Jonathan Barlow, Author at Clear Counsel Law Group

Jonathan Barlow

Clear Counsel Law Group / Jonathan Barlow

702-522-0696

product liability, consumer rights, nevada, discovery, joint and several liability

Vetoed Changes to Nevada's Product Liability Laws

The governor recently vetoed changes to a statute that would have implemented a major change to Nevada’s product liability law making it more difficult for consumers to sue retailers in certain cases. Traditionally, when a person is injured from a defective or dangerously designed product, that person can sue the retailer, distributor, manufacturer, and any other party in the supply chain who took part in making that product and getting it out to the consumer. Usually, though, unless the end seller has altered the product in some way, it is only the manufacturer and designer who ultimately have responsibility to the injured consumer. For that reason, many states have now altered the common law to allow for sellers and distributors to be sued only in cases where for some reason the manufacturer was not available to compensate the injured person. As of May 2015, the Nevada lawmakers were poised to pass regulation that would have added this hurdle for injured consumers in Nevada.

What the proposed product liability law says

The proposed NRS 41 would have read that only a manufacturer can be sued for product liability unless certain exceptions apply including :

when a seller has control over the design and making of a product,
when the seller alters the product,
when the product was re-sold in a modified condition,
when the seller failed to exercise reasonable care which caused the harm,
when the seller knew of a defect in the product,
when the seller created certain warranties which the product did not meet,
when the manufacturer cannot be sued within Nevada,
when the manufacturer cannot be found,
when the manufacturer is bankrupt.

In essence, unless there is some basis for independent liability against a seller, sellers would no longer be sued simply for being part of the supply chain. Often, the only result of suing a seller was to cause an innocent seller to incur attorneys’ fees when ultimately, the manufacturer was liable for causing the defect to exist.

Consumer concerns

However, the governor appears to have sympathized with consumer friendly concerns raised during senate hearings. Injured parties may not know whether a seller altered a product, and for that reason, they need to sue before the statute of limitations runs out, allowing discovery to begin and the culpable party to come to light. The new law would have made it more costly for consumers to bring lawsuits by requiring them to sue manufacturers, conduct discovery to see if the product was altered, and then go back and amend their complaints if the retailers could properly be added. As the law stands now, the seller can be named from the outset, and if they did not alter the product or do anything other than just sell it, they will get dismissed and the manufacturer will bear liability. Assuming the manufacturer can be found and has funds to pay the injured party, it is much simpler to dismiss a seller then to add them to a suit, begin new phases of discovery, push back deadlines, and create a complicated mess of a lawsuit.

So, Nevada continues to be a consumer friendly state wherein the hurdles that some states are implementing to protect sellers will not exist. Hopefully this is a trend we will continue to see so injured consumers can continue to get fair compensation and not be deterred complicated legal hurdles.

Nevada Law / Personal Injury - 06/22/2015

Drones, government spying, aerial surveillance

Senator Heller's Legislation Fights Government Drones

Does the Government need a warrant to spy on you with drones or aerial surveillance?

Apparently not.

I commend the AP¹⁾associated press for their work! Allow me to quote a little from their reporting to provide some context for our discussion²⁾the whole article is worth reading, once you have finished here, of course:

The FBI says the planes are not equipped or used for bulk collection activities or mass surveillance. The surveillance equipment is used for ongoing investigations, the FBI says, generally without a judge's approval. The FBI confirmed for the first time the wide-scale use of the aircraft, which the AP traced to at least 13 fake companies, such as FVX Research, KQM Aviation, NBR Aviation and PXW Services. "The FBI's aviation program is not secret," spokesman Christopher Allen said in a statement. "Specific aircraft and their capabilities are protected for operational security purposes."

That has got to be the best use of the adverb “generally” I have seen in years. If the FBI has not asked for a single warrant for aerial surveillance, I supposed that would also be “generally without a judge’s approval.”

A little more from the AP report:

Evolving technology can record higher-quality video from long distances, even at night, and can capture certain identifying information from cellphones using a device known as a "cell-site simulator" — or Stingray, to use one of the product's brand names. These can trick pinpointed cellphones into revealing identification numbers of subscribers, including those not suspected of a crime.

Well then. I guess if you do not want people to know where you are, it is best to leave the cell phone at home³⁾and probably take the battery out when it is not in use.

Are we heading toward some horrid science-fiction nightmare of state aerial surveillance by drones?

Our own Senator Dean Heller to the rescue⁴⁾with co-sponsor Sen. Ron Wyden of the great state of Oregon! They announced 17 June that they introduced the “Protecting Individuals From Mass Aerial Surveillance Act of 2015.” But does the bill do what it says? Let us get under the hood and take a look.

We start with Section 3 that states an overview of the bill:

SEC. 3. PROHIBITED USE OF MAVDS⁵⁾aka drone or "mobile aerial-view device." Apparently some folks find the word “drone” offensive, mostly those who sell drones. If they want us to stop using the term “drone,” they are going to need a much catchier acronym.

A Federal entity shall not use a MAVD to surveil property, persons or their effects, or gather evidence or other information pertaining to known or suspected criminal conduct, or conduct that is in violation of a statute or regulation.

For those of you reading carefully⁶⁾this is obviously all of our Clear Counsel law blog readers, it seems this statement declares that drones may not be used to break the law, which, as far as I know, does not need to be stated explicitly. We are going to have to go deeper into the labyrinth to find out how protective this bill really is.

Sections 5 and 6 clearly state what federal law enforcement is not permitted to do with drones:

SEC. 5. BAN ON IDENTIFYING INDIVIDUALS.

(a) No Federal entity actor may make any intentional effort to identify an individual from, or associate an individual with, the information collected by operations authorized by paragraphs (1) through (3) of subsection (a), nor shall the collected information be disclosed to any entity except another Federal entity or State, tribal, or local government agency or department, or political subdivision thereof, that agrees to be bound by the restrictions in this Act.

SEC. 6. PROHIBITION ON USE OF EVIDENCE.

