Opposition Brief — Zoie H., Petitioner v. Nebraska

Supreme Court briefAug 6, 2020

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No. 19-1418

In the Supreme Court of the United States

_____________________________

ZOIE H.,

Petitioner,

STATE OF NEBRASKA,

_____________________________

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Nebraska

______________________________

RESPONDENT’S BRIEF IN OPPOSITION

______________________________

DOUGLAS J. PETERSON

Attorney General of Nebraska

DAVID T. BYDALEK

Chief Deputy Attorney General

JAMES A. CAMPBELL

Solicitor General

Counsel of Record

OFFICE OF THE NEBRASKA

ATTORNEY GENERAL

2115 State Capitol

Lincoln, NE 68509

(402) 471-2682

jim.campbell@nebraska.gov

Counsel for Respondent State of Nebraska

QUESTION PRESENTED

In the past, serious juvenile offenders in Nebraska

could obtain and possess firearms as soon as they

became adults. In 2018, Nebraska took a measured

approach to address the significant risks that this

posed to public safety—an approach unlike those

adopted in practically every other State. It passed a

statute that (1) temporarily suspends serious juvenile

offenders from possessing firearms for their first six

years of adulthood and (2) permits them to apply for

reinstatement even before they become adults.

Because juvenile proceedings in Nebraska are

rehabilitative (and not punitive) in nature, the adjudication in this case did not include incarceration as a

possible penalty. The only consequences that petitioner faced were various forms of juvenile rehabilitation and the temporary firearm suspension. She

insists that the suspension entitles her to a jury trial.

The Supreme Court of Nebraska rejected that

argument. Sixth Amendment analysis considers only

the punitive consequences of an adjudication. That

does not include the temporary firearm suspension at

issue here, the court below held, because it is not

punishment imposed for this juvenile adjudication.

The question presented, which no other appellate

court in the country has decided, is:

Whether a statute that temporarily suspends serious juvenile offenders from possessing firearms

for the first six years of adulthood (and permits

reinstatement even before adulthood) creates a

right to a jury trial in a juvenile proceeding that

does not authorize incarceration.

STATEMENT OF RELATED PROCEEDINGS

The juvenile case involving petitioner—Case No.

JV17-372 in the Separate Juvenile Court in Lancaster

County, Nebraska—includes multiple proceedings. In

the proceeding on direct appeal here, the juvenile

court entered an adjudication order against petitioner

for attempted theft of a car worth more than $5,000.

Then in a subsequent related proceeding in that same

case, petitioner admitted to a different theft involving

more than $5,000, and the juvenile court entered an

adjudication order against her. The petition and order

from this subsequent related proceeding are included

in this brief at BIO App. 1a–7a.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

STATEMENT OF RELATED PROCEEDINGS ....... ii

TABLE OF AUTHORITIES ...................................... v

INTRODUCTION ...................................................... 1

OPINION BELOW ..................................................... 1

JURISDICTION ......................................................... 1

STATEMENT ............................................................. 2

REASONS FOR DENYING THE PETITION........... 8

Petitioner’s asserted split is illusory because

no other appellate court has addressed the

juvenile-specific question resolved below. ........ 11

II. This case is a bad vehicle. ................................. 17

A. Serious questions surround the justiciability of this appeal. ................................... 17

B. A juvenile case like this one is a poor

vehicle for deciding offender-in-possession

issues. ........................................................... 21

III. The decision below is correct............................. 26

CONCLUSION ......................................................... 32

APPENDIX

The State’s Sixth Supplemental Petition

filed against Petitioner (Redacted) ................... 1a

Juvenile Court’s Order Adjudicating the

State’s Sixth Supplemental Petition

(Redacted) .......................................................... 4a

Chart of State Juvenile-Offender-inPossession Statutes and Juvenile Jury

Laws ................................................................... 8a

TABLE OF AUTHORITIES

Cases

Andersen v. Eighth Judicial District Court,

448 P.3d 1120 (Nev. 2019)............................. passim

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ................................................ 19

Baldwin v. New York,

399 U.S 66 (1970) ................................................. 25

Blanton v. City of North Las Vegas,

489 U.S. 538 (1989) ....................................... passim

Clapper v. Amnesty International USA,

568 U.S. 398 (2013) .............................................. 17

Daimler-Chrysler Corp. v. Cuno,

547 U.S. 332 (2006) .............................................. 17

District of Columbia v. Heller,

554 U.S. 570 (2008) .............................................. 24

Elrod v. Burns,

427 U.S. 347 (1976) .............................................. 15

Frank v. United States,

395 U.S. 147 (1969) .............................................. 31

Hollingsworth v. Perry,

570 U.S. 693 (2013) .............................................. 17

In re Interest of Brandon M.,

727 N.W.2d 230 (Neb. 2007) .................................. 2

In re Laurance S.,

742 N.W.2d 484 (Neb. 2007) .............................. 2, 8

Jordan v. De George,

341 U.S. 223 (1951) .............................................. 16

Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963) .................................. 26, 27, 28

Lewis v. United States,

445 U.S. 55 (1980) .......................................... 25, 28

Lewis v. United States,

518 U.S. 322 (1996) .............................................. 14

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ........................................ 17, 18

McDonald v. City of Chicago,

561 U.S. 742 (2010) .............................................. 24

McKeiver v. Pennsylvania,

403 U.S. 528 (1971) .............................12, 13, 21, 22

National Park Hospital Association v.

Department of Interior,

538 U.S. 803 (2003) .............................................. 20

Schall v. Martin,

467 U.S. 253 (1984) .............................12, 13, 24, 27

Spencer v. Kemna,

523 U.S. 1 (1998) .................................................. 19

State ex rel. McDougall v. Strohson (Cantrell),

945 P.2d 1251 (Ariz. 1997) ................................... 16

United States v. Chavez,

204 F.3d 1305 (11th Cir. 2000) ...................... 15, 29

United States v. Combs,

No. 8:05CR271, 2005 WL 3262983 (D. Neb.

Dec. 1, 2005) ......................................................... 15

United States v. Jardee,

No. 4:09-MJ-091, 2010 WL 565242 (D.N.D.

Feb. 12, 2010)........................................................ 15

vii

United States v. Rene. E.,

583 F.3d 8 (1st Cir. 2009) ..................................... 22

United States v. Snow,

No. 11-0149-SU, 2011 WL 5025535 (D. Or.

