Armed Man in Lyon County Antagonizes Utilities Staff, Upset at Reaction and Arrest

Lyon County logo

 According to a random guy on YouTube, rural Lyon County is a hotbed of civil rights violations! Just kidding… I wish it were April Fools’.

As the RGJ reported, a Dayton man annoyed county employees at the Dayton Public Utilities by filming video, not answering reasonable questions, and then got upset when someone who had the phone shoved in her face, quite naturally, took the phone he was filming with away from him. Then he threw a fit, got his phone back, hung around the building, and was arrested.

Anthony Passalacqua, a self-described EMT (he also claimed he was in the Army and “was in law enforcement”), was arrested on charges of brandishing and trespassing. Passalacqua apparently was openly carrying a pistol as well, which Sheriff McNeil affirmed to the RGJ was indeed legal.

“First Amendment Auditors,” as these people who make videos call themselves, engage in entering public buildings or public spaces and filming until they are either confronted by police or security, or someone asks them what they are doing. Usually, the “auditor’s” obdurately rude reaction escalates the encounter into what they term a “violation”.

The video is cringeworthy and the comments even worse. After strolling around the parking lot, describing where he is, Passalacqua enters the office.

Anthony Passalacqua, c. Lyon County Sheriff via RGJ

He is fairly quickly questioned as to why he is filming. When met by the officer manager, he immediately goes outside as if he was intimidated. Instead of saying “First Amendment Audit, ma’am,” instead he is defensive, asks his own questions, such as “Who are you that I have to answer to?”, and reiterates essentially “you’re in public, this is a public building,” etc. One of his snarky rejoinders is: “Why don’t you write to Congress and tell them to change the First Amendment?”

Passalacqua called his “audit” a “fail” because someone questioned why he was doing and why. I guess with the bar that low, it makes all the open carry clarification encounters that end in “sorry, you were right,” failures too. Education in pursuit of compliance does not seem to be one of the “auditors’” interests, a marked difference between these YouTubers and gun rights advocates.

Things go pear-shaped when Passalacqua  goes into a second office. Inside, he puts the camera very close to the woman’s face, she pushes the camera away. A natural reaction, I would argue. He claimed, via text on the video, that she was blocking his exit, and immediately screams “Do not touch me!” Only audio of this incident is available and it is important to note that the video was edited. During the “scuffle” Passalacqua screams, “Do not approach me, you are making me in fear for my life.” Note: taking a phone from someone does not constitute a threat to life nor does it meet the definition of “theft.”

Passalacqua also said: “Nevada law says that in the presence of two or more people I’m allowed to defend myself.” That is incorrect. He is misquoting one of the brandishing statutes (which ironically can be construed against Passalacqua). It is, in fact, illegal to cause a disturbance in a public building and given the Passalacqua’s behavior, I would bet a jury would find that he precipitated the entire incident and overreacted to any alleged wrong done to him.

Mike Workman, Utilities Director, came out and ensured the phone is returned within about a minute. Rightly, Workman calls out Passalacqua’s behavior, saying “You can’t treat our staff that way.” Workman had a very valid point. Passalacqua was upset that the staff asked reasonable questions about what he was doing, which Passalacqua refused to answer. That is his right. However, the disconnect is in a total disrespect for civility. These “audits” are about causing trouble, not finding it. Human nature and honest mistakes of law or facts does not constitute tyranny. It would be entirely another thing for staff to get upset if Passalacqua was filming them fudging overtime slips or stuffing petty cash into their pockets.

The rabid anti-government “First Amendment audit” crowd would have you believe that merely asking a question about someone filming in a frankly suspicious manner is a violation of the Constitution. They probably think security asking a guy who set up a camera tripod in the State Museum to take it down for safety reasons is worthy of treason charges. I do not think that office workers, even though they are public employees, should be held to the same standards of calm circumspection as police officers are.

The office manager articulates her concerns as a person—not an employee of the government—but an average human being who has a legitimate concern about her safety. Is this a disgruntled customer, angry over his increased sewer rates, who is going to follow staff home? “Who are you and why are you filming?” is a lawful question. It’s not violation to ask and entirely reasonable to expect a satisfactory explanation.

