offense and must be considered. Since a conviction under NRS effectively destroys one s Second Amendment right to bear arms; United States v. Smith, supra, is persuasive. In Smith, the Court held that a lifetime prohibition on the possession of a firearm is a serious penalty, which entitles Defendant to a jury trial under the Sixth Amendment. Id. at The same principle applies here. A person convicted of domestic violence also faces imminent deportation or removal for which there may be no relief if that person is not a United States Citizen: INA 237 (8 U.S.C. 1227) (a) Classes of Deportable Aliens. Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: E) Crimes of Domestic violence, stalking, or violation of protection order, crimes against children and: (i) Domestic violence, stalking, and child abuse. Any alien who at any

30 22 time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term crime of domestic violence means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government. The Court recently held that deportation consequences are no longer collateral and are now considered substantive rights. See Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (U.S. 2010). Even a Lawful Permanent Legal Resident Alien who has lived in the United States for his entire life faces removal if convicted of domestic violence.

31 23 Although Petitioner is a United States citizen, there are thousands of persons annually who are not citizens who are charged with domestic violence in Nevada. These persons, many of whom are lawful permanent aliens, face a lifelong banishment from the United States away from their families if they are convicted of domestic violence. Many of these defendants have become assimilated to the United States and have children who were born in the United States. The City of Las Vegas contends that Petitioner is not entitled to a jury trial because a conviction for misdemeanor Battery Constituting Domestic Violence carries a maximum term of imprisonment of six months rendering it a petty offense and thus does not entitle Petitioner to a jury trial. Petitioner contends that Blanton v. N. Las Vegas, 489 U.S. 538 (1989) and State v. Smith, 99 Nev. 806, 672 P.2d 631 (1983) do not apply to persons criminally charged with Battery Constituting Domestic Violence. Blanton defines penalty as follows: In using the word penalty, we do not refer solely to the maximum prison term authorized for a particular offense. See United States v. Jenkins, 780 F. 2d 472, 474, and n. 3 (CA4), cert. denied, 476 U.S (1986). Blanton v. N. Las Vegas, 489 U.S. 538, 542 (U.S. 1989). Other courts have concluded that driving while intoxicated is a serious offense requiring jury trial. The United States Eighth Circuit Court of Appeals

32 24 has held that a 15-year license revocation for a third conviction for driving while intoxicated rebuts the presumption that a maximum term of imprisonment is petty: The Supreme Court s analysis of the facts in Blanton supports our conclusion that adding the 15-year license revocation to the six month prison term resulted in a penalty severe enough to warrant a jury trial in this case. In Blanton a DWI conviction led to a penalty of up to six months imprisonment, a $1000 fine, a 90-day suspension of the offender s driver s license, and compelled attendance at an alcohol abuse education course. Because the maximum possible prison sentence did not exceed six months, the Court weighed the severity of the additional statutory penalties. The Court held that the $1000 fine was not out of step with a six month sentence, and that the required education course [could] only be described as de minimis. 109 S. Ct. at 1294 n. 9. With regard to the license suspension, the Court was unable to determine if the suspension ran concurrently with the prison term. But even if the suspension were consecutive, the court observed that the offender could obtain a restricted license after 45 days. A full suspension for 45 days and a partial suspension for another 45 days was not severe enough to raise sixth amendment concerns. Id. Far from ruling out consideration of license revocations, the Court s decision implies that license revocations are exactly the kind of

33 25 additional statutory penalties we should consider. While a 90-day suspension was not severe enough to raise sixth amendment concerns, a 15-year revocation is a substantial burden on the offender that is completely out of step with a six month prison term. Upholding this conviction would permit the Nebraska legislature to defeat the right to a jury trial by keeping the prison sentence to no more than six months, while finding other severe penalties to punish what it considers to be a serious offense. We therefore conclude that Richter was denied his sixth amendment right to a jury trial. Richter v. Fairbanks, 903 F.2d 1202, 1205 (8th Cir. Neb. 1990). In this case, Petitioner provided notice under NRS demanding his right to trial by jury. If Petitioner is convicted of Battery Constituting Domestic Violence in violation of NRS , NRS , and NRS , he faces the loss of his right to possess a firearm even for self-defense, despite the fact that the Court in McDonald v. City of Chicago, supra, held that the Second Amendment right to bear arms is a fundamental right incorporated through the Fourteenth Amendment to the States. Petitioner argues the loss of raising his 5-yearold daughter far outweighs the severity of the loss of a defendant s driver s license for fifteen years where the latter is entitled to a jury trial in another jurisdiction. Additionally, Petitioner s Second Amendment

34 26 right to possess a firearm is at risk of being lost along with his career in the Armed Forces since a conviction for domestic violence would prohibit him from carrying out his military duties which include carrying a firearm. These potential consequences create the need for an additional safeguard to ensure that Petitioner does not suffer a violation of his Due Process rights in the form of the loss of his Second Amendment right and the right to raise his daughter. By allowing a judge and not a jury to convict a defendant of Battery Constituting Domestic Violence, a judge thus unconstitutionally has the ability to terminate a defendant s right to raise his or her own children. This is due to the presumption created by NRS 432B.157 and NRS 125C.230 that the now convicted defendant is an unfit parent. The fact that a defendant stands to lose his Second Amendment right upon conviction of misdemeanor Battery Constituting Domestic Violence makes this criminal offense anything but petty. In fact, there is no other misdemeanor in the Nevada Revised Statutes where a defendant risks losing a federally protected constitutional right upon conviction. Indeed, the admonishment Nevada courts use warn a defendant that a conviction for Battery Constituting Domestic Violence may subject a defendant to state prosecution for a violation of NRS and to federal prosecution if the defendant is subsequently caught possessing a firearm.