Oct. 21, 2011) ........................................................ 15

Statutes

28 U.S.C. §1257(a)...................................................... 1

Del. Code Ann. tit. 11, §1448(a)(4) .......................... 23

Fla. Stat. §790.23(1)(b) ............................................ 23

Haw. Rev. Stat. §134-7(d) ........................................ 23

Neb. Rev. Stat. §28-105(1) ..................................... 4, 5

Neb. Rev. Stat. §28-201 ............................................. 6

Neb. Rev. Stat. §28-511 ......................................... 6, 7

Neb. Rev. Stat. §28-518 ......................................... 6, 7

Neb. Rev. Stat. §28-1204 ................................. 2, 4, 18

Neb. Rev. Stat. §28-1204.01............................. 2, 4, 18

Neb. Rev. Stat. §28-1204.05(1) ........................ 3, 4, 27

Neb. Rev. Stat. §28-1204.05(2) .................................. 4

Neb. Rev. Stat. §28-1204.05(4)(a) .................. 3, 18, 27

Neb. Rev. Stat. §28-1204.05(4)(b)(ii) ................... 4, 27

Neb. Rev. Stat. §28-1204.05(4)(c) ........................ 4, 27

Neb. Rev. Stat. §28-1206(1)(a)(i) ............................... 4

Neb. Rev. Stat. §28-1206(3)(b) ................................... 5

Neb. Rev. Stat. §43-246 ............................................. 2

Neb. Rev. Stat. §43-246(1) ......................................... 2

viii

Neb. Rev. Stat. §43-246(9) ........................................ 2

Neb. Rev. Stat. §43-261.01(1) .................................... 5

Neb. Rev. Stat. §43-280............................................ 19

Neb. Rev. Stat. §83-1,130(2) ...................................... 4

Or. Rev. Stat. §166.250(1)(c)(B) ............................... 23

Utah Code Ann. §76-10-503(1)(b)(ii) ....................... 23

Other Authorities

Categories of Prohibited People: State by State,

Giffords Law Center (Nov. 8, 2019),

https://bit.ly/39fhK3A ........................................... 23

Emily Ahdieh, The Deportation Trigger:

Collateral Consequences and the

Constitutional Right to A Trial by Jury,

30 Geo. Mason U. Civ. Rt L.J. 65 (2019) ............. 30

Juvenile Right to Jury Trial Chart, National

Juvenile Defender Center (July 17, 2014),

https://bit.ly/3jBYzpE............................................23

Nebraska Unicameral Floor Debate Transcript

(Mar. 22, 2018),

https://bit.ly/3h6iZFg ........................................ 3, 28

Nebraska Unicameral Judiciary Committee

Transcript (Feb. 8, 2018),

https://bit.ly/305oDjT........................................ 3, 28

Paul T. Crane, Incorporating Collateral

Consequences into Criminal Procedure,

54 Wake Forest L. Rev. 1 (2019) .......................... 30

INTRODUCTION

No other appellate court anywhere in the nation

has decided the question addressed below: whether a

statute that temporarily suspends serious juvenile

offenders from possessing firearms creates a right to

a jury trial in a juvenile proceeding. This undeveloped

issue does not warrant the Court’s attention.

This case is also a bad vehicle for addressing that

question. Serious justiciability concerns raise doubts

about whether the Court can even reach the merits.

During this appeal, petitioner committed another

felony, admitted to it, and was adjudicated for it. So

she is subject to the firearm suspension regardless of

the outcome of this case. Because the Court cannot

redress the asserted injury, petitioner lacks appellate

standing, and her claims are moot. The petition

should be denied.

OPINION BELOW

The opinion of the Supreme Court of Nebraska is

reported at 937 N.W.2d 801 and appears at Pet. App.

1–18.

JURISDICTION

The Supreme Court of Nebraska issued its

opinion on January 24, 2020. Petitioner filed her

petition on June 22, 2020, consistent with this Court’s

order allowing petitions for a writ of certiorari 150

days after the lower-court judgment. Petitioner seeks

to invoke this Court’s jurisdiction under 28 U.S.C.

§1257(a). But as explained below, it is doubtful that

this case is justiciable on appeal.

STATEMENT

A. Relevant Nebraska Law. Like most States,

Nebraska has a separate juvenile justice system that

balances two important interests: (1) the rehabilitation and welfare of juveniles; and (2) the protection

and safety of the public. E.g., Neb. Rev. Stat. §§43-246

& 43-246(1) (the juvenile code seeks (1) to support the

“development” of juveniles and their “well-being” and

(2) “to protect the public interest” including “public

peace and security”); id. at §43-246(9) (acknowledging

the need to balance “the best interests of the juvenile

and the safety of the community”). Consistent with

these interests, Nebraska’s juvenile courts seek the

“education, treatment, and rehabilitation of the

child”—they do not administer “retributive punishment.” In re Laurance S., 742 N.W.2d 484, 488 (Neb.

2007) (quoting In re Interest of Brandon M., 727

N.W.2d 230, 234 (Neb. 2007)).

Out of concern for public safety, Nebraska law

generally prohibits minors from possessing handguns

or purchasing or receiving firearms. Neb. Rev. Stat.

§§28-1204 (unlawful possession), 28-1204.01 (unlawful transfer). But before 2018, nothing prevented

juveniles adjudicated of serious offenses from purchasing or otherwise possessing guns as soon as they

turned 19 (the age of majority in Nebraska). Over

time, the legislature became concerned that this

posed substantial threats to public safety.

To address this, Nebraska State Senator Justin

Wayne introduced LB 990, which the State’s Unicameral passed by a 41-0 margin (with 8 legislators

not voting). Senator Wayne made clear that the bill’s

purpose was “not punitive” in nature. Neb.

Unicameral Judiciary Comm. Transcript at 76 (Feb.

8, 2018), https://bit.ly/305oDjT (“Judiciary Comm.

Tr.”). Rather, it was intended to “ensure[ ] the protection of our society,” Neb. Unicameral Floor Debate

Transcript at 88 (Mar. 22, 2018), https://bit.ly/

3h6iZFg (“Floor Debate Tr.”), and achieve “public

safety” as the “number one” goal, Judiciary Comm. Tr.

at 76.

Because Senator Wayne is an attorney who

practices juvenile law and cares about juveniles’

rights, he crafted the bill as a “measured approach.”

Judiciary Comm. Tr. at 74; see also id. at 92

(acknowledging that “every one of the [bill’s]

opponents said[ ] this is one of the most measured

approaches in the country”). The new law, referred to

herein as the juvenile-offender-in-possession statute,

temporarily suspends the right to possess firearms

from an individual “previously . . . adjudicated an

offender in juvenile court” for an act that would have

been a “felony” or “misdemeanor crime of domestic

violence.” Neb. Rev. Stat. §28-1204.05(1).

Because other Nebraska law already imposes

severe restrictions on minors possessing or acquiring

guns, the primary impact of this suspension is

delayed until a juvenile offender becomes an adult.

And some juvenile offenders will not have their adult

gun rights restricted at all because the statute

authorizes them to petition for reinstatement before

turning 19. Neb. Rev. Stat. §28-1204.05(4)(a). Consistent with the juvenile code’s twin goals of individual

rehabilitation and community safety, judges reviewing reinstatement petitions must weigh “the best

interests of the [juvenile]” and “the public welfare,” id.

at §28-1204.05(4)(c), while considering the “likelihood

that the person will engage in further criminal

activity,” id. at §28-1204.05(4)(b)(ii).

