Friday, April 22, 2016

Library Has Mom Illegally Arrested for Legal Openly Carried Gun; Suit Filed

A mother legally openly carrying her handgun was unlawfully arrested at the Rainbow branch of the Las Vegas-Clark County Library District (LVCCLD) back on March 16. This is the latest incident in a string of Second Amendment abuses by the district which culminated in the defendant, Michelle Flores, being detained in front of her young children. She was also threatened with having her children removed by CPS. Ultimately, Flores’s handgun was seized and she was given a citation for trespassing before being released at the scene.

A lawsuit has been filed by Flores, who is represented by Ashcraft and Barr. A copy of the complaint is available here. Flores seeks damages pursuant to the provisions of SB 175/240 which allow for up to triple damages for any party adversely affected by an illegal firearm ordinance.

Openly carrying a firearm in a public library is legal in Nevada. In fact, several library districts, including the Henderson district and the Washoe District, recognize this fact. State law prohibits government entities from banning firearms from their buildings under state firearm preemption laws. Only the legislature can regulate where and how firearms can be carried. Furthermore, the library’s own Rules of Conduct don’t even prohibit openly carried firearms, only concealed firearms pursuant to state law.

Outside of Nevada, the Seattle, Washington library changed its policies on open carry and the Capitol Area District Libraries (CADL), Michigan, lost a suit for violating state law by preventing the lawful open carry of firearms. Additionally, Texas libraries are not allowed to have firearm bans as well, which includes the state's recent decriminalization of open carry. On the concealed carry end, the Denver Science Museum dropped its concealed carry ban because it was unenforceable per state law. 

The Incident

Flores told us:
"I was inside for about an hour with no issues looking for books for my children. I passed by multiple staff members with no issues. I checked out a few books and was about to exit the library when the security guard began calling after me to tell me firearms are not allowed. I attempted to talk to the hired guard about the law and he summoned a library employee. She brings up an invalid rule the library has that they can prohibit firearms. She then summons the police. No one during this time ever asked me to leave the premises. After the officer’s arrived, I attempted to film the interaction and was instead placed in handcuffs with my phone and firearm taken from me. This all occurred in front of my young children (5, 3, 1). The officers never attempted to find out my side of events.  
"As they escorted me out of the building, one of the officers was asking if I had any family to pick up my children, since I did not they proceeded to call CPS to pick up my children with the threat of arresting me. Fortunately I had a friend on the way who arrived a while after I was outside in cuffs. During the time in handcuffs I was basically forced to take care of my children to ensure they would not enter the parking lot while other patrons were coming to and from the library. Once my friend arrived, he was able to take charge of my children and a 3rd officer arrived shortly after. This officer finally listened to my side of events. The officer that put me in cuffs then comes back to me and says they will release me, and give me a citation but impound my firearm. After numerous phone calls and conversations between the officers and library employees, he then came to tell me I would be trespassed for one year and receive a citation but would retain possession of my firearm."

Flores was released with a citation for trespassing (NRS 207.200). A librarian read her the trespassing statement and banned her from library property for a year. 

Flores's friend arrived to assist her and videotape the encounter. Nevada Carry has reviewed the video. Though her friend was observing the encounter and not interfering, he was ordered to leave the area or disarm. He chose to put his gun in his car. A confrontational officer approached him and said “That gun looks like it’s partially concealed. […] It looks like it’s black under there.” Flores’s friend informed the officer that he had already removed his handgun. The officer asked the friend to identify himself and what he was doing there.

“You’re not involved here, so leave,” the officer said. “Cause you’re not involved with what we’re doing at all, so go ahead and leave here. We’re talking care of business here. Now I’m advising you once. That’s your one warning. I’m going to give you one warning, so leave.” This behavior isn’t unusual. A videographer Mitchell Crooks was beaten in 2012 by an LVMPD officer who was upset with being filmed. An officer suggested that even though Flores’s friend’s holster was empty, he could be considered to be carrying concealed when the officer saw the holster.