No evidence obtained or collected in violation of this Act may be received as evidence against an individual in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof.

Alright! Hope is on the way. Government actors may not “identify,” “associate,” or “collect information” about an individual with the use of drones. Nor may the federal government use illegally obtained evidence by drone in the prosecution of an individual⁷⁾The old "fruit of the poisonous tree" doctrine is alive!. Well I am glad we settled all that, now I can go back to writing snarky things about Kim Kardashian on the internets…wait, there's a catch? We best take a look at the Section 4 exceptions, in particular subsection 2, exigent circumstances:

(A) The use of a MAVD by a Federal entity when exigent circumstances exist. For the purposes of this paragraph, exigent circumstances exist when the Federal entity possesses reasonable suspicion that under particular circumstances, swift action is necessary

(i) to prevent imminent danger of death or serious bodily harm to a specific individual; or

(ii) to counter an imminent risk of a terrorist attack by a specific individual or organization;

(iii) to prevent imminent destruction of evidence; or

(iv) to counter an imminent or actual escape of a criminal or terrorist suspect.

Well hope seems to have turned around and headed back from whence she came. For those of you not familiar with the slow unraveling of 4^th Amendment protections through the courts, the term of art “exigent circumstances” may not mean much. For law enforcement, “exigent circumstances” are everything, and unfortunately, have been the basis of the undoing of the warrant requirement of the 4^th Amendment. For instance, law enforcement does not need a warrant to search a car suspected of containing contraband because of said “exigent circumstances”⁸⁾See Wikipedia’s motor vehicle exception for a summary . The “exigent circumstances” justification has also been applied by law enforcement to enter/search a home when they reasonably suspect that evidence is going to be destroyed ⁹⁾See United States v. Reed, 935 F. 2d 641 [4th Cir.], cert. denied, 502 U.S. 960 [1991].

Before we get too upset, it is not reasonable for us to expect our senators to ameliorate a near century’s worth of case law that has diluted the meaning of the 4^th Amendment through a bill regulating drones. Though, it would be nice if the subject came up sometime soon.

In addition to the exigent circumstances in the above quoted sections, exceptions to the prohibitions of Section 5 and 6 include permitting drones for:

Assisting Border control

Fighting forest fires

Researching nature and wildlife

Surveying public lands

Hard to argue with these exceptions. I congratulate Sen. Heller for taking on a tough political issue that contains some risk¹⁰⁾the worse kind of risk at that, a Rumsfeldian “unknown unknown”. We will keep an eye on the bill and see how it is altered as it passes through the legislative process. In part II of our discussion, we will examine case law to determine how necessary this legislation is.

Read Senator Heller's bill here

Footnotes[+]

Footnotes
↑1	associated press
↑2	the whole article is worth reading, once you have finished here, of course
↑3	and probably take the battery out when it is not in use
↑4	with co-sponsor Sen. Ron Wyden of the great state of Oregon
↑5	aka drone or "mobile aerial-view device." Apparently some folks find the word “drone” offensive, mostly those who sell drones. If they want us to stop using the term “drone,” they are going to need a much catchier acronym
↑6	this is obviously all of our Clear Counsel law blog readers
↑7	The old "fruit of the poisonous tree" doctrine is alive!
↑8	See Wikipedia’s motor vehicle exception for a summary
↑9	See United States v. Reed, 935 F. 2d 641 [4th Cir.], cert. denied, 502 U.S. 960 [1991]
↑10	the worse kind of risk at that, a Rumsfeldian “unknown unknown”

General Interest / News - 06/19/2015

Is the Nevada the Proper Forum for your Lawsuit?

With society as mobile as it is, incidents that give rise to lawsuits¹⁾and forum disputes often occur across state lines. What happens if a Nevada resident gets hit by another driver while driving in California? Do you have to sue in California? May you sue in Nevada? The answer is, it depends. Many issues can become relevant to the decision of where to properly bring a lawsuit. If the lawsuit is not brought in the proper forum, a party may be faced with a motion to dismiss or to transfer the suit to the place where the defendant thinks the suit belongs.

How a court determines proper forum

Generally, a court will defer to the plaintiff’s choice in reference to forum, but there has to be a reasonable basis for that choice. In the example above, although the accident may have occurred in California, it may be the case that all of the Plaintiff’s doctors are located in Nevada, but the police officer who cited the other driver is in California. In a case where the witnesses are spread out, as long as there are ties to Nevada, a suit can be filed in Nevada. But it is not a guarantee that a court will agree to take jurisdiction over the matter if the court is convinced that California courts would be a better fit. Although the Plaintiff’s decision is strong a factor in where the case will be heard, the court will analyze which state has the highest stake in the outcome of the matter, where it will be most efficient to hold a trial in light of the location of all witnesses, and where the involved insurance companies are located.

Additionally, there may be insurance policies that dictate where suits may be filed and which state’s laws should apply. Even if an insurance policy dictates that Nevada law will apply to any suits involving that policy, it does not mean that a Nevada court must hear the case because California courts can apply Nevada laws.

If you get sued and believe the lawsuit was not filed in the proper place, you need to act right away. For instance, if you cause an accident while driving through Nevada but you live elsewhere, you will need a Nevada attorney to defend you. If you believe Nevada is not the proper state for the suit, you will need to object to the choice of forum right away, or you may end up waiving your right to argue that the suit was filed in the wrong place. If the accident occurred in Nevada, the doctors are in Nevada, the police officers involved are in Nevada, and there are no ties to your state except you, the Court may require you to appear and defend yourself in Nevada. The Court may find that you implicitly agreed to be sued in Nevada when you chose to drive on a Nevada road. But every case has different facts and could lead to a different result.

Because the factors and issues in deciding where to file a lawsuit are unique, it is always best to consult with an attorney. Clear Counsel Law Group can provide you with a free consultation, so contact us anytime.