Regardless of whether a reinstatement petition is

filed or granted, the statute’s temporary firearm suspension automatically expires at age 25. Neb. Rev.

Stat. §28-1204.05(1). Anyone who violates this statute

(both initial and subsequent offenses) is guilty of a

low-level felony, id. at §28-1204.05(2), none of which

imposes a mandatory minimum term of imprisonment, id. at §28-105(1).

Reflecting the legislature’s measured approach to

this issue, Nebraska’s juvenile-offender-in-possession

statute is far less stringent than its adult-offender-inpossession law, which prohibits firearm possession by

individuals who are convicted of certain serious

crimes as adults. Neb. Rev. Stat. §28-1206(1)(a)(i).

First, while the juvenile-offender-in-possession statute has little immediate impact on juveniles who

already face restrictions on possessing and receiving

guns, id. at §§28-1204, 28-1204.01, the adultoffender-in-possession statute instantly strips adults

of all their gun rights. Second, the restrictions

imposed by the adult-offender-in-possession statute

do not lift automatically but continue indefinitely.

Third, adult offenders may restore their gun rights

only if they wait 10 years after completing their

sentence, meet the stringent requirements for

obtaining a pardon, and convince the pardons board

to “expressly authorize” them to “possess . . . a

firearm.” Id. at §83-1,130(2). Fourth, although violators of the juvenile-offender-in-possession law never

face mandatory minimums, a first offense under the

adult-offender-in-possession statute comes with a

mandatory minimum of three years’ imprisonment,

and subsequent offenses start at 20 years. Id. at §281206(3)(b); id. at § 28-105(1).

The juvenile-offender-in-possession statute also

requires juvenile courts to notify minors about “the

specific legal consequences that an adjudication . . .

will have on [their] right to possess a firearm.” Neb.

Rev. Stat. §43-261.01(1). This sensibly alerts juveniles that if they are adjudicated, they must apply to

reinstate their gun rights or refrain from possessing

a firearm until age 25.

B. Factual Background. In September 2018, Heidi

Cuca stopped to fill her Lexis SUV with gas. Pet. App.

2. Once the tank was full, she started to enter the

vehicle when she saw petitioner in the driver’s seat

attempting to steal it (and also noticed petitioner’s

friend in the backseat). Ibid. While petitioner hurried

to start the car, Ms. Cuca struggled to grab the key

fob from inside. Ibid. A physical altercation ensued,

during which petitioner punched Ms. Cuca in the face

and yelled “I’m going to take it.” Ibid. Eventually, Ms.

Cuca—with aid from the gas-station manager who

responded to her calls for help—stopped petitioner.

Ibid.

The manager then tried to subdue petitioner while

waiting for the police, but petitioner grabbed the

manager’s throat and attempted to bite her shoulder,

forearm, and hand. After petitioner broke loose, she

began to run away. When a concerned bystander

stopped her, petitioner pulled his beard and tried to

bite him too. This string of violence enabled petitioner

to flee the scene before the police arrived. Petitioner

was 15 years old at the time.

A few days later, petitioner and her father met

with a city police officer, waived her Miranda rights,

and voluntarily submitted to an interview. Pet. App.

2. During that interview, petitioner told the officer

that she “just felt like taking the car,” that she and

her friend had developed a plan to do so, and that she

had hit Ms. Cuca. Ibid.

C. Juvenile-Court Proceedings. In October 2018,

the State filed a petition in juvenile court alleging

that petitioner attempted to steal a car worth $5,000

or more—conduct that is a felony under Nebraska

law. Neb. Rev. Stat. §§28-201, 28-511, 28-518; Pet.

App. 3. Petitioner demanded a jury trial because an

adverse adjudication would subject her to the

juvenile-offender-in-possession statute. Pet. App. 3–4.

The court denied the request because its limited

jurisdiction did not authorize it to empanel a jury. Id.

at 4–5.

The court then held an evidentiary hearing. Pet.

App. 5–6. The State offered three witnesses—Ms.

Cuca, the gas-station manager, and the interviewing

police officer. Id. at 5. Ms. Cuca and the manager both

identified petitioner as the girl who attempted to steal

the vehicle. Ibid. The defense offered no evidence in

response. Id. at 6. After the hearing, the court entered

an adjudication order against petitioner. Ibid. She

appealed.

In November 2019, while that appeal was pending,

petitioner got into more trouble with the law. This

time she did not just attempt to steal, but actually

succeeded in taking property valued at $5,000 or

more. This, like her attempted theft of Ms. Cuca’s

Lexis, would have been a felony if she were an adult.

Neb. Rev. Stat. §§28-511, 28-518. The State filed a

petition raising this theft with the juvenile court. BIO

App. 1a.

In December 2019, petitioner admitted to these

allegations against her and did not request a jury

trial. BIO App. 4a. As a result, the juvenile court

entered an adjudication order for felony theft. Ibid.

Petitioner did not appeal.

Petitioner is still a juvenile and will not become an

adult until August 2022. Although the original adjudication in this case was entered in 2018, petitioner

has not asked the juvenile court to reinstate her

firearm rights. Nor has she introduced any evidence

indicating that she desires to own or possess a gun—

let alone specifics about any plans or intentions to

have a gun in the future.

D. Decision Below. In January 2020, the Supreme

Court of Nebraska affirmed the denial of petitioner’s

jury demand. Petitioner argued that the juvenileoffender-in-possession statute “transforms a juvenile

adjudication . . . into a serious criminal offense to

which the right to a jury trial attaches.” Pet. App. 9.

Under this Court’s case law, that jury right attaches

only if the “statutory penalties, viewed in conjunction

with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a

serious one.” Ibid. (cleaned up); accord Blanton v. City

of N. Las Vegas, 489 U.S. 538, 543 (1989) (establishing that standard).

Petitioner based her jury demand, the court below

explained, on “the fundamental assumption” that the

juvenile-offender-in-possession statute imposes a

“penalty for juvenile adjudication.” Pet. App. 10. But

the court rejected that premise for two reasons.

First, the court focused on the non-punitive purpose of juvenile adjudications in Nebraska. The purpose of those adjudications, the court said, “is the

education, treatment, and rehabilitation of the child,

rather than retributive punishment.” Pet. App. 11

(quoting Laurance S., 742 N.W.2d at 488). It is “difficult to envision” a juvenile disposition that amounts

to “punishment.” Ibid.

Second, the court discussed the non-punitive

purpose of offender-in-possession statutes. Agreeing

with the “majority of jurisdictions,” the court concluded that “the statutory prohibition on possessing

firearms” is “a collateral consequence” of prior adjudications and “not part of the punishment imposed” for

them. Pet. App. 12.