Normal folks, unware of this person or these “audits” would instinctively be unnerved and think of their safety. Passalacqua could have honestly answered and left it at that. Had Passalacqua stated he was seeing how staff reacted to his filming as part of a “First Amendment audit,” that likely would have been the end of it, aside from raised eyebrows and stifled giggles. But he didn’t.

The only thing I would consider problematic on the part of the county employees is taking the camera, but that is a natural response under the circumstances. A cop should know better; an officer worker who just happens to work for the county does not have that higher expectation of decorum. Given the confrontational and suspicious nature of the individual, I can excuse the behavior, which is something that would almost certainly happen between exclusively private individuals.

I would argue that asking what someone is doing is a minimal intrusion into their privacy and upon their supposed right to film, additionally, if they refused to answer, in these days of mass shootings and terrorist attacks, that lacking an answer such as “First Amendment audit, ma’am,” would constitute reasonable suspicion (at least the encounter) that such a person may be up to no good.

For example, other than police car enthusiasts or “auditors,” what other good explanation is there for videotaping the secure parking lot and exit of a police station? A reasonable person would give an answer satisfactory enough that the average person would recognize the person isn’t planning to ambush officers as they leave on patrol or shoot up county offices.

Frankly, if this man was doing a “First Amendment audit” of his local park by intrusively filming young girls, he would have gotten off light if all that happened was his phone was snatched away. Government officials should take note not to grab the camera, if only to deprive inconsiderate individuals like this anymore ammo.

Per Passalacqua’s YouTube video page, he claims that deputies were concerned his phone was a disguised pistol (they do exist). This was an overstatement, but they also did not shoot the armed man and returned his phone, video intact. Being “aggressive and hostile” will result in one getting zero leeway from police. In other words, play stupid games, win stupid prizes. Don’t be a jerk and you won’t be treated like one.

“First Amendment Auditors” often display incredible rudeness and indifference to polite social behavior. Passalacqua was no different. While the First Amendment excuses all kinds of words, one still owes his fellow citizens basic common courtesies; none of which Passalacqua exhibited. He became enraged that his discourteous and bellicose attitude and actions naturally inflamed human emotion and provoked a reaction. He went looking for trouble and provided the ingredients to cause it.

I have encountered these kinds of people before; their sole intent is to antagonize law enforcement, public officials, etc. into something salacious their rabid YouTube fans can get excited over. “Auditors” rely on the presence of the camera, their out-of-place appearance in whatever particular space, and their intransigent behavior to generate a response that, to them, constitutes a “violation.” Asking a question constitutes a “violation”, ignoring the “auditor’s” question constitutes a “violation”, standing nearby and watching constitutes a “violation”…

One YouTube commentator called for Mr. Workman to be executed. Nothing illegal happened in this video other than Passalacqua’s own behavior. These people hate government so much that they strain at gnats to find something to rail against. These videos are nothing more than fuel for ignorant, anti-government hatred; pornography for their sedition fantasies.

At the end of the day, the rule of law is nice, but it is nothing more than an artificial human construct. Our ability to freely film, to yell, and to not answer questions relies on the simple fact that we as a whole reserve those rights for when they are necessary and exercise them courteously. Bad behavior makes it impossible for the rest of us to have nice things. The history of gun control is rooted firmly to this principle; sure, we have Second Amendment, but a violence society or notorious killings get us bad gun laws.

Behavior like this impairs the ability to correct actual violations of important civil rights, particularly gun rights. It did not help gun rights supporters that Passalacqua was armed, but he is not characteristic of gun rights advocates. Noted advocates in Nevada also film, but with discreet, purpose-made body cameras and are always respectful, while maintaining their rights.

Of course, the gun rights advocate’s goal is to seek correction to actual injustices rather than from a self-serving motivation to portray oneself as a victim. Passalacqua’s passion, tempered with knowledge and respect for his fellow citizens, is badly needed in the gun rights community, where we fight actual willful and wanton violations of the law where appointed officials laugh in our faces.