Footnotes[+]

Footnotes
↑1	and forum disputes

Nevada Law - 06/18/2015

trust, probate, revocable living trust, estate planning

A Trusted Way to Circumvent Probate

A trust is a legal document that provides for an individual’s testamentary wishes. There are many benefits to creating a trust, irrevocable or revocable, that will aid the family or beneficiaries of the Decedent. This post will highlight only the benefits of creating a revocable living trust.

The main purpose, and likely most popular reason for creating a trust, is that a trust will allow for the transfer of assets upon the death of an individual without the necessity of probate. Probate can be a dreaded word for some, and a trust circumvents the entire probate process. Probate can be time consuming and expensive, even with a trusted and experienced law firm such as Clear Counsel Law Group. A trust will facilitate the distribution and transfer of assets from a decedent’s estate to his designated beneficiaries without the hassle and expense of probate.

A trust illustration

For a more illustrative view of trusts, think of a trust as a large box. The language of the instrument dictates who is to be in charge after the death of the grantor or trustee, (the successor trustee), and who is to receive assets from the grantor’s trust, (the beneficiaries). However, the trust terms apply only to assets that are placed inside the box. Missing this step of actually placing the assets inside of the box can have disastrous consequences for the beneficiaries. An asset that is not placed inside the box will not be under the purview of the trust, and in order for the asset to be transferred to the designated beneficiary, a probate estate would be required in the county that the individual died.

Personal property, such as home furnishings, paintings, televisions, electronics and jewelry are easily transferred into the trust, or placed in the box, without any effort. However, bank accounts or brokerage accounts and real property¹⁾real estate require a bit more effort. In order to move these latter assets into the box, a change of title on the financial account and a change of ownership on the deed is necessary to transfer these assets into a trust. The grantor will have the same power and authority to transfer, mortgage, or sell the assets, but now the assets are owned by the grantor as trustee of the trust.

A properly funded trust will allow for grieving family and friends to fulfill the final wishes of the decedent without the cost and time of a probate.

If you would like to speak with an experienced estate planning attorney about establishing a trust, or if you set up a trust years ago and would like a review of the your trust documents, please do not hesitate to contact Clear Counsel Law Group for a free consultation.

Footnotes[+]

Footnotes
↑1	real estate

Estate Planning / Probate - 06/18/2015

Bullying and Nevada Law

Although unclear if bullying is a recent phenomenon, or if it has just become more talked about in the public in recent years, is a real problem for kids across Nevada and the country.

The harrowing tragedy of a White Middle School student led to outrage in the Las Vegas Valley over the policies in place to protect kids from bullying by the Clark County School District.

The legislature and the governor, to their credit, stepped up and passed significant legislation in hope of curtailing the widespread bullying across the state.

What is Significant in the New Bullying Law?

Governor Sandoval signed Nevada Senate Bill (SB) 504 on 20 May 2015, with the new law going into effect 1 July 2015.

Allow me to quote the Legislative Counsel’s Digest that describes the two most significant elements of the new law:

Section 4 of this bill creates the Office for a Safe and Respectful Learning Environment within the Department of Education. The Office must maintain a 24- 14 hour, toll-free hotline and an Internet website by which a person may report an incident of bullying or cyber-bullying or receive information regarding anti-bullying efforts and organizations. The Office must also provide outreach and anti-bullying education and training

Section 12 of this bill changes requirements regarding the reporting and investigation of an incidence of bullying or cyber-bullying. Under section 12, a principal, or his or her designee, who receives a report of bullying or cyber-bullying must immediately take any necessary action to stop the bullying or cyber-bullying and ensure the safety and well-being of any reported victims. Before the end of that or the next school day, the principal or designee must notify the parents or guardians of every pupil reported to be involved in the bullying or cyber-bullying, as applicable. The principal or designee must interview all of the pupils reported to be involved and the parents or guardians of those pupils, and the investigation must be completed within 48 hours after receiving the report of the bullying or cyber-bullying. After completing the investigation, the principal or designee must complete a written report of the investigation. Subject to applicable federal privacy laws, the report must be made available to the parents or guardians of all the pupils who were reported to be involved in the bullying or cyber-bullying, as applicable.

As stated in the Section 12 summary, the principal of a Nevada school “must immediately take any necessary action to stop bullying” and has 48 hours¹⁾under NRS 388.1351, before SB 504 was signed into law, the principal had ten days to complete the investigation. As you can see, this time period has been significantly shortened to complete an investigation of the incident and to inform the parents of the complaint.

Section 12 also requires the principal to keep written documentation of these incidents.

In addition to the two sections highlighted above, NRS 388.121²⁾the state statute that declares bullying to be illegal has been amended to disallow bullying based on gender or sexual orientation.

This makes Nevada the 20^th state³⁾the District of Columbia also to include protections against bullying for LBGTQ students.

It is pretty clear from the new law that the state legislature has codified a duty for school district employees to do what is necessary, within reason, to prevent bullying.

If the school district employees do not abide by their duty to protect the kids under their care, civil liability may certainly arise.

But is it possible that the bully’s parent could also be liable for the harm caused?

May You Sue the Bully’s Parents?

The answer to this question, like so many issues in law, is unresolved and unclear. Nevada does have a statute that assigns liability of a minor to his or her parent for willful misconduct:

NRS 41.470 Imposition of liability for minor’s willful misconduct.

      1. Except as otherwise provided in NRS 424.085, any act of willful misconduct of a minor which results in any injury or death to another person or injury to the private property of another or to public property is imputed to the parents or guardian having custody and control of the minor for all purposes of civil damages, and the parents or guardian having custody or control are jointly and severally liable with the minor for all damages resulting from the willful misconduct.

      2. The joint and several liability of one or both parents or guardian having custody or control of a minor under this section must not exceed $10,000 for any such act of willful misconduct of the minor.

      3. The liability imposed by this section is in addition to any other liability imposed by law.

      (Added to NRS by 1957, 8; A 1967, 419; 1975, 652; 1979, 461; 1999, 897)

So the question is: will bullying by a school-age child be considered willful misconduct under NRS 41.470? The answer is possibly.