For these reasons, the court held that Nebraska’s

temporary firearm suspension “is not punishment

imposed for a prior juvenile adjudication.” Pet. App.

13. Accordingly, that consequence did not “transform

[petitioner’s] juvenile adjudication into a serious

offense” or “entitle[ ] her to a jury trial.” Ibid.

REASONS FOR DENYING THE PETITION

I. No other appellate court in the country has

addressed whether a juvenile-offender-in-possession

statute creates a Sixth Amendment jury right in a

juvenile proceeding. This novel, undeveloped question

does not need this Court’s attention.

The centerpiece of petitioner’s asserted conflict—

Andersen v. Eighth Judicial District Court, 448 P.3d

1120 (Nev. 2019)—does not establish a split. That

case involved a different kind of proceeding (an adult

criminal proceeding), harsher penalties (including a

six-month term of imprisonment), and a more

stringent firearm statute (an adult-offender-in-possession statute with an indefinite firearm ban).

Because those differences are directly relevant to the

governing legal analysis, there is no conflict.

II. This case is also a bad vehicle. Multiple

justiciability principles—standing, mootness, and

ripeness—threaten to block this Court from reaching

the merits of petitioner’s claim.

Petitioner lacks appellate standing because she

has not alleged an injury that is fairly traceable to the

juvenile-offender-in-possession statute. Assuming

that she wants to possess a gun while still a juvenile,

her purported injury is most likely attributable to the

State’s general prohibition on minors possessing

handguns and receiving firearms. Or if she wants a

gun once she becomes an adult, her alleged injury

might never materialize because she can obtain reinstatement before turning 19. Either way, the case for

standing comes up short.

Redressability and mootness are roadblocks too.

Petitioner’s subsequent adjudication for another

felony means that the juvenile-offender-in-possession

statute applies to her regardless of what happens in

this case. Because a ruling here will have no effect,

this Court is without jurisdiction.

Ripeness presents further concerns. The question

presented is not fit for review because petitioner has

provided insufficient facts about her desired possession and use of guns. And she faces no hardship if

this Court declines review because her subsequent

adjudication subjects her to the juvenile-offender-inpossession statute no matter what happens here.

In addition to these justiciability concerns, this

case is a poor vehicle to address the relationship between the Sixth Amendment jury right and offenderin-possession statutes. All existing case law on that

issue (aside from the decision below) deals with adultoffender-in-possession statutes. But juvenile cases

like this one are ill-suited for addressing those adultoffender laws. Juvenile cases raise issues peculiar to

their context, including whether juvenile proceedings

fit within the text of the Sixth Amendment and whether juries will undermine the rehabilitative purpose

of juvenile proceedings. Because these issues could

dictate the outcome here, the ruling might have little

relevance to adult-offender-in-possession statutes.

Nor is this case a good mechanism for addressing

the Sixth Amendment implications of juvenileoffender-in-possession statutes. Nebraska’s measured

approach to this issue is unlike the law enacted in

other States. Consequently, this case will not provide

helpful nationwide guidance.

III. There is a final reason why this Court should

deny review: because the decision below is correct.

Nebraska’s temporary firearm suspension does not

factor into the Sixth Amendment analysis because the

legislature did not intend it as punishment for

juvenile offenses. Instead, its purpose, as confirmed

by both statutory text and legislative history, is to

protect the public. Petitioner’s Sixth Amendment

arguments thus fail because, as the Supreme Court of

Nebraska held, the temporary firearm suspension “is

not punishment imposed for [this] juvenile adjudication.” Pet. App. 13.

Moreover, the consequences of the adjudication in

this case do not manifest a legislative determination

that the offense is serious enough to require a jury

trial. This Court has repeatedly said that the maximum authorized period of incarceration is the primary indicator of seriousness. But the available punishments for this adjudication did not include incarceration. Where a firearm suspension applies but the

adjudication does not authorize imprisonment, a jury

right does not arise. Even the scholars that petitioner

relies on recognize this. Because the decision below is

correct, the Court should deny the petition.

I. Petitioner’s asserted split is illusory because

no other appellate court has addressed the

juvenile-specific question resolved below.

The question addressed below is whether a

juvenile-offender-in-possession statute that temporarily suspends a serious offender’s right to possess

firearms creates a Sixth Amendment jury right in

juvenile court. Petitioner does not cite any other

appellate decision that has addressed that juvenilespecific question. Nor does it appear that any other

appellate court has. The case law on that question

thus needs much more development before this Court

intervenes.

A. Andersen. Attempting to obscure the uniqueness of the decision below, petitioner argues that it

conflicts with Andersen v. Eighth Judicial District

Court, 448 P.3d 1120 (Nev. 2019). It does not. The two

cases involve different types of proceedings, different

penalties, and different firearm statutes. They do not

conflict.

1. Different proceedings. While this case is a

juvenile proceeding against a minor, Andersen was a

criminal misdemeanor case against an adult. That

difference is crucial for reasons that this Court has

already recognized. Schall v. Martin, 467 U.S. 253,

263 (1984) (“a juvenile proceeding [is] fundamentally

different from an adult criminal trial”).

For starters, the Sixth Amendment applies only to

“criminal prosecutions.” U.S. Const. amend. VI. In

Andersen, it was undisputed that a misdemeanor case

against an adult was a criminal prosecution subject to

the Sixth Amendment. But here, it is unclear whether

this juvenile proceeding qualifies as a criminal prosecution under that Amendment—a point on which this

Court has expressed doubts. McKeiver v. Pennsylvania, 403 U.S. 528, 541 (1971) (plurality op.) (“[T]he

juvenile court proceeding has not yet been held to be

a ‘criminal prosecution,’ within the meaning and

reach of the Sixth Amendment”); id. at 551 (White, J.,

concurring) (“We have not . . . considered the juvenile

case a criminal proceeding within the meaning of the

Sixth Amendment”); id. at 553 (Brennan, J., concurring and dissenting) (agreeing with “the plurality

opinion’s conclusion that the proceedings . . . were not

‘criminal prosecutions’ within the meaning of the

Sixth Amendment”). The jury-right claim here thus

needs to grapple with this threshold textual issue, but

the Andersen court did not.

Requiring a jury trial in a juvenile case also implicates a number of complicating policy considerations

that do not arise in a criminal misdemeanor case like

Andersen. For example, the McKeiver plurality was

concerned that injecting a jury right into juvenile

proceedings might transform “informal protective

proceeding[s]” that seek rehabilitation (rather than

retribution) into “fully adversary process[es]” with

added “delay” and “formality.” Id. at 545, 550. This

apprehension about upsetting the rehabilitative purpose and flexible nature of juvenile proceedings—and

the impact that might have on children—was simply

not relevant in Andersen.

