nevada national monument

How the President Applied the Antiquities Act to Create the New Nevada National Monument

“The new Basin and Range National Monument is an area where the Mojave Desert meets the Great Basin and Joshua trees and cactus give way to a sea of sagebrush. It is home to desert bighorn sheep, mule deer, elk and pronghorn antelope. The land provided food and shelter for ancient people and we can still see the history of those people today in the incredible rock art panels. This area is a time capsule of our pioneering western history, from early explorers to mining to the ranching that still exists today. In its center is City, a grand modern art sculpture by world renowned artist Michael Heizer. It is a peaceful place. To me, it feels like home.” –Senator Harry Reid1)Elko Daily

 

“The immensity of man’s power to destroy imposes a responsibility to preserve.” -Congressman John F. Lacey, (R-IA), 1901

****Late December 2016 Update****

Image

28 December: President Obama, applying the very powers discussed below, named Gold Butte a national monument.

See below to learn about the political craftswork done by President Teddy Roosevelt to get this law put into effect.

(You must be wondering why the Congress would ever assent to assign such unchecked power to the executive..)

[End note]

Last week, President Obama, with the authority granted to his office by the Antiquities Act of 1906, declared 704,000 acres of land2)approximately the size of Rhode Island north of the Las Vegas Valley the Basin and Range National Monument.  Although much of the national press accords the credit3)or blame depending what you read to Sen. Reid for the creation of the monument; however, only President Obama has the authority to create the monument, and he alone decided if and when to act.

There are not many areas that the President has authority to act unilaterally; creating national monuments is one of the few.  Why was the office of the President granted this authority? And how has the power been applied in the 100 years since the act was signed into law by President Theodore Roosevelt?

Let’s get to it.

The Text and History of the Antiquities Act

The Act for the Preservation of American Antiquities (the Antiquities Act) was a product of the progressive political movement4)which consisted of members of both parties that began in the 1890s and culminated in 1916 with the creation of the National Park Service. Congress received multiple reports from the American Southwest that significant historical sites were being vandalized and pillaged by folks that want to steal artifacts and natural resources. Rep. John Lacy5)of the great state of Iowa attempted for more than ten years to pass this legislation to protect these areas, and finally, with the political assistance of the immensely popular President Roosevelt6)for more on President Roosevelt’s political aptitude, see Edmund Morris’ wonderful Theodore Rex, he was finally able to pass the bill in June of 1906.7)In fact, the bill originally was known as the “Lacy Act” at first, until it confused folks because Rep. Lacy’s bill to protect national wildlife was also referred to by the same name. People began to refer to this bill as the Antiquities Act as a means to differentiate. Section 2 of the bill states:

The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected. When such objects are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.8)16 U.S.C. [United States Code] 431, 1906(emphasis added) 9)Source

 

Richard Sellers10)a historian for the National Park Service wrote a great piece on the history of Federal preservation of land.  In it, he provides some context for how and why the Antiquities Act was passed:

In the realm of historic and natural preservation on the nation’s public lands, no law had ever approached the scope of the 1906 Antiquities Act. Much more broadly than with individual national park enabling legislation, the Act made explicit that preservation of historic, archeological, and other scientific sites on lands controlled by the federal government was indeed a federal responsibility. Somewhat analogous to the government’s concern for protecting private interests on private property, the national government accepted its obligation to protect the broad public interest on public lands, in this instance at places containing important remnants of the American past and significant scientific areas. The Act also made it clear that, unlike the forest reserves, the primary value of such special places lay not in their commercial value—in economics, sustainable harvesting, and profits—but in their contribution to education and knowledge for the general public good through research conducted and information disseminated by scientific and educational institutions.11)pg 293 Read the article here

 

The reasoning behind the law is fairly intuitive.  The language used is less so.  How is 700,000 acres of land a monument12)Merriam-Webster defines “monument” as “a building, statue, etc. that honors a person or event” and “a building or place that is important because of when it was built or because of something in history that happened there” 13)Merriam-webster? Does the term “scientific interest” really mean(in application any non-commercial interest? More from Mr. Sellers:

In what was from the first its most prominent section, the Act authorized the President to reserve special places located on lands controlled by the federal government: to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” These places were to be designated “national monuments,” a term Hewett14)Edgar Lee Hewett was an influential, New Mexico-based archeologist who worked in Las Vegas for some time. devised, which distinguished them from national parks. While it employed the same proclamation procedure that had been used to establish the Casa Grande Ruin Reservation, it gave the President far greater authority, moving from the one-site authority for Casa Grande to placing no limits on the number of sites presidents could set aside. It thus significantly advanced the preservation authority of the Executive Branch, from not only managing preserved places such as archeological sites, battlefields, and national parks, but also establishing areas to be preserved. The Act’s inclusion of the phrase “scientific interest” opened the way for presidential proclamations that ultimately would set aside a huge array of scenic national monuments having important scientific values. (In 1978, the “scientific interest” wording of the Antiquities Act would help provide statutory authority for President Jimmy Carter to proclaim national monuments in Alaska that added more than 40 million acres to the national park system.) 15)Id. pg 294

 

Very sneaky, indeed. President Roosevelt went on to declare Devils Tower16)of Wyoming the first national monument under the new law in September of that year.  Like most power granted to the executive branch17)see the War Powers, generally, the reach of the authority expanded as the years passed.