Like so many other tort issues, an answer will likely only be determined based on the specific facts of a bullying case.

Relevant inquiries might be: How old is the bully/victim? What is the character of the bullying? Did the bully’s parents know about the behavior in question, and if they were aware of the behavior, did the parents take actions to prevent the bully from committing further harm? What type of harm did the victim suffer? Etc.

States with similar statutes assigning liability to the parents for a minor’s willful misconduct have construed bullying to be willful misconduct.⁴⁾See these articles describing bullying law in Texas and New Jersey for more information

In closing, one should not discount the possibility that the bully’s parents may be included in a bullying lawsuit.

Footnotes[+]

Footnotes
↑1	under NRS 388.1351, before SB 504 was signed into law, the principal had ten days to complete the investigation. As you can see, this time period has been significantly shortened
↑2	the state statute that declares bullying to be illegal
↑3	the District of Columbia also
↑4	See these articles describing bullying law in Texas and New Jersey for more information

General Interest / Las Vegas / Nevada Law / Personal Injury / Wrongful Death - 06/17/2015

The New Nevada Gun Law, Part IV: The Blue Card

We made it to part IV of our series on the new gun legislation here in Nevada, and what a journey it has been!

Part I described how the “Castle Doctrine” has been expanded to include car theft.

Part II showed how the new law prevents domestic abusers from owning guns legally; part III discussed the expansion of civil liability protection for those who choose to use force to protect their homes and vehicles.

Part IV is where we bring it all home with the much anticipated (and desired by gun owners) abolition of Clark County’s Blue Card law¹⁾seems the legislature finally got tired of waiting for the County Commissioners.

I opened each of the first three posts with the statement of intent of the law by State Senator Mark Roberson; I will do so again now:

To keep guns out of the hands of those who have proven their propensity to commit violence against those they supposedly love and should protect;

To allow law abiding gun owners to appropriately defend themselves in their vehicles as they currently can in their homes; and

To ensure that our Second Amendment rights are administered in a fair and uniform way across the State, and to provide a means of redress when that is not the case.

Part IV concerns that last statement by Sen. Roberson. I will present the law and allow you to determine how specious a claim that really is.

To begin, in case you are not a Southern Nevada gun owner, you may be unfamiliar with the blue card law.

Clark County’s Blue Card Law

It is unclear how long the blue card law²⁾it acquired the nickname from the blue card issued by the Sheriff upon registration of the firearm has been effect. The County Code lists the origin as 1967, but multiple secondary sources claim the blue card law goes back to 1948.

Supposedly, the hope of the County Commission was to contain the gangster violence from the mobsters drawn here from the opening of the downtown casinos. It states:

12.04.110 Registration of pistols within seventy-two hours.

Any resident of the county receiving title to a pistol, whether by purchase, gift, or any other transfer, and whether from a dealer or from any other person, shall, within seventy-two hours of such receipt, personally appear at the county sheriff's office, together with the pistol, for the purpose of registering the same with the sheriff. It shall be the duty of the sheriff to register the pistol, and he may, and is hereby authorized to cooperate in any manner he sees fit with other law enforcement agencies, and with licensed dealers, relative to registration of pistols, so that efficient registration shall be secured at minimum cost and duplication.

While the blue card law is certainly tough, there is not an available, useful metric to determine how and if it is effective in controlling gun crime. Many gun owners contend, and have been contending, that the law is unnecessary with the background check requirements now in effect.

Other larger, more crime-ridden cities³⁾New York, Chicago, Washington D.C. to name a few have much stricter gun control legislation and still have significant gun violence. Would there be even more violence without the legislation? There is no way to know for sure how effective a blue card law is.

Although the legislation may be necessary, it most certainly is not sufficient to curtailing gun violence. As you will see in Section 8 of SB 175, a majority of the legislature feels the blue card law is neither necessary nor sufficient.

Section 8 of the Nevada Gun Law Regarding the Blue Card

Sections 8, 9, and 10 of SB 175 are very similar in nature; in fact, the portions reproduced below are identical except for whom the amendments are addressed to.

Section 8 concerns county commissions⁴⁾Here’s lookin’ at you, Clark, Section 9 refers to city councils, and Section 10 to town boards. In hopes of this article not mutating into a New Yorker feature-piece length, I will discuss only Section 8, but the analysis applies to 9 and 10 as well.

Sec. 8. NRS 244.364 is hereby amended to read as follows:

The Legislature hereby declares that:

(a) The purpose of this section is to establish state control over the regulation of and policies concerning firearms, firearm accessories and ammunition to ensure that such regulation and policies are uniform throughout this State and to ensure the protection of the right to keep and bear arms, which is recognized by the United States Constitution and the Nevada Constitution.

(b) The regulation of the transfer, sale, purchase, possession, carrying, ownership, transportation, storage, registration and licensing of firearms, firearm accessories and ammunition in this State and the ability to define such terms is within the exclusive domain of the Legislature, and any other law, regulation, rule or ordinance to the contrary is null and void.

(c) This section must be liberally construed to effectuate its purpose.

2. Except as otherwise provided by specific statute, the Legislature reserves for itself such rights and powers as are necessary to regulate the transfer, sale, purchase, possession, carrying, ownership, transportation storage, registration and licensing of firearms, firearm accessories and ammunition⁵⁾I know I cannot think of any more relevant gun nouns; quite the comprehensive list in Nevada and to define such terms. No county may infringe upon those rights and powers.

3. A board of county commissioners may proscribe by ordinance or regulation the unsafe discharge of firearms.

4. Any ordinance or regulation which is inconsistent with this section or which is designed to restrict or prohibit the sale, purchase, transfer, manufacture or display of firearms, firearm accessories or ammunition that is otherwise lawful under the laws of this State is null and void, and any official action taken by an employee or agent of a county in violation of this section is void.

5. A board of county commissioners shall repeal any ordinance or regulation described in subsection 4, and any such ordinance or regulation that is posted within the county must be removed.