Hopefully, in the wake of this incident and the internet freedom fighters’ threats, Lyon County doesn’t need to post stupid “no guns” signs (which prohibit concealed, but not open carry). If they do, the blame lies with Passalacqua.

Nothing untoward happened here; a man with a camera and a dangerously little amount of knowledge about his rights, and plenty of folks online cheering him on, made a little trouble. In a time where true tyranny is peeking over the horizon, and troubles are rearing their ugly head, we do not need a normal reaction to boorish behavior conflated into government malfeasance.

The History of NRS 202.3673 and Open Carry in Public Buildings

Editor's Note: This article deals largely with NRS 202.3673. For a general overview of firearms in public buildings, follow this link to NevadaCarry.org

NRS 202.3673, a law which prohibits concealed firearm permitted from possessing firearms in certain buildings, is a confusing law at first glance. It has not been helped by a multitude of changes since its creation in 1995. Despite common misunderstandings by the public and government alike, the law does not prohibit openly carried firearms in public buildings.

The law currently prohibits firearms in public buildings with signs or metal detectors at each public entrance, at airports, and schools, colleges/universities, and childcare facilities (the latter having their own law, NRS 202.265). Openly carried firearms are not prohibited in most state and local public buildings. In fact, it seems to be the unwritten understanding that open carry cannot be strictly regulated as it is the constitutionally protected form of carrying arms. Rather than an oversight or a loophole, this is deliberate obedience to the constitutional right to bear arms, recognized not only by Nevada, but by most states.

In 2015, the legislature faced this question and the legality of open carry was affirmed by the Legislative Counsel Bureau. It is important to note that the legislators, neither Republican or Democrat, moved to enact a ban, but rather chose to repeal and prohibit local firearm regulations with SB 175/240. They understand that constitutionally, they do not have the ability to legislate on that matter.

An Idaho case, Re: Brickey, threw out a city ordinance that banned the carrying of any deadly weapon in any manner, openly or concealed. The state Supreme Court found that this was unconstitutional, in light of Idaho’s constitution, which explicitly authorizes the regulation of carrying concealed weapons only.

Nevada has never had a law prohibiting openly carried firearms anywhere or within public buildings. The only blanket provision under state law is NRS 202.265, which applies to school grounds, and meetings of the legislature, NRS 218A.905. Prior to 1995, NRS 202.3673, firearms in public buildings, did not exist within the statutes. As far as research indicates, there was no prior law on the topic.

Before 1995, Nevada was a may issue state for concealed firearm permits, at the sole discretion of the sheriff to issue or not. Open carry was the only method available to the public at large in some counties. In 1995, Nevada became a shall issue state and a perceived need to regulate firearms in public buildings was felt, leading to the establishment of 202.3673. Interestingly, 202.3673 only prohibits firearms in public buildings by concealed firearm permittee. For someone to conceal without a permit, it would be a felony violation of NRS 202.350, but not of 202.3673.

The 1995 amendment banned concealed firearms in virtually every type of public building (SB 299). In 1997, the law made a minor change: "must" to "shall" (AB 141). Then, in 1999, the law changed to only locations with signs and metal detectors at each public entrance, plus airports, schools, and colleges (AB 166). This change stood until 2007. In 2007, the current iteration of the law was enacted pursuant to SB 354, which also affected NRS 202.265 which bans firearms at schools. a provision was added to cover childcare centers after an unprofessional bounty hunter raided a daycare and scared the children.

Part of the incorrect signage and the confusion in institutional memory can be blamed on the changes to the law over the years coupled with a misunderstanding that open carry is indeed legal and that people do actually carry that way. While many ill-informed government employees have had ‘no guns’ signs posted and many stating a total prohibition remain, other government agencies, most notably the DMV, have changed their policies, educated staff and security, and have signs correctly stating that only concealed firearms are prohibited.

William Russell, ca. 1890s

For a long time, well up until the mid-20^th Century, concealed carry was considered dishonest and something only criminals did. Many laws prohibited concealed carry because of its association with criminals, which carries over in one form of regulation or another to many states. Researching original textual examples of this bias is not complete, but many examples from newspapers and literature of nearly more than a century old malign concealed carry.

