By Riley Snyder
The Nevada Independent
Individuals who complete a mental health diversion court program cannot be charged under a state law prohibiting mentally ill individuals from owning or possessing firearms, the state Supreme Court ordered in a recent ruling.
An opinion authored by a threemember panel composed of Justices Kristina Pickering, Mark Gibbons and James Hardesty last week reversed a lower court’s conviction of Ian Andre Hager, a Reno man convicted of violating a state law that prohibits individuals adjudicated as mentally ill or are found to be unlawfully using illegal drugs from possessing firearms.
The ruling by the court fleshes out the section of state law governing the groups of individuals in the state prohibited from owning or possessing a firearm and could potentially affect the number of gun sales rejected under Nevada’s prohibition on completing legal gun sales to anyone “adjudicated” as mentally ill.
The case revolves around Hager, who in 2013 was arrested and pled guilty to a charge of illegally carrying a concealed weapon in Humboldt County. Hager was referred to a mental health specialty court program in Washoe County, where a licensed professional diagnosed him with post-traumatic stress disorder (PTSD) “associated with traumatic family events.”
Hager successfully completed the program, which included random drug and alcohol tests, in May 2014, and he was able to successfully recover his seized firearms by August 2015. Police responded at least twice to disturbances at Hager’s residence in 2015 and again seized his firearms, but he was able to successfully petition to regain ownership after both incidents.
His troubles began anew in February 2016, when Hager contacted a Reno Police Department detective to discuss a past investigation into the death of his older brother, who died in 2012. According to court records, Hager sent the detective a link to his Facebook page that showed a video of Hager “railing against the police for incompetence in attributing his brother’s death to an accidental overdose,” while displaying a “baggy of narcotics” and sniffing them to “dramatize how much methamphetamine a person can consume without overdosing.” Several firearms were visible in the background of the video.
Police raided Hager’s home and seized the firearms, finding a glass pipe and empty baggies, but no trace of a controlled substance. Hager told police the substance in the video was meth, but later told a jury that the substance was salt. He was convicted on six counts of unlawful possession of a firearm, three related to controlled substances and three related to his past time in the mental health diversion program, but he appealed to the state Supreme Court in 2017.
In their order, the justices wrote that the section of state law in question required an individual to have been adjudicated as mentally ill or committed to a facility by a court; a voluntary diversion to a treatment program did not meet that higher threshold for taking away gun ownership rights.
“To be sure, mental health court is supervised by a judge, who has the discretion to assign or refuse to assign a defendant to the program,” the justices wrote in their 20-page order. “But participation in the program is voluntary; a defendant may not be diverted to mental health court absent consent.”
The court instead wrote that in the absence of the Legislature defining what “adjudicated as mentally ill” should entail, it would interpret the law to require a judicial decision-maker and deliberative proceeding with “some form of due process.” The justices wrote that the process for voluntarily enrolling in a mental health diversion court, which only requires the appearance of mental illness or intellectual disabilities, did not reach that higher standard.
“…As Hager’s paperwork and the trial testimony established, Hager’s assignment to Washoe County’s mental health court was documented not by an order, decree, or findings signed by a judge, but rather by an ‘acceptance letter’ signed by a specialty courts officer,” the order stated.
The court also noted that the law did not require a person enrolled in a mental health diversion program to have their records and names transmitted to the state system for background checks on firearm purchases, and instead requires criminal history records to be sealed if a person successfully completes the program. A person formally adjudicated as mentally ill by a judge would have their information transmitted to the background check database and would be unable to purchase a gun.
Nevada routinely rejects around 1,800 background checks every year from several classes of prohibited individuals, including fugitives from justice, individuals under a court-ordered restraining order, people convicted of misdemeanor domestic violence or who have been convicted of a felony with a sentence exceeding one year. In the last four years, around 60 to 70 people were annually stopped from buying a gun in the state because they had previously been adjudicated as mentally ill.
But those numbers are likely to increase after 2019, when a law approved by Democratic legislators and signed by Gov. Steve Sisolak to expand gun background checks to private gun sales and transfers. Background checks are currently only required for guns purchased by a federally licensed firearms dealer.
Although the court order reversed three of the criminal counts against Hager, it ordered a new trial on the other three accounts of possession of a weapon as an “addict” or “unlawful user” of controlled substances.
The court found that evidence by the state was “enough” to show that Hager either maintained a prior addiction to methamphetamine or was using the drug while owning firearms, but the order found that an instruction provided to the jury defining an “unlawful user” as any person who used a controlled substance was too broad.
Though the court declined to rule on whether a single incident of drug use was enough to establish a person as an “unlawful user” and thus prohibited from owning firearms, it did say that the jury instruction as written was overly vague and that a new trial was necessary.
“Because doubt exists as to whether a correctly instructed jury would have convicted Hager, it is not clear beyond a reasonable doubt that the misstatement of law in the instruction was harmless.”
This article was reprinted with permission by The Nevada Independent. Visit them online at thenevadaindependent.com.