35 27 While a defendant convicted of driving under the influence (DUI) suffers suspension of his or her license, that loss is only temporary as he or she can eventually re-apply to have his or her license privileges reinstated. A conviction for Battery Constituting Domestic Violence results in the permanent loss of a defendant s Second Amendment right. Because a defendant s Second Amendment right is at stake in a criminal complaint of Battery Constituting Domestic Violence, a defendant should be afforded the additional safeguard of a jury to decide his or her fate. Additionally, there is no other misdemeanor crime in Nevada for which a conviction results in a lifelong banishment from the United States in the form of deportation. There is no other misdemeanor crime in Nevada for which a conviction subjects the defendant to losing his or her children. Being deported from the United States and separated from one s family is anything but petty. And the loss of one s children due to a conviction for domestic violence is anything but petty

36 28 CONCLUSION The Court should grant Petitioner s writ of certiorari. Respectfully submitted, MICHAEL D. PARIENTE THE PARIENTE LAW FIRM, P.C Howard Hughes Parkway Suite 615 Las Vegas, Nevada (702) Michael@parientelaw.com Counsel for Petitioner

37 App. 1 APPENDIX A IN THE SUPREME COURT OF THE STATE OF NEVADA LUANIE LAMBEY, Petitioner, vs. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE VALORIE J. VEGA, DISTRICT JUDGE, Respondents, and THE STATE OF NEVADA, Real Party in Interest. No ORDER DENYING PETITION (Filed Sep. 18, 2013) In this original petition for a writ of mandamus or habeas corpus, petitioner Luanie Lambey challenges an order of the district court denying his request for a jury trial on a pending charge. Lambey claims that the district court erred in denying his motion because he is entitled to a jury trial on the offense of misdemeanor battery constituting domestic violence in municipal court. We disagree. Under Nevada law, first-offense domestic battery is a misdemeanor punishable by, inter alia, two days to six months in jail. See NRS (1)(a)(1). Where a defendant is charged with an offense for which the

38 App. 2 period of incarceration is six months or less, the crime is presumed to be a petty offense and a jury trial is constitutionally required only in rare and exceptional cases. See United States v. Nachtigal, 507 U.S. 1, 3-5 (1993); Blanton v. North Las Vegas Mun. Court, 103 Nev. 623, 748 P.2d. 494 (1987), aff d sub nom. Blanton v. North Las Vegas, 489 U.S. 538 (1989). In those exceptional cases, a defendant must prove that statutory penalties in addition to 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, Blanton, 489 U.S. at 543. Lambey claims that various collateral consequences of a conviction for domestic battery support his contention that it is a serious offense: (1) NRS 432B.157 and NRS 125C.230 create a rebuttable presumption that the perpetrator of domestic violence is unfit for sole or joint custody of his children; (2) he could lose the right to possess a firearm under 18 U.S.C. 922(g)(9) and carry a concealed weapon under NRS (4)(g); and (3) a conviction would render a misdemeanant deportable under federal immigration law. 1 Lambey also contends that the penalty scheme reflects the Legislature s determination that the offense is serious. Notably, in addition to the six-month sentence, there are fines, fees, community 1 Lambey concedes that he is a United States citizen, and we therefore conclude that he has not demonstrated that he could suffer deportation.

39 App. 3 service, counseling, civil liability, and reduced discretion on the part of the prosecutor and police. 2 While Lambey states that his interest in raising his child and his right to bear arms are important fundamental rights, he offers no convincing support for the proposition that the collateral consequences of a conviction those imposed by Nevada courts other than the sentencing court, other states, or by the federal government are relevant to determine whether the offense is serious. Compare Foote v. United States, 670 A.2d 366, 372 (D.C. 1996) ( Blanton s presumption that offenses carrying no more than six months incarceration are petty cannot, in our view, be effectively rebutted by reference to the potential remedies in hypothetical civil or administrative proceedings which have not been instituted. ), and Smith v. United States, 768 A.2d 577, 580 (D.C. 2001) (concluding that potential termination of employment following conviction is collateral and therefore cannot elevate petty offense to serious one), with Richter v. Fairbanks, 903 F.2d 1202, 1205 (8th Cir. 1990) (concluding that, although maximum jail term was six months for DUI conviction, offense was serious because statute also included possible 15-year driver s license revocation). Further, we note that this court has previously rejected the proposition that collateral 2 Lambey also argues that other courts have concluded that a significant suspension of one s driver s license has necessitated a jury trial. However, Lambey has not demonstrated that he faces such a penalty if convicted of first-offense domestic battery.

40 App. 4 consequences of a conviction should be considered in determining its seriousness. See Blanton, 103 Nev. at P.2d at In addition, Lambey has not demonstrated that the fines, fees, community service, and counseling that may be mandated by statute are so onerous that he has overcome the presumption that the legislature considers this a petty offense. See Nachtigal, 507 U.S. at 4-5 (concluding that monetary fines and terms of probation were not as severe a penalty as six months in jail). We therefore conclude that because Lambey cannot overcome the presumption that the offense is petty, the district court did not manifestly abuse its discretion by denying his request for a jury trial, see NRS ; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981), nor is his liberty being unlawfully restrained, see NRS Accordingly, we ORDER the petition DENIED. /s/ Gibbons, J. Gibbons /s/ Douglas, J. Douglas /s/ Saitta, J. Saitta