Perhaps as modern communications and law enforcement developed, a larger population led to a decrease in the ‘Wild West’ myths. People felt safer and didn’t feel a need to be armed. Guns, not just concealed pistols, were seen as something bad. Instead of being a form of protection, as a majority of Americans seem them today, carrying a gun was seen as outdated, paranoid, or criminal. It wasn’t until the shall issue wave of the 1990s that opinions began to change and concealed firearm permits became popular. Open carry naturally declined as people simply didn’t want others to know they were carrying guns, as if someone was going to judge them for it or be treated differently. In fact, that’s one of the reason most people choose not to openly carry a firearm.

Even so, open carry has been popular in the western states and Nevada. Even California has rural open carry and had loaded open carry until a few years ago. Many native Nevadans have been openly carrying firearms since they were teenagers here even in North Las Vegas without once having an issue.

Other States

In other states, the laws vary, but in the majority of the nine states as part of our sister site, Frontier Carry, you find that open carry is often protected and relatively unregulated. The western states were very similar, all on the expanding American frontier and facing the same set of challenges common to anyone who has watched a western. All entered the union as either states or territories in the same general period of time. Since the similarities between states were so many, many constitutional and statutory provisions are the same, sometimes word for word, and the considerations behind them are built on the same foundations of logic.

Only Arizona, Colorado, and Montana allow local control over openly carried firearms in most public buildings or areas, while Washington has a few more prohibited locations, but is largely unregulated. Seattle had to end its challenge to guns in their libraries because of the strictness of Washington’s state preemption law which also ended a ban on guns in local parks.

Utah has the fewest prohibited areas, apparently in the union. Utah law allows for concealed or open carry, with a permit, in virtually every place save for courthouses and detention-type facilities, including schools and universities/colleges. Utah and Arizona (where local governments can ban guns in public buildings) require secure storage at public buildings where guns are prohibited. Wyoming only bans openly carried firearms in public buildings or the state capitol.

Idaho, Nevada, and New Mexico, have essentially similar laws and outright bans of local regulation on open carry. Further afield and in a similar vein, Michigan has a similar preemption law, which lead to an overturn of the Lansing Capitol Area Library District’s ban on firearms.

Interestingly, Colorado is a reverse of most frontier states and allows for municipalities to ban open carry, but not concealed carry, except in public buildings with security screening and metal detectors. Last year, the Denver Science Museum had to change its policy banning concealed firearms because it lacked metal detectors and security screening as required by law. Denver, under questionable state Supreme Court rulings, bans open carry wholesale, the only municipality to do so.

However, because of the different attitudes and experiences, one finds interesting results between open carry (which cannot be strictly regulated) and concealed carry. For instance in Montana, one can openly carry a gun into a bank, but it is illegal to carry a concealed firearm into the bank, even with a permit. That leads to a lot of misunderstandings because businesses don’t know the laws and police are under-educated on the legality of open carry.

Changes Need to End Abuses

The purpose of this article is not to detail the abuses of the right to bear arms by public agencies. However, the lack of understanding about the armed public and the need for effective self-defense bears addressing. An outdated understanding of concealed carry and the propensities of legally armed citizens should not be permitted to be part of state law. Nor should rogue government employees with connections in Carson City or the court system be allowed to further trample citizen’s gun rights because citizens took a stand against their petty tyranny.

Under Nevada law, NRS 202.3673 does not prohibit openly carried firearms inside jails, police stations, prisons, or courthouses, though it would ostensibly be legal to prohibit firearms in controlled, non-public areas except by authorized personnel. One can even legally openly carry a gun into a courthouse, although without a doubt, security or the bailiffs will stop the person anyway (and they have). While the courts’ position is justified, why must they disobey the laws they enforce in the same building?

The only argument that can be made to prohibit legally possessed firearms by law abiding citizens in certain locations are based upon actual, verifiable threats, or a past history, of violence coupled with the real means to stop a violent attacker (armed security). Examples would be courthouses, jails, prisons, mental hospitals, and high-value terrorist targets like the Hoover Dam. All feature armed security and/or police and have security screening. Such locations should be mandated to provide secure storage for firearms. Utah is a successful example of this.