By arguing that Andersen conflicts with the

decision below, petitioner effectively equates criminal

and juvenile proceedings. But that is something this

Court has repeatedly refused to do. Schall, 467 U.S.

at 263 (“the Constitution does not mandate elimination of all differences” between juvenile and adult

criminal proceedings); McKeiver, 403 U.S. at 550

(plurality op.) (taking “issue” with the attempt to

“equate the juvenile proceeding . . . with the criminal

trial”); id. at 553 (White, J., concurring) (recognizing

and upholding the “differences of substance between

criminal and juvenile courts”).

2. Different penalties. The potential consequences

facing petitioner are also very different from the

penalties authorized in Andersen. Most importantly,

Nevada law subjected Mr. Andersen to “a maximum

authorized period of incarceration of six months.”

Andersen, 448 P.3d at 1123. But petitioner faced no

imprisonment in this case.

The absence of any authorized period of incarceration is critical. While Sixth Amendment jury-right

analysis considers the totality of available penalties,

it places the “[p]rimary emphasis . . . on the maximum

authorized period of incarceration.” Blanton, 489 U.S.

at 542; accord Lewis v. United States, 518 U.S. 322,

326 (1996) (Lewis II) (“In evaluating the seriousness

of the offense, we place primary emphasis on the

maximum prison term authorized.”). Prison is the

ultimate loss of liberty and thus “the most powerful

indication whether an offense is ‘serious.’” Blanton,

489 U.S at 542. Other penalties—including “significant infringement[s] of person freedom”—“cannot

approximate in severity the loss of liberty that a

prison term entails.” Ibid. Even when the legislature

authorizes six months in prison, it is “the rare situation” where other penalties will be “onerous” enough

to require a jury right. Id. at 543. It is rarer still that

a jury right will attach when, as here, incarceration is

not available.

Andersen viewed itself as one of the unusual cases

when a legislatively created consequence combined

with six months’ imprisonment to create a jury right.

Petitioner seeks much more here: to establish a jury

right through a temporarily imposed collateral consequence without any authorized prison term. That the

legislature has not authorized any incarceration for

petitioner’s juvenile adjudication makes this case

entirely unlike Andersen. That case does not conflict

with this one.

3. Different Firearm Statutes. The firearm statute

at issue in Andersen is also materially distinguishable

from Nebraska’s juvenile-offender-in-possession statute. Notably, the gun restriction in Andersen was

indefinite, but the suspension here is temporary (and

includes the opportunity for reinstatement even

before the juvenile becomes an adult).

While in many situations it is immaterial how long

a constitutional right is suspended or withheld, see

Elrod v. Burns, 427 U.S. 347, 373–74 (1976) (plurality

op.), that is not true for Sixth Amendment jury-right

analysis. After all, the risk of losing one’s liberty for

more than six months creates a jury right, but the

potential for six months or less in prison typically

does not. Blanton, 489 U.S. at 542–43. Because other

“significant infringement[s] of personal freedom” do

not “approximate in severity the loss of liberty that a

prison term entails,” id. at 542, it fits squarely within

this Court’s jurisprudence to distinguish between

removing the right to possess firearms indefinitely

and suspending it for (at most) only the first six years

of adulthood.

B. Other Firearms Cases. Finding no foothold in

Andersen, Petitioner points to one additional state

appellate decision, one federal circuit-court decision,

and three unpublished federal district-court decisions

that allegedly implicate a split of authority. Pet. at

19–20. But none of these cases were juvenile proceedings. Rather, the four federal cases involved adult

misdemeanor proceedings, just like Andersen. United

States v. Chavez, 204 F.3d 1305, 1313–14 (11th Cir.

2000) (no jury right for “a misdemeanor crime of

domestic violence”); United States v. Snow, No. 110149-SU, 2011 WL 5025535, at *1–3 (D. Or. Oct. 21,

2011) (same); United States v. Jardee, No. 4:09-MJ091, 2010 WL 565242, at *1–4 (D.N.D. Feb. 12, 2010)

(same); United States v. Combs, No. 8:05CR271, 2005

WL 3262983, at *1–3 (D. Neb. Dec. 1, 2005) (same).

And the state case, which sought a jury right under a

state (not federal) constitution, also arose out of adult

misdemeanor proceedings. State ex rel. McDougall v.

Strohson (Cantrell), 945 P.2d 1251, 1251–52 (Ariz.

1997). Consequently, none of those cases addressed

the juvenile-specific question resolved below.

Moreover, all five of those decisions held that the

litigant did not have a right to a jury trial. So to the

extent that their analysis is at all relevant to the

question addressed below, those decisions do nothing

to create a split. They serve only to confirm that the

Supreme Court of Nebraska reached the right result.

C. Removal Cases. Casting her search for a conflict

even further afield, petitioner discusses cases in

which a defendant is accused of “an offense that

renders a noncitizen removable under federal immigration law.” Pet. at 20. Those cases are distinguishable for many of the reasons that Andersen is: they

were not juvenile proceedings; and they brought criminal charges that exposed the defendant to incarceration.

In addition, assuming without conceding that

those removal cases were correctly decided, it is obvious that removal—which at times amounts to complete “exile” from the country, Jordan v. De George,

341 U.S. 223, 231 (1951)—raises very different

considerations than a statute that (at most) temporarily suspends firearm possession for the first six

years of adulthood. That petitioner pulls in these

removal cases shows just how weak her conflict

argument is.

II. This case is a bad vehicle.

This case is a poor vehicle to address the question

presented. To begin with, justiciability concerns permeate this case, raising serious uncertainties about

whether this Court can even reach the merits of

petitioner’s claim. Additionally, the juvenile-specific

question in this case is ill-suited to provide helpful

national guidance on the constitutional issues that

petitioner seeks to press.

A. Serious questions surround the justiciability of this appeal.

Standing, mootness, and ripeness, which “all originate in Article III's ‘case’ or ‘controversy’ language,”

are justiciability doctrines that prevent courts from

reaching the merits of litigants’ claims. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).

Those doctrines all cast doubt on whether this Court

can reach the question presented.

1. Standing. All three requirements of Article III

standing “must be met by persons seeking appellate

review.” Hollingsworth v. Perry, 570 U.S. 693, 705

(2013). First, a litigant must establish “an injury in

fact—an invasion of a legally protected interest” that

is “actual or imminent, not conjectural or

hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555,

560 (1992) (cleaned up). A “threatened injury must be

certainly impending to constitute injury in fact”;

“allegations of possible future injury are not

sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S.

398, 409 (2013) (cleaned up). Second, any claimed

injury must be “fairly traceable” to the challenged law

rather than some independent source. Ibid. Third, it

must be likely that the asserted “injury will be

redressed by a favorable decision.” Defs. of Wildlife,

504 U.S. at 561.

Petitioner argues that the juvenile-offender-inpossession statute suspends her right to possess a gun

without first giving her a jury trial. But this alleged

injury is illusory unless petitioner shows that the

judgment below actually affects her personal plans to

possess firearms.