6. A board of county commissioners shall cause to be destroyed any ownership records of firearms owned by private persons which are kept or maintained by the county or any county agency, board or commission, including, without limitation, any law enforcement agency, for the purposes of compliance with any ordinance or regulation that is inconsistent with this section. The provisions of this subsection do not apply to the ownership records of firearms purchased and owned by any political subdivision of this State.

Nevada is what is called a “home rule” state, meaning the counties/municipalities only have the authority to pass laws when explicitly given permission to by the state legislature⁶⁾for the three people out there who get all hot and bothered over a home rule vs. Dillon’s Rule debate, stay tuned! The Clear Counsel law blog will satiate you soon enough.

Apparently the state government has had just about enough of Clark County Commission governing its own gun laws. Subsection 3 does permit the smallest amount of regulation for “unsafe discharge” of firearms; we cannot have gun play on the Strip, which would be bad for business⁷⁾want to guess where the majority of the state’s tax revenue comes from?.

Beyond invalidating most gun regulation, the county even has to destroy any ownership records⁸⁾now is the time to get your “Don’t tread on me” serpentine out.

Subsection 1(c)’s reference to “liberal construction” is a gentle reminder to those ‘activist’ judges of ours to watch themselves; the legislature means business.

You Localities Best Do What We Say…

Now back to SB 175:

7. Any person who is adversely affected by the enforcement of an ordinance or regulation that violates this section on or after October 1, 2015, may file suit in the appropriate court for declarative and injunctive relief and damages attributable to the violation. Notwithstanding any other provision of law, such a person is entitled to:

(a) Reimbursement of actual damages, reasonable attorney’s fees and costs which the person has incurred if, within 30 days after the person commenced the action but before a final determination has been issued by the court, the board of county commissioners repeals the ordinance or regulation that violates this section.

(b) Liquidated damages in an amount equal to two times the actual damages, reasonable attorney’s fees and costs incurred by the person if, more than 30 days after the person commenced the action but before a final determination has been issued by the court, the board of county commissioners repeals the ordinance or regulation that violates this section.

(c) Liquidated damages in an amount equal to three times the actual damages, reasonable attorney’s fees and costs incurred by the person if the court makes a final determination in favor of the person.

In case the County Commission is entertaining any thoughts of disobeying their overlords in Carson City, they are being informed that there will be consequences. Starting 1 October, gun owners may use the court system to ensure SB 175 comes into effect in a timely manner.

Often legislatures will use damages multipliers to incentivize attorneys to take on cases of social significance⁹⁾most famously, the treble damages available through federal civil rights lawsuits, called “1983 actions” from the location of the laws in the U.S. code..

The same theory is applied here in subsection 7(c). Note in subsection 7(b), that if a locality can reduce treble damages to double the damages if they revise/repeal the laws subject of the lawsuit before a judgment is handed down.¹⁰⁾Cass Sunstein and his behavioral economics pals must love and hate this; if only we could get a comment

Wittgenstein Would Be Proud (But Would He Carry a Blue Card?)

I¹¹⁾a word’s function vs. essence, a Wiki summary. Beyond the primary material, see also David Markson’s Wittgenstein’s Mistress and David Foster Wallace’s The Broom of the System do not know about you, but I for one, cannot wait for the legislative history for the 2015 session to come out¹²⁾the event of summer, right after EDC!. In particular, I want to know how the following definition worked its way into sections 8,9, and 10 of SB 175:

(d) “Person” includes, without limitation:

(3) A membership organization whose members include a person described in subparagraphs¹³⁾which describe actual people (1) and (2) and which is dedicated in whole or in part to protecting the legal, civil or constitutional rights of its members.

Why do citizens need “membership organization[s]” to sue on their behalf? The only speculation I have is too snarky to be constructive. But “personhood” in America continues to develop in strange and mysterious ways.

Are you curious why the legislature did not wait for the 1 October deadline to pass to see if the municipalities will follow the law in good faith and/or if citizen-plaintiffs could successfully sue their way into compliance? Me too.

Well, there you have it. What will the Clark County Commission do with in response? We will keep an eye on it, and through us, so can you.

Footnotes[+]

Footnotes
↑1	seems the legislature finally got tired of waiting for the County Commissioners
↑2	it acquired the nickname from the blue card issued by the Sheriff upon registration of the firearm
↑3	New York, Chicago, Washington D.C. to name a few
↑4	Here’s lookin’ at you, Clark
↑5	I know I cannot think of any more relevant gun nouns; quite the comprehensive list
↑6	for the three people out there who get all hot and bothered over a home rule vs. Dillon’s Rule debate, stay tuned! The Clear Counsel law blog will satiate you soon enough
↑7	want to guess where the majority of the state’s tax revenue comes from?
↑8	now is the time to get your “Don’t tread on me” serpentine out
↑9	most famously, the treble damages available through federal civil rights lawsuits, called “1983 actions” from the location of the laws in the U.S. code.
↑10	Cass Sunstein and his behavioral economics pals must love and hate this; if only we could get a comment
↑11	a word’s function vs. essence, a Wiki summary. Beyond the primary material, see also David Markson’s Wittgenstein’s Mistress and David Foster Wallace’s The Broom of the System
↑12	the event of summer, right after EDC!
↑13	which describe actual people

Las Vegas / Nevada Law / News - 06/17/2015

gun law, 2nd amendment, stand your ground, Nevada, self-defense

Nevada's New Gun Law, Part III

Welcome to Part III of our series discussing the Senate Bill (SB) 175, Nevada's sweeping new gun law. Part I discussed the expansion of the classification of justifiable homicide to include automobile invasions¹⁾in addition to home invasions, which was already permitted. Part II examined how SB 175 expanded the class of persons excluded from owning forearms to include people accused of domestic violence.

Here in Part III we will examine the updates to Nevada Revised Statutes (NRS) that expand the allowable instances of justifiable force that a person may not be held civilly liable under law.