Actual need and means to ensure public safety are the only grounds for ever banning someone who can legally carry a gun from doing so and thus protecting themselves. This is a fair balance between a legitimate need to keep guns out of the hands of someone plotting violence while respecting both the right to keep and bear arms, while not abusing the logic of the law.

 A public building is not some inherently safe space where violence will not happen and legal gun owners do not, as a general rule, present a danger for carrying guns. Examples from private property similar to public buildings show there is no real danger from an armed citizenry. No one, having completed jury duty or filing a restraining order, should have to walk through downtown Las Vegas back to their car parked at the city garage on Fremont Street unarmed if they choose not to, simply because security will not permit open carry or provide safe storage.

Neither should a concealed firearm, carried legally, be treated differently than open carry. American’s attitudes on concealed carry have changed. Concealed carry is the preferred method of carry and is no longer associated with criminality. A criminal will carry a concealed weapon without a permit or into a public building regardless of any law. Mothers, fathers, and good citizens should not be disarmed simply because a public agency disagrees with that person’s chosen method of carry.

Rather than attempt to outright ban firearms in public buildings, which would be wholly unconstitutional on a state and federal basis, NRS 202.3673 should be amended to prohibit firearms in only courthouses, mental institutions, and the non-public, controlled areas of jails and prisons. Additionally, safe storage lockers or a ‘gun check’ should be mandated at the entrance to all such locations.

Legislative History

SB 299, 1995

NRS 202.3673 was enacted in 1995 with the passage of SB 299, Nevada’s shall issue concealed carry law. While the record leaves little to no mention, the second reprint of the bill shows that it was amended to incorporate 202.3673’s prohibition on carrying concealed firearms in public buildings. Later testimony indicates there was some concern that licensed and background checked citizens would create some sort of heightened threat of violence, which over 20 years of experience has shown to be false.

Apparently, open carry, which was the method available to any Nevadan who could possess a firearm, was not a worrisome concern for the legislature at the time, so there was no prohibition of it. Many of the legislators were life-long Nevadans and many from rural areas, so even if they hadn’t experienced open carry first hand, it was mentioned in the hearings.

"Mr. Hertz [Chairman, Douglas County Chapter of American Pistol &  Rifle Association] stated he believed there were sheriffs in Douglas and other counties '...who are denying an application based on the constitution which gives the people the right to carry a gun openly.'" (SB 299, 4/21/95 Sen. Jud. Com.)

The NRA representative at the time stated the organization’s then-current stance on open carry: 

“Mr. Griisser responded it is the society we live in today.  If a gun is carried on your hip walking down the streets of Las Vegas or Reno, any city, there would be undue stigma attached.  Mr. Griisser stated this may be the West, but it certainly is not the wild West.  Mr. Griisser noted he lived in Phoenix and if he were to carry open there, the gang bangers would try to provoke an incident.  Mr. Goldwater surmised the deterrent effect is enhanced by having a concealed weapon, but it is exacerbated when it is out in the open.” (6/22/95 Asm. Jud. Com) 

Clearly, there was no concern about a person who openly displayed to the public that they were armed, just as there was not in 2015.

AB 166, 1999 (added “signs or metal detectors” language)

From the Assembly Judiciary Committee, 2/26/99 

“[Assemblyman Lynn Hettrick] The intent of the existing language was to make those buildings safer and he argued the opposite was true. He noted statistics proved permittees were not the source of firearm related violence in public buildings. He opined the language increased the risk of crime in a public building because most criminals would not go to a private business or home where there might be a person proficient in the use of firearms. A criminal would most likely go to a public building where, by existing state law, you would be guaranteed a person was not carrying a weapon and that did not make sense to him.
 “Mr. Hettrick thought, since statistics proved most CCW permittees were not a safety issue, most building administrators would add metal detectors or post signs so it would extend the deterrent and safety factor of CCWP law to public buildings, and he believed it should. He addressed those public entities who felt the provision would require them to post signs on all their buildings, and reminded them national statistics proved their buildings would be safer if they allowed legal permittees to carry. He stressed the only people who would not obey the law would be people who carried illegally. Mr. Hettrick indicated if metal detectors or signs were used, by adding the option in subsection (b), section 5, regarding obtaining written permission, a deterrent was added because a potential criminal going into a public building would not know if a person had permission to carry inside the building. Adding the right of permission extended metal detectors and posted signs as right of protection.” 