It is difficult to assess the claimed injury because

petitioner—despite “bear[ing] the burden of establishing” standing, ibid.—does not even allege that she

wants to possess firearms, let alone indicate what gun

she wants, or disclose when, where, or for what

purpose she desires to use it. Assuming that she

wants a gun now, as a juvenile who turns 17 this

month, her alleged injury is not likely attributable to

the juvenile-offender-in-possession statute. Rather,

the cause is Nebraska’s general prohibition on the

possession of handguns and the receipt of firearms by

juveniles. Neb. Rev. Stat. §§28-1204, 28-1204.01.

Assuming, on the other hand, that petitioner wants to

acquire firearms after turning 19, her purported

injury is speculative because the State allows her to

apply for full reinstatement before she becomes an

adult. Id. at §28-1204.05(4)(a). Either way, petitioner’s purported injury rests on shaky ground.

Nor does it appear that this Court can redress

petitioner’s asserted injury. While this appeal was

pending, petitioner engaged in additional conduct—

theft of an item worth more than $5,000—that would

have been a felony were she an adult. When the State

raised this issue to the juvenile court, petitioner

admitted it and did not request a jury trial. The

juvenile court then entered an adjudication order

against her. So regardless of the outcome of this case,

petitioner will be in precisely the same position she is

in now. She will still have been adjudicated of a felony

and continue to be subject to the juvenile-offender-inpossession statute.

2. Mootness. This redressability problem may

alternatively be viewed through the lens of mootness.

“[A]n actual controversy must be extant at all stages

of review, not merely at the time the complaint is

filed.” Arizonans for Official English v. Arizona, 520

U.S. 43, 67 (1997) (citation omitted). “This means

that, throughout the litigation, the plaintiff must

have suffered, or be threatened with, an actual injury

traceable to the defendant and likely to be redressed

by a favorable judicial decision.” Spencer v. Kemna,

523 U.S. 1, 7 (1998) (cleaned up). But as explained

above, petitioner’s subsequent adjudication for another felony means that she will be subject to the

juvenile-offender-in-possession statute even if she

prevails here. That subsequent adjudication has

rendered this appeal moot.

While this Court has sometimes said that the

collateral consequences of criminal convictions suffice

to avoid mootness, see id. at 7–14, such consequences

cannot save this case. Petitioner herself recognizes

that, aside from the temporary firearm suspension

prescribed in the juvenile-offender-in-possession

statute, juvenile adjudications in Nebraska do not

have collateral consequences or impose civil disabilities. Pet. at 8–9 (citing Neb. Rev. Stat. §43-280).

Accordingly, the only potential consequence of peti-

tioner’s adjudication is one that she is now guaranteed to experience because of her subsequent adjudication for theft. This case will have no effect on that.

As a result, collateral consequences cannot keep this

case alive.

3. Ripeness. In addition to standing and mootness,

ripeness is another potential roadblock to this appeal.

“The ripeness doctrine is drawn both from Article III

limitations on judicial power and from prudential

reasons for refusing to exercise jurisdiction.” Nat’l

Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808

(2003) (cleaned up). A case should be dismissed for

lack of a ripe claim if (1) the issue is not “fit for review”

because of insufficient “factual development,” id. at

812, or (2) the parties will not experience substantial

hardship from “withholding court consideration,” id.

at 808.

Both of these factors weigh in favor of dismissal.

First, the legal issue is not fit for review because

petitioner has not introduced any evidence about her

intent to possess firearms or the circumstances of her

intended possession. This leaves the Court to guess

about facts central to its analysis. Second, petitioner

will not endure any hardship if the Court declines

review. The outcome of this case will not affect her

right to possess a gun because her subsequent theft

provides an independent reason why the juvenileoffender-in-possession statute applies to her. Withholding review will not affect petitioner in the least.

B. A juvenile case like this one is a poor

vehicle for deciding offender-in-possession issues.

This case is a poor vehicle for deciding whether

offender-in-possession statutes create a right to a jury

trial. It is ill-suited for resolving the constitutional

questions raised by adult-offender-in-possession statutes because a juvenile case like this one raises many

issues not present in the adult criminal context. And

this case is a poor vehicle for evaluating juvenileoffender-in-possession statutes because Nebraska’s

measured approach to this issue is an outlier.

Deciding this case will not provide useful national

guidance.

1. Poor Vehicle for Adult-Offender-In-Possession

Issues. Juvenile cases like this one are not suitable for

resolving the adult-offender-in-possession issue that

courts like Andersen have addressed. Juvenile proceedings, as discussed above, raise many issues that

are absent from adult criminal cases.

There is, for example, the threshold question whether juvenile cases qualify as “criminal prosecutions”

under the Sixth Amendment—a question on which

this Court has already expressed doubts. See supra at

12. If this case does not get beyond that issue, the

ruling would fail to provide guidance on the broader

Sixth Amendment questions presented in adult criminal cases.

Even if petitioner can clear this textual hurdle, the

constitutional analysis will need to grapple, much like

the McKeiver Court did, with the difficult policy

concerns that arise when litigants ask judges to

import the jury right into juvenile proceedings. See

403 U.S. at 545, 550 (plurality op.); supra at 12–13.

Depending on how the Court addresses these policy

considerations, the resulting opinion might have little

to no relevance in adult criminal cases.

Furthermore, collateral consequences like firearm

restrictions factor into Sixth Amendment jury-trial

analysis only if they are punishment for an adjudication. See Pet. App. 9–13; infra at 26. Nebraska law

treats juvenile adjudications as non-punitive, and

that consideration will necessarily affect the constitutional analysis. Pet. App. 10–11. A ruling that relies

on that factor in any significant way simply will not

transfer to adult-offender-in-possession laws.

This case might also raise Second Amendment

issues of no concern in the adult criminal context. To

the extent that petitioner is claiming a constitutional

right to possess a gun as a juvenile, she must

establish that Second Amendment rights belong to

minors. See United States v. Rene E., 583 F.3d 8, 12–

16 (1st Cir. 2009) (reviewing the “tradition of prohibiting juveniles from both receiving and possessing

handguns” and finding no constitutional protection).

If no such right exists, this too could limit the guidance that this case provides in adult criminal cases.

2. Poor Vehicle for Juvenile-Offender-In-Possession Issues. Nor is this case a good vehicle to explore

the relationship between the Sixth Amendment jury

right and juvenile-offender-in-possession statutes. To

reiterate, there is no need for this Court to address

that issue because no appellate court, other than the

court below, has weighed in on it.

