Justice Mark Gibbons on Gun Rights
From Judgepedia
Sitting En Banc (Justice Saitta voluntarily recused herself), Justice Gibbons authored the majority opinion, over the dissent of Justice Parraguirre, which reversed the Plaintiff’s conviction for unlawful possession of a firearm by a fugitive from justice in violation of NRS 202.360(1)(b). The Court held that the statute was unconstitutionally vague because (1) the phrase “fugitive from justice,” undefined, gives inadequate notice of who the legislature intended to prohibit from possessing a firearm, (2)"fugitive from justice" does not have an ordinary and well-established meaning (3) the statute does not establish a clear standard as to whether a violation has occurred and thereby allows arbitrary and discriminating enforcement.
In contrast, the dissent, authored by Justice Parraguirre, argued that because "the term 'fugitive from justice' has a well-settled meaning in Nevada and does not appear to promote" arbitrary enforcement, the Plaintiff's conviction should not be reversed.
- ON THE GOVERNING STATUTE: “[a] person shall not own or have in his possession or under his custody or control any firearm if he***[i]s a fugitive from justice.”
- ON THE NECESSARY NOTICE REQUIREMENT: “We conclude that NRS 202.360(1)(b) does not survive the first prong of the vagueness test because the Legislature did not define the term “fugitive from justice.” “By failing to adopt the federal definition of ‘fugitive from justice’ or include any definition of that phrase in NRS 202.360(1)(b), the Legislature failed to provide the public with statutory notice of what that term means. It could arguably encompass a wide variety of circumstances. NRS 202.360(1)(b) does not state whether the underlying act that triggers its application has to be a felony, a misdemeanor, or a mere violation of a municipal ordinance. As NRS 202.360(1)(b) is written, citizens have to guess as to whether even an unpaid parking or traffic ticket subjects them to the ambit of the statute.” Furthermore, “We cannot determine from the statute's provisions whether the person has to have been formally charged with a crime, be wanted as a suspect but not yet indicted, be guilty of a crime but not yet discovered, be wanted for general questioning relating to a crime, or whether the person even has to know he has committed a crime."
- ON THE LACK OF AN ORDINARY AND WELL-ESTABLSIHED MEANING OF "FUGITIVE FROM JUSTICE": “If the term “fugitive from justice” had an ordinary and well-established meaning, that would mitigate the Legislature's failure to define that term. We have examined several sources, including federal law, our jurisprudence, and nonlegal sources. We conclude, based on our research, that “fugitive from justice” has no well-established and ordinary meaning.”
- ON ARBITRARY AND DISCRIMINTORY ENFORCEMENT: “NRS 202.360(1)(b) is susceptible to arbitrary and discriminatory enforcement because it does not specify the circumstances under which a person can be arrested and prosecuted as a fugitive from justice in possession of a firearm. It therefore establishes no clear standards to guide law enforcement officers, prosecutors, district courts, and, ultimately, jurors as to whether a violation has occurred.” “Without a clear definition of the term ‘fugitive from justice,’ NRS 202.360(1)(b) impermissibly encourages, authorizes, or at least fails to prevent its own arbitrary and discriminatory enforcement.”