The cooler officer called out that he and Flores’s friend already spoke. The aggressive officer then walked away. Flores was then uncuffed and signed the citation. The officers were apparently unaware of state firearm preemption laws. The librarian read the trespassing warning to Flores and prohibited from visiting any LVCCLD library for one year.

The actual illicit policy 

No trespass occurred

Flores was cited for trespassing, a violation of NRS 207.200, despite never actually violating any provisions of that section. The violation has two elements.

Subsection (a) Going into a building "with intent to vex or annoy the owner or occupant thereof, or to commit any unlawful act." First, Flores had no intent to vex or annoy the library staff or the patrons. Additionally, there was no alarm or panic, nor did she behave in a disruptive manner, which might constitute other criminal behavior.

Second, Flores did not enter with intent to vex or annoy. Her behavior would have been otherwise unremarkable, save for her handgun. There was no reports of disturbed or alarmed patrons or any other criminal behavior. Had Flores somehow been committing a disturbance, Metro probably wouldn't have taken nearly an hour to arrive.

Most importantly, no unlawful act was committed. The library district has repeatedly cited NRS 379.040 as its authority to illegal ban firearms. That section gives only the board of trustees the authority to make reasonable regulations. The library Code of Conduct, which was last approved by the board of trustees in an unrelated update in Jan. 2011, only prohibits concealed firearms in conformance with state law. The district cites a policy that they have circulated to staff which was never approved by the board of trustees (at least since 2004).

The policy is merely an administrative response when citizens' objections forced them to manufacture something. Since the ‘policy’ was never approved the board of trustees, it is not an enforceable regulation per NRS 379.040. District bureaucrats made up the ban.

The library district's own administrative policy, even if somehow considered enforceable, is specifically prohibited by state preemption of firearm regulation. Such a policy is null and void as the district has no authority to regulate the carry of firearms.

The officers made an arrest on false pretenses at the behest of the library staff. LVCCLD is so bent on illegally prohibiting firearms that it is willing to see mothers with children arrested and to invite a lawsuit, at taxpayer's expense. Unfortunately, Metro police administration placed its officers in this position by failing to properly educate their employees on the legality of open carry and changes in state law. This isn’t the first time Metro illegally interfered with an open carrier because of officers’ ignorance. LVMPD officers also recently ejected a legal open carrier from the Clark County Fair.

The Las Vegas-Clark County Library District knowingly and willfully violated the provisions of firearm preemption. In November, a group of citizens warned the board of trustees that their administrators’ actions were flying in the face of state law. Despite repeated public protest and outcry, the district has continued its abuses and usurpations. 

Library counsel, attorney Gerald Welt, stated in a private conversation, which was recounted on Facebook (see image) that he was aware of the preemption law, but open carriers would still be kicked out and he expected the district to be sued. If these allegations are true, they are totally irresponsible. Taxpayers should not be forced to bear the burden of officials’ malfeasance.

Shouldn't That Be Illegal?

Nevada hasn't overlooked open carry in public buildings as some sort of bygone tradition that legislators have forgotten about. A look at other states, as we have done with Frontier Carry, will show that in the Intermountain West, the ban on openly carried firearms in public buildings is an exception to the rule. Only Colorado expressly allows a blanket ban of openly carried firearms, while exempting concealed carry in those public buildings without security screening. Texas, which recently decriminalized open carry for licensed individuals, enacted open carry of firearms dating from the 19th Century to prevent blacks from carrying arms.

In fact, an analysis of these states, plus the Idaho Supreme Court case of Re: Brickey reveals that open carry is recognized as the constitutionally protected form of carry. Nevada has prohibited unlicensed concealed carry in one form or another since the early 1900s as have most of our neighboring states. The concealed carry of firearms one hundred years ago was only then just beginning to lose its reputation as something only a thief, bandit, or burglar did. Hiding a gun implied that the person carrying was also trying to conceal criminal intentions. Only with the vilification of guns starting in the 1910s through the 1930s did self-conscious citizens desire to transition to concealed carry.

