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 19^th 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.

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