Again, I will reproduce the statement of intent for SB 175 given by State Senator Michael Roberson:

To keep guns out of the hands of those who have proven their propensity to commit violence against those they supposedly love and should protect;

To allow law abiding gun owners to appropriately defend themselves in their vehicles as they currently can in their homes; and

To ensure that our Second Amendment rights are administered in a fair and uniform way across the State, and to provide a means of redress when that is not the case.

I believe Section 7 of SB 175 is intended to address his second point.

Section 7 of the gun law

The portion of the NRS amended by Section 7 updates the law describing legal presumptions made when force is used by a property owner against invasion or theft:

NRS 41.095 is hereby amended to read as follows: 41.095 1. For the purposes of NRS 41.085 and 41.130, any person who uses:

(a) While lawfully in his or her residence , in transient lodging or in a motor vehicle that is not his or her residence, force which is intended or likely to cause death or bodily injury is presumed to have had a reasonable fear of imminent death or bodily injury to himself or herself or another person lawfully in the residence, transient lodging or motor vehicle if the force is used against a person who is committing burglary, invasion of the home or grand larceny of the motor vehicle with the use or threatened use of a deadly weapon and the person using the force knew or had reason to believe that burglary, invasion of the home or grand larceny of the motor vehicle with the use or threatened use of a deadly weapon was being committed. An action to recover damages for personal injuries to or the wrongful death of the person who committed burglary, invasion of the home or grand larceny of the motor vehicle with the use or threatened use of a deadly weapon may not be maintained against the person who used such force unless the presumption is overcome by clear and convincing evidence to the contrary.

(b) Force which is intended or likely to cause death or bodily injury is immune from civil liability in an action to recover damages for personal injuries to or the wrongful death of a person against whom such force was used if the use of such force was justified under the applicable provisions of chapter 200 of NRS²⁾Chapter 200 of the NRS classifies crimes and defenses. As referenced here, the legislature is referring to subsections of Chapter 200 that define “justified homicide” [NRS 200.120] and similar situations relating to the use of such force.

Subsection (a) is awfully wordy³⁾brownie point to anyone who made it all the way through instead of skimming to the commentary. Allow me to simplify. The intent of the statute is to make it difficult for thieves to sue property owners for injuries that occurred when the property owner used force to defend his or her property. Section 7 amended the law by adding grand larceny of a vehicle to the list that includes burglary and home invasion, so that it is presumed that these property owners “ha[ve] a reasonable fear of imminent death or bodily injury.”

Why does this matter? Because that reasonable fear is a sustainable defense against a civil suit brought by a robber for the injuries suffered during the crime, and the robber will not be able to recover damages. The robber must provide “clear and convincing evidence to the contrary.”⁴⁾recall if a “propensity of the evidence” is means that an event occurred with a 51% likelihood, then “clear and convincing” is halfway between “propensity” and “beyond a reasonable doubt.” I know that is still ambiguous, unfortunately, so is much of the law. Unless the hypothetical robber in our scenario is not actually committing a crime, it is difficult to imagine scenarios that the “clear and convincing” standard could be met.

SB 175 amended the NRS to add the entirety of subsection (b). This section is more extreme than subsection (a) in that any force that is considered justifiable under Chapter 200 of the NRS is immune from civil liability⁵⁾there is no clear and convincing exception. It functions additionally as a catch-all for the use of force in scenarios that may not technically be robbery, grand larceny, or a home invasion⁶⁾if for example, the confrontation took place outside the home, while the victim/shooter was walking to his or her car.

The intent of the legislature is clear: property owners have the right to use force to protect their property⁷⁾within reason, and criminals should not have the right to use the legal system to recover damages for injuries sustained from illicit behavior. As to how necessary this is, or if it produces the outcome hoped for, will be a discussion for another time.

Stay tuned for part IV, where we learn what can happen to municipalities that do not obey the new law by 1 October of this year.

Footnotes[+]

Footnotes
↑1	in addition to home invasions, which was already permitted
↑2	Chapter 200 of the NRS classifies crimes and defenses. As referenced here, the legislature is referring to subsections of Chapter 200 that define “justified homicide” [NRS 200.120] and similar situations
↑3	brownie point to anyone who made it all the way through instead of skimming to the commentary
↑4	recall if a “propensity of the evidence” is means that an event occurred with a 51% likelihood, then “clear and convincing” is halfway between “propensity” and “beyond a reasonable doubt.” I know that is still ambiguous, unfortunately, so is much of the law
↑5	there is no clear and convincing exception
↑6	if for example, the confrontation took place outside the home, while the victim/shooter was walking to his or her car
↑7	within reason

Las Vegas / Nevada Law / News - 06/16/2015

Foreclosure and the Homeowner's Bill of Rights

In October of 2013, the so-called “Homeowner’s bill of rights” went into effect in Nevada. Although the term “bill of rights” has been applied to laws that do not necessarily assist consumers in the past, Senate Bill (SB) 321¹⁾of 2013 does justice to the everyday connotation of the phrase “bill of rights.” I have read through the bill ²⁾you are welcome, and have extracted the parts I feel are most beneficial to a homeowner on the brink of foreclosure.

Necessary foreclosure notice to provide to a homeowner

We will start with Section 10 of SB 321 that describes a summary of the information a lender must provide to a borrower at least thirty days before recording a notice of default with the county. The summary must include:

1. The total amount of payment necessary to cure the default and reinstate the residential mortgage loan or to bring the residential mortgage loan into current status;

2. The amount of the principal obligation under the residential mortgage loan;

3. The date through which the borrower’s obligation under the residential mortgage loan is paid;

4. The date of the last payment by the borrower;

5. The current interest rate in effect for the residential mortgage loan, if the rate is effective for at least 30 calendar days;

6. The date on which the interest rate for the residential mortgage loan may next reset or adjust, unless the rate changes more frequently than once every 30 calendar days;

7. The amount of the prepayment fee charged under the residential mortgage loan, if any;

8. A description of any late payment fee charged under the residential mortgage loan;

9. A telephone number or electronic mail address that the borrower may use to obtain information concerning the residential mortgage loan; and

10. The names, addresses, telephone numbers and Internet website addresses of one or more counseling agencies or programs approved by the United States Department of Housing and Urban Development.