Yet only rarely are openly carried weapons regulated and almost always in blanket 'all weapons' bans, such as at schools. It is tacitly understood that open carry in all but the most specific of circumstances, is none of the government's business. So no, allowing openly carried weapons in public buildings isn't a legislative oversight, rather it is recognition that government has no power to regulate the open carrying of arms. Nevada's gun laws aren't some error or accident of history.

Members of the public can contact the library district to express their opinion at administration@lvccld.org or 702-507-4400. Operations Director Jennifer Schember can be emailed at Schemberj@lvccld.org.

Oh by the way, learn the truth about:
Vote 'No' on Ballot Question #1 in November


14 comments:

  1. Sorry it had to happen to Michelle, but I'm glad she pursuing the legal resolution! It's almost unbelievable how "easy" they made this lawsuit, too. It's a slam dunk. Your tax dollars at work. I lost count how many illegal things the cops did, too. There is NO requirement to disarm in the parking lot, even to be concealed (with permit) and there is no authority to remove witnesses, including videographers.

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  2. Sorry it had to happen to Michelle, but I'm glad she pursuing the legal resolution! It's almost unbelievable how "easy" they made this lawsuit, too. It's a slam dunk. Your tax dollars at work. I lost count how many illegal things the cops did, too. There is NO requirement to disarm in the parking lot, even to be concealed (with permit) and there is no authority to remove witnesses, including videographers.

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  3. Clark County wants fire arms banned from libraries so they can make for a much safer environment for the gun packing wackos who's dream is to slaughter children with automatic assault rifles. Parents boycott Clark County libraries your children are not safe their. Clark County wants them all to Die!

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  4. Clark County wants fire arms banned from libraries so they can make for a much safer environment for the gun packing wackos who's dream is to slaughter children with automatic assault rifles. Parents boycott Clark County libraries your children are not safe their. Clark County wants them all to Die!

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  5. Bill, I'm going to let your wildly inaccurate and hyperbolic stand just so that everyone can see how wrong and ill-logical you are. First, no-one is carrying an automatic assault rifle; automatic weapons cost upwards of tens of thousands of dollars making them much to valuable to carry. Plus, no one really wants to lug around a long-gun anyhow. Second, perhaps libraries aren't safe, which is why the have armed security guards. Parents shouldn't boycott a library at the advice of an internet troll that a person peacefully carrying a holstered handgun is dangerous. If that was the logic, then perhaps parents should boycott North Las Vegas and the high crime areas of, well, everywhere.

    But really Bill, you're just another anti-gun nut who can't string together a consistent thought together and has to malign gun owners because of your own sick, twisted hatred and desire to fling invective.

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    1. I think there might have been a misunderstanding of Bill's comment. The way I read his post is that Bill is in support of the mom and against the irrational behavior of the library. His comment was saying that by disarming the "good guys", it makes it a safer environment for the bad guys who might come in a library with bad intentions. The reference to "assault weapons" was referring to the idiotic opinion of anti-gunners that mass shootings with "scary looking" weapons is what fuels them to make such stupid rules to ban ALL weapons including us law abiding "good guys". Second, his comment of children not being safe at libraries was intended to show how by banning guns from good guys, it effectively makes it impossible to defend the children from the bad guys that might come into the library and do real harm. Him saying that "Clark County wants them all to die" is meant to say that they'll die at the hands of bad guys with scary looking guns BECAUSE the good guys are not allowed to open carry in the library. This is how I interpreted his comment (someone please correct me if I'm wrong).

      My personal opinion is still of DISBELIEF that the library district can get away with this behavior. No thanks to metro. LVMPD of all people should know the law.

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  6. I think the lawsuit should go after the actions of the security guard real heavily, This will cause the guard company to expose the level of instruction they receive from the library district regarding Open carry. Other points of interest, Michelle was "arrested" (seized) Despite her attorneys claim she wasn't The fact is that a citation is a result of arrest, as the person issuing the citation has to have assembled actual probable cause.

