Sunday, February 21, 2016

The Inside Story of the PUC's Solar Protest Open Carry Ban

The Public Utilities Commission of Nevada (PUC) recently illegally interfered with the open carry of firearms at contentious hearings regarding the recent solar rate changes. General Counsel Lina Tanner called the exercise of Second Amendment rights “irresponsible behavior” despite no violent or overtly threatening acts. “Things were getting really tense on the ground,” she told the LVRJ about the Feb. 8 incident. Nevada Carry submitted a public records request for emails related to the threats and open carry issue.

.PDF file of the public records is available here.

The actual denial of entry on Feb. 8 was to two individuals openly carrying firearms trying to deliver a wheelbarrow full of public comment cards to the hearing room. Delivering the cards was deemed to be disruptive. An email sent ‘live’, details that one of the security guards also told the armed citizens that they could not enter with their guns. One of the armed citizens said they’d be back again, fully armed, and with 1000 people (presumably protestors). The Feb. 12 denial of entry was based on an openly carried firearm.

4th from left appears to have a concealed firearm. Source: Twitter, Bring Back Solar
Threats and Outrage

An email (edges cutoff) was included that contained considerable amounts of vulgar invective in a rambling tirade. The insinuations made by the party or parties responsible were quite immature and probably did nothing to help anyone’s case. There were no actionable, criminal threats made in the email, but the publishing of various PUC commissioners’ addresses and statements about a commissioner’s daughter could be reasonably interpreted as an attempt at intimidation. Most of us, at least those of us in the gun-rights community, believe that personal lives should remain separate from a person’s professional life and that ad hominem attacks are unjustified.

The email in question and the solar rate outrage does show that the PUC has tapped into more than just citizens irked over their solar rates. In the last few years, Americans have shown increased anger at local, state, and federal agencies that seem to have overstepped their bounds and trodden upon the citizen in favor of special interests. It seems that the PUC has gone against the wishes of the public in favor of NV Energy, which breeds this level of distrust and criticism.

The monopoly that power companies have doesn’t help either. In this issue, as well as with gun rights issues, the public feels that their representative democracy has been usurped by public interests. We saw this same railroading of public opinion when gun bills came up for vote in 2015’s legislature. In Nevada, bureaucrats and elected officials often go too far in protecting private industry or their own governmental fiefdom, forgetting that the people too have a say.

Based on the information available, the open carriers alarmed the PUC because of their presence in a large crowd protesting a heated issue. Coupled with the personal attacks against the commissioners, the PUC got scared and had a knee-jerk reaction. We have no information at this time that the citizens openly carrying firearms were responsible for any threats or other illegal acts.

Nevada Carry would like law enforcement, who we know read this blog, to provide us with any information about actual threats. We don’t approve of that kind of thing and would like to help expose anyone who behaves criminally.


The PUC incorrectly focused on firearms as the problem when the problem was actually boorish behavior. An over-stated threat centralized on guns because of their stigmatized nature. The one substantive action the PUC could take was banning firearms to increase the level of psychological safety. It was all an illegal exercise of security theater.

On Monday and Friday, had someone armed with a weapon made a threat, acted in a suspicious or threatening manner, or otherwise created a disturbance, they could have been arrested for those violations. Illegally keeping out open carriers was not the solution here. Keeping someone out because one doesn’t like the fact that they are legally armed is government intimidation, illegal, and unconstitutional. A perceived threat does not constitute and actual threat.

The Second Amendment is as important as the First and deserves the same respect. The PUC would (probably) never attempt to exclude anyone because any legal speech that the PUC happened to disagree with. In fact, keeping out anyone with a Bring Back Solar shirt would be unconscionable and never brought up for debate. Why is it supposedly okay to infringe upon the right to bear arms, especially in the absence of probable cause that a legally carried weapon will be used in a crime? The state and federal constitution apply in their entirety inside public buildings, not just outside.

Arresting someone for lawful open carry (or other charges in lieu of gun charges), simply because it is done at a heated protest at or near government offices has chilling effect upon the other Second Amendment rights. We have seen elsewhere open carriers arrested for “obstructing an officer” or trespass. 
“‘When law enforcement can decide willy-nilly that they don't like what you're doing and tell you to leave, because you have a right to be on public property, we have a problem with this state,’ [CJ] Grisham said [of Texas Open Carry].” 
The PUC has now improperly banned openly carried firearms in their offices; who is to say it stops with them and not another state agency? Or perhaps the government and public become conditioned to infringements and slowly, their right to bear arms slips away, soon to be followed in the grave by other rights. Exercising a right that public officials disagree with is not “inappropriate behavior.” Imagine if state agencies set the precedence that they can decide what laws apply to them and what rights they will honor?

Open Carry and Public Buildings

In 1995, NRS 202.3673 was enacted, prohibiting firearms in virtually any public building. This was the same year and part of the same bill (SB 299) that made Nevada into a ‘shall issue’ state for concealed firearm permits. Prior to 1995, Nevada had no law prohibiting firearms in public buildings (apart from schools), concealed or otherwise. Additionally, Nevada has never had a law regarding openly carried firearms in any fashion.