Senate Judiciary Committee 4/5/99

The airports amendment was proposed by Clark County Airports. 

“Assemblyman Hettrick noted that just like any public building, except for the [terminals], which are federally regulated, […]. He said a review of the statistics shows a public building is safer when CCWP is allowed. He expressed concern that if exemptions are made, it could get out of hand. He said the statistics on 30 states that have CCWP show only 4 states have restrictions on airports; the rest of the airports are open public buildings. Assemblyman Hettrick emphasized he did not see a need to exempt airports. He suggested the people on the aviation board need to see the statistics, and then they would realize the airport would be safer if CCWP were allowed, not more dangerous.
 “Ivan R. Ashleman, II, Lobbyist, McCarran International Airport, and Clark County, stated the crowds at the airports look like a mob scene, it makes it difficult to post signs that will be seen, let alone read. He said for example, the numerous large ‘Stand to the Right’ signs posted along the people walkways, plus constant public address announcements, and people are still all over the walkways; the general public pays no attention. He stressed that is why the aviation board believes the signs prohibiting CCWP will be ineffective; and if they are boarding a flight, they will have to surrender the firearm anyway.
 “Senator Care commented he has lived in Las Vegas since 1979 and cannot recall any incident at McCarran International Airport that involved a firearm. Mr. Ashleman responded security routinely takes firearms from people at the gates, as well as other types of weapons. He noted the airport has a lot of security and does not experience a lot of crime problems.
 “Chairman Washington wondered since statistically there is little problem at the airports, would it be better to allow the counties to deal with the CCWP and public buildings issue at the local level in placing signs and developing ordinances. Assemblyman Hettrick emphasized it could get out of hand to allow each county to establish ordinances [emphasis added]. […] He said what people seem to not understand is those who get a permit feel some need for personal safety. The permittee is not going to do anything to lose that permit, and that is why these public buildings are ultimately safer if the CCWP holders are allowed to go in and out of the buildings. He stressed this bill will do nothing to adversely affect safety in public buildings.
 “Assemblyman Hettrick noted there is nothing in this bill that prevents the airport from putting up a sign right now. He said if the contention is nobody reads signs, then why bother with any signs. He called attention to the realization that legal people are honest people.” 

SB 354, 2007

This bill was intended to strengthen the prohibition of firearms on school campuses by changing the violation from a gross misdemeanor to a felony. This was as a result of an increase of children bringing guns to school. Democratic Assemblywoman Debbie Smith was concerned over an incident with bounty hunters at a daycare. Her statement at a hearing of the Assembly Judiciary Committee: 

“[…]I was contacted by a daycare provider who is a member of that organization regarding something that had taken place at her facility. She was very upset because some bounty hunters came into her facility with guns drawn, looking for someone. They were actually looking for the mother of one of the children being cared for, and the mother was not the person they were ultimately after, but they were trying to get some information. The daycare provider was dismayed to find that their actions were not illegal. It was a horrible thing that they endured over a significant period of time; it did not just take place in a few moments. I was surprised when I contacted our Research staff and found that child-care facilities are not in the statute as areas where guns cannot be carried.” 

Why was this not dealt with at a regulatory level? All this law would have done is make it so the bounty hunters could have been arrested; it would not have corrected their poor judgement. Nor would it keep criminals from bringing guns into child care facilities. Rather, it disarms mom and dad who come to pick up their kids. Technically, they could be arrested for having a gun in the parking lot of their daycare. This was a terrifying incident to the staff and children for sure, and a monumental failure on the part of the bounty hunters, but not a reason to disarm citizens on private property. Once again, a Democrat over-reacted and legislators caved in ‘for the children.’