    Trespass is a misdemeanor in NV, Private citizens (like the security guard,) have no arrest powers over misdemeanors. The crux of the lawsuit in my mind comes to this. If Michelle had the ability to continue leaving and didn't, the argument can be made that she intended to "annoy, or vex." If she was detained by the guard, she needs to sue the guard co. for false arrest, as the guard nor the library staff have arrest powers when it comes to a misdemeanor. There are many holes in the complaint, but that one seems the largest at first glance.

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  7. In my opinion: The police totally acted incorrectly and should have stood on the side of Michelle and told the library that "there is no crime being committed here so there is nothing we can do!" What the cops did is totally worthy of a single lawsuit against Metro and one against the library district. I can't even believe Metro acted the way they did it is beyond reason. This is why I wear a bodycam when I OC and everyone else should do the same.

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  8. BTW: In my humble opinion: I hope chellie kicks their fucking asses in court!

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  9. I hope the law suit names the individuals involved and not just the county and METRO. The only way to make government accountable is to go after personally those who give the orders. In this case the manager of the library and the officers involved.

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  10. I agree with "Unknown", if the library district and Metro lose, it's really the citizens that pay taxes that lose. If it's the library employee(s) and Metro officer(s) that lose, maybe some real changes can take place.

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  12. WoW!!!! And We Have had preemption for over a year now... How many month's do they need to distribute the updated law to their officers? And in case of the Library knowingly breaking the law, and then using Null and Void NRS Code to justify it, I hope the Manger that enforces this ILLEGAL policy and not just the Library itself is Sued. I also hope the Individual Guard AND the Guard Company, along with Metro AND THE INVOLVED Police officers are all sued. It seems to me they ended up letting her go because they had a pow wow and realized that she actually broke no laws. Where they messed up was trespassing her. As they never asked her to leave, she had no grounds for being trespassed, and its clear it was done because it was the only legal action the Library could take. Its clear she was discriminated against for exercising her 2nd Amendment AND State Given Right! That needs to be punished to all Parties involved, Individuals and Agency's, so that this type of behavior is discouraged in the future. Also the officer Trying to arrest the friend for Conceal Carry for having a Holster, and for not being filmed when those are 2 things that are clearly not against the law, should be reprimanded. We are the Good Guys who act in the Citizenry's name, when the police aren't there, why would you punish us??? Its an Us Verses Them Mentality, and unfortunately the Us no longer extends to the Law Abiding Citizenry, it only applies to fellow police officers. This is a dangerous mindset kin to Gangsters, and its a practice that needs to be legislated against. We need Peace Officer's that are there to truly protect the Citizens, and act in good faith to deescalate situations, not Officers who only signed up so they could have an outlet for their sexually repressed Child Hoods. I grew up respecting police, but I feel like there are more and more police every day, who no longer respect we the people... That is Dangerous and should be Legislated Against...

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  13. The woman may have a complaint against the library or their agents, but not the police? There are 2 separate arguments at play here. One, did she have a legal right to carry a firearm in the library? Two, did she violate NRS 207.200 for not leaving the library after being duly warned. She was arrested for trespassing, not carrying a firearm. The author of the article was misleading, in my opinion, by paraphrasing only part of NRS 207.200. 1a) states "with intent to vex or annoy" and we're led to believe that is the reason she was arrested. BUT!! Keep reading. There is an "or" right after "vex or annoy". It then reads, "or
    (b) Willfully goes or remains upon any land or in any building after having been warned by the owner or occupant thereof not to trespass. It doesn't appear to me that she was unlawfully detained by police. She refused to leave. That's what generated the call to police. If she wants to pursue a lawsuit against the library district, have at it. You blame the wrong people by trying to blame Metro. It's a shame that law enforcement has so unjustifiably become vilified.

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