But even if the Court wanted to address that issue,

this case is a decidedly poor vehicle for doing so. That

is because Nebraska’s moderate approach to the juvenile-offender-in-possession issue is quite peculiar. To

begin with, only 26 States (including Nebraska) restrict possession of firearms because of a juvenile

offense. BIO App. 8a–9a; Categories of Prohibited

People: State by State, Giffords Law Center (Nov. 8,

2019), https://bit.ly/39fhK3A. Out of those States,

only 16 (including Nebraska) limit juvenile proceedings to bench trials. BIO App. 8a–9a; Juvenile Right

to Jury Trial Chart, National Juvenile Defender

Center (July 17, 2014), https://bit.ly/3jBYzpE. Out of

those States, only six (including Nebraska) automatically lift their firearm restriction at age 25 or

younger. Del. Code Ann. tit. 11, §1448(a)(4); Fla. Stat.

§790.23(1)(b); Haw. Rev. Stat. §134-7(d); Or. Rev.

Stat. §166.250(1)(c)(B); Utah Code Ann. §76-10503(1)(b)(ii). And out of those States, Nebraska

appears to be the only one that allows juveniles to

apply for reinstatement before reaching the age of

majority. Since Nebraska’s approach to this issue is

unique, deciding this case will not provide helpful

guidance to other States.

Furthermore, petitioner has restricted this Court’s

review by raising only the Sixth Amendment right to

a jury trial while omitting a general due-process claim

under the Fourteenth Amendment. Although serious

questions surround whether a juvenile proceeding is

a “criminal prosecution” under the Sixth Amendment,

this Court has held that the Fourteenth Amendment’s

Due Process Clause “is applicable in juvenile proceedings,” and that it requires safeguards like “notice

of charges” and the “privilege against self-incrimina-

tion.” Schall, 467 U.S. at 263. The lack of an independent due-process claim is another reason why this

case is a poor vehicle.

As if all these deficiencies were not enough, the

absence of facts concerning petitioner’s purported

intent to possess a firearm makes it difficult to evaluate whether the Second Amendment even applies

here. Second Amendment analysis considers factors

that are wholly missing from the record. Those

include (1) the type of firearm that petitioner wants

to possess, District of Columbia v. Heller, 554 U.S.

570, 625 (2008) (“[T]he Second Amendment does not

protect those weapons not typically possessed by lawabiding citizens for lawful purposes”), (2) where she

wants to possess it, McDonald v. City of Chicago, 561

U.S. 742, 791 (2010) (“[T]he Second Amendment

protects the right to possess a handgun in the home

for the purpose of self-defense”) (emphasis added),

and (3) “the purpose” for which she wants to use it,

ibid. Because those facts are unknown here, the Court

should pass on this case.

3. Petitioner’s Arguments. Petitioner tries various

tacks when insisting that this case is an “excellent

vehicle.” Pet. at 25–30. None is persuasive.

She begins by claiming that the decision below is

a threat to the Sixth Amendment in all contexts,

arguing that it gives States a blank check to withhold

the jury right simply by codifying collateral consequences “in separate criminal provisions.” Pet. at 25–

26. This argument seriously misreads the decision

below. That decision rejected petitioner’s jury demand

because the juvenile-offender-in-possession statute is

not punishment for juvenile adjudications. Pet. App.

9–13. The court identified two reasons why that was

so: first, the purpose of juvenile adjudications is not

punitive, id. at 10–11; and second, the purpose of

offender-in-possession statutes is not punitive, id. at

12–13. That decision did not hinge on the juvenileoffender-in-possession statute’s location in the code.

Petitioner next insists that the decision below

endangers the jury rights of juveniles in particular,

claiming that it authorizes States to attach “criminal

consequences” to a juvenile offense without affording

a jury trial. Pet. at 28. But the temporary firearm

suspension here is not a criminal consequence because it is not punitive. Pet. App. 9–13. Even this

Court has recognized that an offender-in-possession

law imposes an “essentially civil disability” and does

not “enhance punishment” for a prior conviction.

Lewis v. United States, 445 U.S. 55, 67 (1980) (Lewis

I).

Ironically, it is petitioner’s position (not the decision below) that raises “troubling implications for . . .

juvenile proceedings.” Pet. at 27. Petitioner’s view, as

argued below, is that all “felony and misdemeanor

domestic violence charges in Juvenile Court” include

a jury right. Appellant Neb. Sup. Ct. Br. at 38.

Accepting that will restrict the flexibility of those

proceedings, threaten to undermine their rehabilitative focus, and force States to forfeit the benefits of

“speedy and inexpensive nonjury adjudications.”

Blanton, 489 U.S. at 543 (quoting Baldwin v. New

York, 399 U.S. 66, 73 (1970)). It will, in short, stifle

States’ freedom to experiment in finding the best

ways to promote child welfare and secure public

safety through their juvenile justice systems. The

Constitution does not require that.

III. The decision below is correct.

The Supreme Court of Nebraska correctly held

that the juvenile-offender-in-possession statute does

not require a jury trial in juvenile court. That decision

is right for two reasons. First, as the court below held,

the juvenile-offender-in-possession law is not punishment for a prior juvenile adjudication. Pet. App. 10–

13. Second, under this Court’s precedents, a juvenile

proceeding that includes no term of incarceration and

only a temporary suspension of gun rights does not

rise to the level of seriousness that requires a jury

trial.

1. Not Punitive. In deciding whether an offense is

“serious” enough to qualify for a jury right, this Court

considers the “legislature’s view of the seriousness of

[the] offense” as reflected in the prescribed “penalties”

and “punishment.” Blanton, 489 U.S. at 541–42.

Courts include a collateral consequence in that seriousness analysis only when the legislature intended

the consequence to be punishment for the offense. See

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 167

(1963) (explaining that the protections of “the Fifth

and Sixth Amendments” apply only when “the

sanction . . . impose[d] is punishment); Pet. App. 10

(considering “the intent-effects test established by

[this] Court”).

Here, as the court below held, the legislature did

not implement the juvenile-offender-in-possession

statute to punish individuals for their juvenile adjudications. Rather, its purpose is to protect the public

from people who have shown themselves to be dangerous. This is a “compelling state interest” that “persists

undiluted in the juvenile context.” Schall, 467 U.S. at

264. At least four factors prove this legislative purpose.

First, the words of “the statute on its face” show

its protective character. Kennedy, 372 U.S. at 169. It

is triggered only by an “adjudicat[ion] . . . in juvenile

court.” Neb. Rev. Stat. §28-1204.05(1). As petitioner

admits and the court below observed, those adjudications are designed to “rehabilitat[e] juveniles, not

punish[ ] criminals.” Pet. at 8; accord Pet. App. 10–11

(similar). This creates a strong presumption that the

firearm restriction is not punitive. See Pet. App. 11 (it

is “difficult to envision” a juvenile disposition that

amounts to “punishment”).

Continuing in the text, the statute permits juvenile offenders to “file a petition” to remove the firearm

suspension before they become adults. Neb. Rev. Stat.

