But no jury trial
Misdemeanor Battery
Now a Federal Rap?

If a misdemeanor battery conviction under Nevada law now also means automatic loss, under federal law, of Second Amendment firearm rights, should someone so charged be entitled to a jury trial?
That was the question put by an Elko attorney last week to Elko Justice of the Peace Molly Leddy.
The JP answered 'no,' denying a request for a jury trial for James Daniel Stevenson.
Stevenson's attorney, Mark Torvinen, had argued Leddy could approve the request based on the severity of the federal law, which strips away a right normally taken only from felons, illegal drug users, mental defectives, illegal aliens, and those dishonorably discharged from military service or who renounce their U.S. citizenship.
"I made this motion in earnest to challenge you, not personally, but judicially, to do what your oath meant," Torvinen said to Leddy. "What I suggest to you is that domestic battery is unlike any other misdemeanor because the Congress of the United States has made this offense unique."
Congress enacted the law in U.S. Code Title 28, making a person ineligible to possess a firearm upon the conviction of battery against a spouse, relative or live-in partner. The law also applies to convictions before the law went into effect and forever prohibits owning a weapon.
Deputy District Attorney Roger



Harada argued that the acts of Congress were irrelevant in the court's consideration of whether the Nevada Legislature considered the crime so serious as to trigger Sixth Amendment jury rights.
Harada cited a U.S. Supreme Court case, Blanton, which provides a balance test for allowing the use of jury trial, using the wording "serious" penalties. Harada said Nevada law does not impose a "serious" enough penalty for a battery conviction to warrant a jury trial. In Nevada, the penalty for a battery conviction is up to six months in jail and/or a $1,000 fine.
"This court doesn't have the jurisdiction to make rules on U.S. Code Title XXVII," Harada said.
"That law was not created by the Nevada Legislature."
Harada said the Legislature has not even distinguished between battery and "domestic" battery.
"In this particular case, Mr. Stevenson is charged with `battery' and the law does not make any distinction for who the victim is," Harada said. "The federal law flies in the face of that law."
Harada said if Leddy allows the jury trial based on the consequences


 
of a federal law, then Leddy will have to start considering the laws of the other 49 states and how a conviction here would affect a person who moves out of Nevada.
"I'm talking about the sovereignty of the State of Nevada," Harada said.
After hearing arguments for nearly an hour and taking a 10-minute recess to read Nevada Revised Statutes and case law, Leddy denied the request, suggesting Torvinen challenge the law directly in federal court.
"The court will not be controlled by another jurisdiction," Leddy said.




"I must look at Nevada law and not what another jurisdiction will do. The Legislature here did not pack this law with onerous penalties -- Congress did."
Torvinen's only comment after Leddy's decision was: "The court has spoken."
Stevenson's trial, which will now be decided solely by Leddy, is scheduled for 9:30 a.m. April 24.

This story was based on an Elko Daily Free Press report.


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