NRS 202.3673 specifically prohibits only concealed firearms and not openly carried firearms. Additionally, signs or metal detectors must be present at each public entrance.

It was then liberalized in 1999; that with very few exceptions, anyone with a concealed firearm permit could carry a concealed firearm in a government building. A state legislator in hearings correctly pointed out that signs disarm the law abiding, do little to deter criminals, and that all but a fraction of mass shootings in the US since 1950 occurred in ‘gun-free’ zones. Out of concern for citizens who were disarmed by this law, the restriction was changed to allow firearms in most public buildings.

In 2007, the current law was passed which makes the prohibition applicable to concealed firearms in any building that has signs or metal detectors at each public entrance (which the PUC did do on Friday, Feb. 12, for the solar rate hearing).

Openly carried firearms (generally in belt holsters) are not prohibited by law in public buildings. State law (NRS 202.3673) specifically prohibits only concealed firearms in public buildings. An opinion from the Legislative Counsel Bureau in this year’s legislative session confirmed this fact. Legislators took no action to ban openly carried firearms in public buildings.

Other State Facilities

The PUC should have reached out to other state agencies to see what their policies are. The DMV, for example, acknowledges legality of openly carried firearms and does not interfere with armed citizens going about their business. Several memos and emails are available to this effect have been issued. After a few encounters with security, open carriers contacted the administrators, who then made the staff aware of open carry’s legality and changed the signs statewide. The NRS 407.0475 and the Admin Code prohibits the state park system from restricting the right to bear arms.

The materials included in the public records request pertain only to the legislature itself and the Supreme Court, which may or may not have legal authority to issue a court order for its facilities.

PUC’s Illegal Gun Ban

The PUC's policy to prohibit “all firearms or dangerous weapons, of any type, concealed or unconcealed” “regardless of whether the person is licensed to carry the weapon or not” is illegal on its face. Sorry, a plain reading of the statue indicates that they just can’t do this. This is another case of government (the state itself, this time) betting on the fact that no one will try to test them and/or file a lawsuit in challenge.

The ‘or else’ segment states that the criminal act is trespassing. Here, they are tacitly admitting that they cannot actually ban openly carried firearms per NRS 202.3673, but nonetheless doing it anyway. Unless one is causing some sort of disturbance or committing another crime while openly carrying a firearm (the gun itself is not a disturbance), being removed from the premises would be illegal.

Furthermore, the state preemption statutes, while aimed primarily at municipalities, do contain the unambiguous clause: 
“The regulation of the [...] possession, carrying [...] firearms [...] in this State and the ability to define such terms is within the exclusive domain of the Legislature, and any other law, regulation, rule or ordinance to the contrary is null and void.” (taken from NRS 244.3641.b, emphasis added) 
The PUC does not have any legal grounds for making such a policy, given the explicitness of the legislature’s intent, and any legal advice to the contrary would be bad advice. I’m sure the attorney general told them as much, which is why their policy only refers to trespassing as a punishment, and not arrest under NRS 202.3673. This policy was quite likely intended to provide cover for the exigent crisis so, as the emails state, security could have a policy to refer to when it turned people away. Even so, such a policy should never have been made as no legal authority for it exists.

Suggestion for the PUC: amend your policy by leaving out openly carried firearms and state that anyone causing a disturbance, etc., in a public building will be subject to removal or arrest for the appropriate violation. That way, you’re legal, you don’t get sued for violating the right to keep and bear arms, and get “the open carry people” to go away.

Lastly, why is the PUC afraid of guns they can see? Had there been no openly carried firearms, in theory, one could have carried a concealed firearm into the meeting (editor is unaware if the facility in question was posted prior to the week of Feb 8). It’s the guy who hides the gun and unexpectedly attacks that’s the problem. It’s the person who doesn’t care for laws, metal detectors, or security that won’t be stopped by a policy. Policies banning guns only serve to disenfranchise the law-abiding citizens and further alienate a distrustful and suspicious citizenry.   

Editor’s note: I feel compelled to remind the PUC, law enforcement, and anyone unfamiliar with our work that we proudly support law enforcement yet we encourage government accountability, loves our constitutional rights, and we are fiercely patriotic. We strongly disapprove of any "sovereign citizen" movement which advocates violence against police, a non-democratic overthrow of the government, or any other assorted tin-foil hat paranoia. While we support the right to open carry peacefully, even in a protest, we do not approve of violence, threatening invective, or using the Second Amendment right to intimidate. It takes citizens and their government officials, all respecting each other as an individual, the constitutions, and the law to make our country and state work. Citizens carriers, particularly open carriers, must be good ambassadors for an armed citizenry and show that nothing bad happens when normal people can enjoy their right to keep and bear arms.

I would like to thank Ms. Williamson and the PUC for being so responsive and thorough in their response to my public records request. Such prompt action promotes trust in, and transparency of, government.

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