In addition, the lender is required to inform the borrower that s/he may request a copy of the mortgage or deed of trust, a copy of an assignment of the lending instrument, and a copy of the borrower’s payment history.

No more dual tracking

Section 13 of the SB 321 addresses the previous tendency of lenders to negotiate with borrowers, on the one hand, while still pursuing foreclosure on the home. “If a borrower submits an application for a foreclosure prevention alternative…[the lender’s agent] may not commence a civil action for a foreclosure sale.”

The lender may put the foreclosure back on track if the borrower does not follow through with the necessary actions required by the foreclosure alternative.

Single point of contact

Many homeowners expressed frustration that there seemed to be no fixed number of people involved in a foreclosure proceeding, with some making claims that others would not live up to, and others not having the authority to make any alterations to the loan agreement. In turn, the legislature drafted Section 14 of SB 321 that states:

1. If a borrower requests a foreclosure prevention alternative, the mortgage servicer must promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact.

2. A single point of contact is responsible for:

(a) Communicating the process by which a borrower may apply for an available foreclosure prevention alternative and the deadline for any required submissions to be considered for the foreclosure prevention alternatives.

(b) Coordinating receipt of all documents associated with the available foreclosure prevention alternatives and notifying the borrower of any missing documents necessary to complete an application for a foreclosure prevention alternative.

(c) Having access to current information and personnel sufficient to timely, accurately and adequately inform the borrower of the current status of the foreclosure prevention alternative.

(d) Ensuring that the borrower is considered for all foreclosure prevention alternatives offered by, or through, the mortgage servicer and for which the borrower is or may be eligible.

(e) Having access to a person or persons with the ability and authority to stop the foreclosure process when necessary.

Right of homeowner to sue

The legislature also felt that homeowners needed legal recourse against lenders that were not operating in good faith. Under Section 16, “if the court finds that the material violation was intentional or reckless, or resulted from willful misconduct by a mortgage servicer, mortgagee, beneficiary of the deed of trust or an authorized agent of such a person, the court may award the borrower the greater of treble³⁾meaning triple the amount actual damages or statutory damages of $50,000.” Hopefully, this provides sufficient disincentive to prevent continued bad faith.

Before we wrap up, it is important to note that these provisions do not apply to lenders that have foreclosed less than one hundred homes in the previous year.

Footnotes[+]

Footnotes
↑1	of 2013
↑2	you are welcome
↑3	meaning triple the amount

Bankruptcy / Nevada Law - 06/16/2015

gun law, Nevada, 2nd Amendment, self-defense

Nevada's New Gun Law, Part II

Previously, in our opening dialogue of the new gun law passed by the 2015 Nevada legislature, we examined¹⁾we may have opined a bit the new law in context of the stated intent of one of its sponsors, State Senator Michael Roberson. In case you missed part I, here is Sen. Roberson’s stated intent for the new law:

To keep guns out of the hands of those who have proven their propensity to commit violence against those they supposedly love and should protect;

To allow law abiding gun owners to appropriately defend themselves in their vehicles as they currently can in their homes; and

To ensure that our Second Amendment rights are administered in a fair and uniform way across the State, and to provide a means of redress when that is not the case.

Part I easily established how Sen. Roberson’s second objective is accomplished in Sections 1 and 2 of Senate Bill (SB) 175 by not only allowing for justifiable homicide in the home and automobile, but by creating a rebuttable presumption that a defense of a home or automobile is justified.

Now we will examine Sen. Roberson’s first prerogative listed above. I presume he is referencing keeping guns away from folks generally seen as dangerous by society. Sections 3 and 5 of SB 175 best accomplish his stated intent.

Section 3 of the gun law

Section 3 is about as close as the Nevada Revised Statutes get to any sort of gun control. It states:

Sec. 3. NRS 202.360 is hereby amended to read as follows:

1. A person shall not own or have in his or her possession or under his or her custody or control any firearm if the person:

(a) Has been convicted in this State or any other state of a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921(a)(33)²⁾In case you have not memorized the entire U.S. Code yet [shame on you], 18 U.S.C. § 921(a)(33) states that a misdemeanor crime of domestic violence “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”;

(b) Has been convicted of a felony in this State or any other state, or in any political subdivision thereof, or of a felony in violation of the laws of the United States of America, unless the person has received a pardon and the pardon does not restrict his or her right to bear arms;

(c) Is a fugitive from justice; or

(d) Is an unlawful user of, or addicted to³⁾I wish I could explain to you why the conjunction “or” is used here. Can one be addicted to drugs without being a user? Additionally, each of these terms seem rather broad. How long does a person have to go without a substance before s/he is no longer a “user”? A discussion over the term “addiction” would be even more confusing. I think it is best just to take away that doing drugs and playing with guns is illegal, any controlled substance. A person who violates the provisions of this subsection is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000.

2. A person shall not own or have in his or her possession or under his or her custody or control any firearm if the person:

(a) Has been adjudicated as mentally ill or has been committed to any mental health facility; or

(b) Is illegally or unlawfully in the United States. A person who violates the provisions of this subsection is guilty of a category D felony and shall be punished as provided in NRS 193.130.

Perpetrators of domestic violence, fugitives, felons, the drug dependent, the mentally ill, these are groups of folks (I hope) most of us can agree should not be sold, or possess firearms. The amended law added subsection (a), above, to include domestic violence aggressors on the prohibited list. This seems reasonable on its face; if a person is willing to hit his or her partner, why would gun violence be out of the question⁴⁾Yet, I think of the quote often used by gun advocates “legal gun owners do not commit gun crimes” and wonder how that applies.

