There has been much talk of Second Amendment Sanctuary counties lately and using Nye County, in particular, for private gun sale transfers without a background check. We need to have a look at what the state statutes say because a simple statement or resolution doesn’t affect state law. The sheriff’s statement to refuse to investigate or devote resources does not mean the state or the DA could still press charges. The courts have ways of enforcing the laws that a simple statement by the sheriff or a resolution of the commissioners don’t affect.
The statements in opposition from many sheriffs essentially mean “red flags” and background checks are a low-priority to them. They will be opposing the law in word and in deed. Since they will not be looking for violations or necessarily doing anything about them if they occur, sanctuary counties have some level of safety from prosecution. However, this does not mean they will not enforce the law or that one is free to break the background check laws there.
Non-compliance and non-cooperation by peace officers in sanctuary counties is an exercise of officer’s discretion, general looking the other way, and personal risk and liability to uphold one’s personal values. Sanctuary county officers ignore these laws at their own risk and face the wrath of the State should the anti-gun politicians in Carson City end up with egg on their face. For legal reasons, law enforcement, judges, and district attorneys cannot in good conscience state they will absolutely defy the law.
Refusing to enforce the law, in certain cases, put police in violation of the law. It is illegal for a peace officer or sheriff to refuse to arrest someone when ordered to do so by a judge (NRS 199.270 & NRS 248.060). Contempt (NRS 199.340) is also a concern for refusing to obey court orders or potentially a “red flag” law. This is not to say that a cop might do a really crappy job trying to apprehend someone, immediately release an arrestee on their own recognizance after arrest, or refuse a “red flag” order as too dangerous to serve, etc.
Potential non-compliant patriots looking to sanctuary counties should be concerned about other-county investigations, the DA, and the Attorney General. They have their own peace officer investigators. Nothing I could find limits the jurisdiction of local peace officers to their own counties or cities. Conceivably, officers from an anti-gun county could enforce the laws in a sanctuary county, though I can only see this meeting legal muster if the violator was from the cop’s jurisdiction or if the officer was a state investigator (or part of a state task force).
NRS 171.015 sets the jurisdiction for offenses in the county in which the offense is consummated. If the crime occurs in a county, the trial needs to happen there.
NRS 171.030 allows offenses happening in parts of two counties to be charged in either county. This raises the question of whether or not conspiring (see below) to violate the universal background check law in, say Clark County, is prosecutable there despite the sale happening in Nye County.
When a public offense is committed in part in one county and in part in another or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the venue is in either county.
Conspiracy (NRS 199.480 3.) to violate the background check law could also be charged and this is a charge that might apply in an anti-gun county (for instance the parties live in Clark County and travel to Pahrump to make the sale). The conspiracy to break the law occurred in Clark County and the violation occurred in Pahrump.
From my understanding, this could allow Clark County to charge the conspiracy violation in its courts and even if Nye County doesn’t bring charges for the actual sale/transfer or they come to naught, one can still be convicted of a gross misdemeanor. Worse, depending on case law or judicial interpretation, NRS 171.030 might allow the background check offense to be tried in Clark County, if the conspiracy and sale/transfer is considered to be one “public offense.”
NRS 202.2543* states that the crime is when an unlicensed person sells or voluntarily transfers one or more firearms to another unlicensed person. I italicized “sells or voluntarily transfers” to point out that this is the element of the crime. The sale, the exchange of money for the gun, or physically transferring possession and leaving the new owner alone with the gun, would be the “consummation” in NRS chapter 171.
In my opinion, not getting a background check on the buyer/transferee would only be criminal in the county where it occurred, unless you were on or near the border of another county (NRS 171.035).
Violation of the background check law is a gross misdemeanor or a felony. A “gross misdemeanor” is punishable by more than six months to a year in jail, which allows the defendant to request a jury trial. While a judge can refuse a jury trial request for simple misdemeanor, they cannot for a gross misdemeanor. More on why a jury is important later.
But what if the sanctuary county DA refuses to prosecute violations? Let’s say that a district attorney refuses to file prosecute for political reasons (not because it’s a weak case); the judge may require the state Attorney General, currently anti-gun Democrat Aaron Ford, to prosecute (NRS 173.065). This is a real danger if the sanctuary movement becomes high-profile defiance.
But what if the Attorney General brings prosecution and decides to try for a change of venue, because those conservative, gun-owning people of Nye County will not be “fair and impartial”? A sympathetic judge (all the way to the Supreme Court) may well deem a pro-gun jury that is highly likely to acquit, the law be damned, means the venue should be changed, oh say to Clark County.
NRS 174.455 allows a change of venue, but in order to do so, during jury selection, the jurors state they are opposed the gun control laws. A smart, pro-gun prospective juror will keep his mouth shut about his opinions and appear unbiased.
So if the DA or the Attorney General brings charges to trial, or there is a change of venue, the only thing left to do is to rely on the jury to nullify the verdict.
Jury nullification is a long tradition in English common law where the jury has the right to acquit a defendant if they feel the law is unjust. While trial instructions and courts suppress any attempts to inform the jury of their nullification rights, the right has been generally upheld.
Nullification can be a total acquittal by a unanimous “not guilty” verdict (see O. J. Simpson) or by one or more jurors dissenting from the majority and hanging the jury. A hung jury results in a mistrial. Even if a nullified verdict is set aside, the tone for the new trial is set (that the public is opposed) and the DA must weigh the costs in time, money, and trouble to have a new trial.
In conclusion, if you break this law, you do so at your own risk. A sanctuary county ultimately means nothing other than extreme opposition to the laws, not that prosecution is impossible. I am not an attorney and this is not legal advice. If you get caught, don’t be a douchebag, hire a damn good attorney and prepare to take the case to the US Supreme Court.
*Universal background check language taken from Question 1 codified sections for ease of linking as SB 143 has not yet been codified by the Legislative Counsel Bureau.