§28-1204.05(4)(a). Providing this opportunity would

make no sense if the legislature intended the suspension as punishment. And further reflecting the statute’s protective purpose, the standards for granting

reinstatement are “the best interests” of the applicant

and “the public welfare,” id. at §28-1204.05(4)(c), in

light of the “likelihood that the person will engage in

further criminal activity,” id. at §28-1204.05(4)(b)(ii).

These are the concerns of public safety—not personal

punishment. See Schall, 467 U.S. at 264–74 (concluding that the temporary preventive detention of juveniles, implemented “to protect the child and society,”

was not “used or intended as a punishment”).

Second, the legislature’s “reasons for enacting” the

juvenile-offender-in-possession statute leave no doubt

about its non-punitive purpose. Kennedy, 372 U.S. at

169. That serious juvenile offenders in early 2018

could acquire and possess firearms when they turned

19 raised substantial public-safety concerns for the

legislature. The legislative sponsor emphasized this

when he announced that the bill was intended to

“ensure[ ] the protection of our society,” Floor Debate

Tr. at 88, and achieve “public safety” as the “number

one” goal, Judiciary Comm. Tr. at 76. He also said

that the statute’s purpose was “not punitive” in

nature. Judiciary Comm. Tr. at 76. Indeed, one will

search the legislative record in vain to find any hint

of a retributive purpose.

Third, the statute is “rationally . . . connected” to

its public-safety purpose and not “excessive in

relation to” that goal. Kennedy, 372 U.S. at 168–69.

The law is a measured response to the legislature’s

concerns. Its firearm suspension automatically expires at age 25, and covered individuals can apply for

reinstatement even before they turn 19. Also, the

prescribed penalties for violating it are modest and

include no mandatory minimums. This close fit

between plan and purpose corroborates the legislature’s stated intent. See Lewis I, 445 U.S. at 67

(“Congress’ judgment that a convicted felon . . . is

among the class of persons who should be disabled

from dealing in or possessing firearms because of

potential dangerousness is rational.”).

Fourth, as the court below noted, the “majority of

jurisdictions” have concluded that “statutory prohibition[s] on possessing firearms” are “not part of the

punishment imposed” for prior adjudications. Pet.

App. 12; e.g., Chavez, 204 F.3d at 1314 (Congress did

not intend the federal offender-in-possession statute

to be “an ‘additional’ penalty” for a prior conviction).

This weight of authority confirms that Nebraska’s

juvenile-offender-in-possession statute is not punitive.

2. Not Serious. Alternatively, even assuming that

the statute’s temporary firearm suspension is punitive, the Supreme Court of Nebraska reached the

right outcome because the consequences of this

adjudication are insufficient to invoke the jury right.

Petitioner must establish that the “statutory penalties, viewed in conjunction with the maximum

authorized period of incarceration, are so severe that

they clearly reflect a legislative determination that

the offense in question is a ‘serious’ one.” Blanton, 489

U.S. at 543.

But here, the legislature did not authorize incarceration for this juvenile adjudication. The only consequence that petitioner raises is the temporary firearm

suspension. Since this Court has recognized that the

“[p]rimary emphasis” in Sixth Amendment jury-right

analysis is “on the maximum authorized period of

incarceration,” Blanton, 489 U.S. at 542, and the

legislature did not authorize any prison time for this

juvenile offense, petitioner cannot establish that the

legislature considered her offense sufficiently serious

to invoke the constitutional right to a jury.

Notably, two of the scholars that petitioner relies

on agree with the State on this. One wrote that when

an adjudication poses “no threat of potential imprisonment,” the “possibility of a firearm prohibition

alone should not trigger [the] constitutional right to a

jury trial.” Paul T. Crane, Incorporating Collateral

Consequences into Criminal Procedure, 54 Wake Forest L. Rev. 1, 60 n.285 (2019). And the other said that

“the collateral consequence of firearm prohibition

should be assigned . . . the functional equivalent of six

months of imprisonment,” which, standing alone,

does not warrant a jury trial. Emily Ahdieh, The

Deportation Trigger: Collateral Consequences and the

Constitutional Right to A Trial by Jury, 30 Geo.

Mason U. Civ. Rts. L.J. 65, 84 (2019).

In addition to the absence of jail time for this juvenile adjudication, two features of the firearm suspension reinforce that it does not create a jury right: first,

the suspension lasts (at most) for only the first six

years of adulthood; and second, juvenile offenders

may have the suspension lifted before becoming

adults. See Blanton, 489 U.S. at 544 n.9 (minimizing

the significance of “a 90-day license suspension”

because “a restricted license may be obtained after

only 45 days”); Second Amendment Professors Amici

Br. at 16 (recognizing that States in the founding era

not only withheld firearm rights from dangerous

individuals but also prescribed “procedures for

restoring [an offender’s] right to arms”). By ameliorating the suspension in these ways, the legislature

showed that it does not view the underlying offense as

serious enough to invoke the right to a jury trial.

Tellingly, petitioner cites no case from this Court

suggesting that the Sixth Amendment requires a jury

trial when an adjudication includes the potential for

a temporary suspension of one right but does not

authorize any jail time. For good reason. This Court’s

case law points in the opposite direction. Indeed, the

Court has held that no jury right attaches to the

prospect of six months in prison combined with five

years of probation (which typically includes conditions that themselves impose “significant infringement[s]” on “personal freedom”). Frank v. United

States, 395 U.S. 147, 150–52 (1969). It follows that no

such right accompanies an adjudication that authorizes no prison time and at most a six-year suspension

of the right to possess a firearm.

3. Petitioner’s Arguments. In attacking the decision below, petitioner’s arguments continue to rely on

her mistaken belief that the court rejected her jury

demand merely because the firearm restriction is in a

separate statute. Pet. at 21–22. Again, this is not true.

The decision below rests on its holding that the juvenile-offender-in-possession statute is not punishment

for a prior adjudication. Pet. App. 9–13. Correcting

this misconception guts the core of petitioner’s gripes.

Only one additional argument merits a direct

response. Petitioner contends that the decision not to

evaluate the seriousness of the firearms restriction

below is “impossible to reconcile with” Blanton’s

discussion of the 90-day driving suspension in that

case. Pet. at 22. Not so. The city in Blanton did not

deny that the driving suspension was a punitive

response to the driving-under-the-influence conviction. So the Court did not consider whether that

consequence amounted to punishment. But that issue

was raised and squarely addressed here. Regardless,

the license suspension in Blanton and the firearm

suspension here are very different laws with different

histories and purposes. So even if the driving suspension in Blanton was punitive, that does not mean the

firearm suspension is here.

Another critical distinction separates Blanton and

this case. The defendant there, just like the defendant

in Andersen, was subject to “a maximum term of six

months’ imprisonment.” Blanton, 489 U.S. at 539. But

petitioner’s adjudication here did not include any

threat of incarceration. For this additional reason, the

outcome below is easily reconcilable with Blanton.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,