Section 5 of the gun law

Section 5 addresses folks subject to a temporary restraining order:

Sec. 5. Chapter 33 of NRS is hereby amended by adding thereto a new section to read as follows:

1. If a court issues an extended order pursuant to NRS 33.030⁵⁾the text of the statute is particularly wordy, so I will not reproduce it here. Just know that NRS 33.030 provides instructions for how a judge may issue a Temporary Restraining Order, the adverse party shall not subsequently purchase or otherwise acquire any firearm during the period that the extended order is in effect.

2. A person who violates the provisions of subsection 1 is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000.

Simply put, if a person is subject to a temporary restraining order, s/he may not acquire a firearm for the period of time covered by the order. To be subject to a temporary restraining order, the person must have demonstrated some violent inclination; this addition to the NRS seems entirely reasonable.

I saved the best for last, but it will have to wait for next time! SB 175 establishes a new theory liability for armed citizens to sue their municipality if SB 175 is not carried out accordingly, and the new law also made it much more difficult to rob a home or car and then sue the owner for gun-related injuries. Stay tuned!

Footnotes[+]

Footnotes
↑1	we may have opined a bit
↑2	In case you have not memorized the entire U.S. Code yet [shame on you], 18 U.S.C. § 921(a)(33) states that a misdemeanor crime of domestic violence “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”
↑3	I wish I could explain to you why the conjunction “or” is used here. Can one be addicted to drugs without being a user? Additionally, each of these terms seem rather broad. How long does a person have to go without a substance before s/he is no longer a “user”? A discussion over the term “addiction” would be even more confusing. I think it is best just to take away that doing drugs and playing with guns is illegal
↑4	Yet, I think of the quote often used by gun advocates “legal gun owners do not commit gun crimes” and wonder how that applies
↑5	the text of the statute is particularly wordy, so I will not reproduce it here. Just know that NRS 33.030 provides instructions for how a judge may issue a Temporary Restraining Order

Las Vegas / Nevada Law / News - 06/15/2015

Nevada's New Gun Law

Much to the delight of the pro-Second Amendment press, Nevada passed a sweeping gun law in the just-adjourned legislative session. The internets are full of hot-takes on the gun law, but it might be time for a more sober¹⁾call it “lukewarm”analysis of the text of the new law; then we will be able to bloviate with much greater ease.

State Senator Michael Roberson²⁾Republican, Henderson stated the goals of the legislation during a meeting of the Assembly Committee on Judiciary³⁾from 23 April 2015:

To keep guns out of the hands of those who have proven their propensity to commit violence against those they supposedly love⁴⁾This sentiment feels a bit snarky; I speculate that Sen. Roberson is referring to domestic violence cases and should protect;

To allow law abiding gun owners to appropriately defend themselves in their vehicles as they currently can in their homes; and

To ensure that our Second Amendment rights are administered in a fair and uniform way across the State, and to provide a means of redress when that is not the case.

We will now go through the first two sections of Senate Bill (SB) 175, which address Sen. Roberson’s second objective listed above, while the first and third will be reserved for next time.

Section 1 of the Gun Law

The first section of SB175 addresses the definition of justifiable homicide⁵⁾you may have heard this referred to as the "Castle Doctrine":

Section 1. NRS 200.120 is hereby amended to read as follows:

1. Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of an occupied habitation, an occupied motor vehicle or person, against one who manifestly intends or endeavors to commit a crime of violence, or against any person or persons who manifestly intend and endeavor, in a violent, riotous, tumultuous or surreptitious manner, to enter the occupied habitation or occupied motor vehicle, of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein. (emphasis added)

2. A person is not required to retreat before using deadly force as provided in subsection 1 if the person:

(a) Is not the original aggressor;

(b) Has a right to be present at the location where deadly force is used; and

(c) Is not actively engaged in conduct in furtherance of criminal activity at the time deadly force is used.

Addressing Sen. Roberson’s second objective, besides being permitted to defend your home with lethal force, the law allows lethal force to be used in defending an occupied car⁶⁾as in not empty, I doubt this statute would protect you from shooting someone breaking into your car if you or a loved one are not inside of it.

Some states require a person to flee if it reasonable to do so. Nevada does not, provided the three elements of subsection 2 are met. The law is even more protective than you may realize; wait until you see Section 2.

Section 2 of the Gun Law

Section 2 elaborates on the permissive deadly force established in subsection 2 of Section 1.

2. There is a rebuttable presumption that the circumstances were sufficient to excite the fears of a reasonable person and that the person killing really acted under the influence of those fears and not in a spirit of revenge if the person killing:

(a) Knew or reasonably believed that the person who was killed was entering unlawfully and with force, or attempting to enter unlawfully and with force, the occupied habitation or occupied motor vehicle, of another;

(b) Knew or reasonably believed that the person who was killed was committing or attempting to commit a crime of violence; and

(c) Did not provoke the person who was killed. (emphasis added)

The key words are “rebuttable presumption,” which mean “A presumption which may be rebutted by evidence. Otherwise called a 'disputable' presumption. A species of legal presumption which holds good until disproved.”⁷⁾Black’s Law Dictionary.

Therefore, “holds good until disproved” as applied, will assume that the shooter defending his/her home or automobile is in the right until the person who was shot can prove otherwise.

I assume these sections of SB 175 are written to dissuade folks inclined to rob homes or automobiles with the presumption that the potential violent robber will think twice about the crime knowing that s/he may be legally killed by the owner. I question if the folks motivated to committ violent crime respond to disincentives in the way the law hopes they do.

Although we are having so much fun, we will have wait and continue our discussion of SB 175 until next week’s episode. Included will be how the new law assists victims of domestic violence, and the law’s new theories of liability.

Footnotes[+]

Footnotes
↑1	call it “lukewarm”
↑2	Republican, Henderson
↑3	from 23 April 2015
↑4	This sentiment feels a bit snarky; I speculate that Sen. Roberson is referring to domestic violence cases
↑5	you may have heard this referred to as the "Castle Doctrine"
↑6	as in not empty, I doubt this statute would protect you from shooting someone breaking into your car if you or a loved one are not inside of it
↑7	Black’s Law Dictionary

Las Vegas / Nevada Law / News - 06/12/2015

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