This type unilateral executive power of the Antiquities Act was not unopposed

Our friends in the Congress have not18)and are not huge fans of the President’s unfettered authority19)at least when it comes at no political risk to themselves to declare lands sole property of the federal government. The first spat between the President and Congress occurred in the 1940s when FDR wanted to expand Grand Teton National Park to include the area surrounding Jackson Hole, Wyoming. Congress refused, “because, in the words of Sen. Henry Ashurst of Arizona, ‘the other States are not going to put over on Wyoming something that her two senators do not want.’”20) Source

Congress, irritated that the natural wealth and beauty of Wyoming could no longer be sold for profit to the highest bidder21)I kid, I am sure this was only about state sovereignty, passed the first exception to the Antiquities Act which prohibits the creation of any national monuments in Wyoming unless there is express authorization from Congress22)16 U.S.C. 431a, by express I mean written, passed legislation.

President Carter was the next chief executive to take the power granted by the Antiquities Act beyond what Congress found palatable. In the late 1970s, Congress could23)or would depending your perspective not pass legislation to protect wilderness of Alaska.  President Carter took on the political risk and declared 56 million acres as a national monument using the Antiquities Act. “Like FDR, [President Carter] sidestepped Congress, which up to that point had failed to pass an Alaskan lands protection bill because Alaskans opposed it. Alaskans in the area were incensed, and citizens in Fairbanks even burned President Carter in effigy.”24)see the NPR story cited above.

Note though, that no matter what folks said (or burned), the national monument designation remained.

Some politicians are unhappy with the new Nevada national monument

This discord between the President and the Congress/state governments continues.  Governor Sandoval, Senator Heller, Rep. Heck, and Rep. Hardy all have made public statements condemning the President’s use of the Antiquities Act to create the new Nevada National Monument.  All are displeased with not being more involved in the process, with Rep. Hardy expressing additional concerns about the national monument hurting economic growth in his congressional district.  When asked by KNPR about the Republican objections, Sen. Reid responded “I told them all what I was going to do,” he said. “Maybe they should have said something then.” 25)Source.

As an added externality, could this be Yucca Mountain’s last stand? There is speculation now that it will be all but impossible to build the railroad necessary to connect a potential Yucca Mountain repository.  To quote Robert Halstead, director of the Nevada Agency for Nuclear Projects, “This is the final nail in the coffin.”26)Source

 

Read more about the Basin and Ridge national monument here

Footnotes   [ + ]

1. Elko Daily
2. approximately the size of Rhode Island
3. or blame depending what you read
4. which consisted of members of both parties
5. of the great state of Iowa
6. for more on President Roosevelt’s political aptitude, see Edmund Morris’ wonderful Theodore Rex
7. In fact, the bill originally was known as the “Lacy Act” at first, until it confused folks because Rep. Lacy’s bill to protect national wildlife was also referred to by the same name. People began to refer to this bill as the Antiquities Act as a means to differentiate.
8. 16 U.S.C. [United States Code] 431, 1906
9. Source
10. a historian for the National Park Service
11. pg 293 Read the article here
12. Merriam-Webster defines “monument” as “a building, statue, etc. that honors a person or event” and “a building or place that is important because of when it was built or because of something in history that happened there” ((Merriam-webster
13. Merriam-webster? Does the term “scientific interest” really mean(in application
14. Edgar Lee Hewett was an influential, New Mexico-based archeologist who worked in Las Vegas for some time.
15. Id. pg 294
16. of Wyoming
17. see the War Powers, generally
18. and are not
19. at least when it comes at no political risk to themselves
20. Source
21. I kid, I am sure this was only about state sovereignty
22. 16 U.S.C. 431a, by express I mean written, passed legislation
23. or would depending your perspective
24. see the NPR story cited above
25. Source
26. Source
Young Couple Riding Motor Scooter Along Country Road

The Rights of a Scooter to Drive on the Shoulder

A client recently received a traffic citation for driving his motorized scooter on the shoulder of a city street in Las Vegas, Nevada, after an accident with another vehicle. The citation listed 0610 “restricted access” as the violation. I have seen many scooters drive on the shoulder of a road in the Las Vegas area; thus, I wondered whether the officer was correct in asserting that it is illegal for scooters to drive on the shoulder.1)For purposes of this blog post, “shoulder” means the area of the road to the right of the right-most lane, on the opposite side of the white, solid line.

The short answer is “most likely.” There is ambiguity in the law, but for the reasons stated below, an officer is most likely supported in citing a scooter driver for violating the law if driving to the right of a solid white line on a shoulder. However, if the scooter driver is involved in an accident while driving the scooter that was not his fault, he may not be precluded from recovering damages from the accident.

 

The rights of motorized scooters are not fully defined in the NRS

The Nevada Revised Statutes (NRS) that pertain to traffic laws and are found in NRS 484A-484E, and they do not contain a provision or law that appears to match the violation of “restricted access” cited by the police officer in my client’s case. A statute that refers restricted areas that may be the closest to the relevant situation is found in NRS 484B.510, which is titled “Stopping, standing or parking in restricted parking zone.” The NRS does not specifically define restricted parking zone, but the text of this statute makes such a zone sound like an area that has signs marking it—such as a 10 minute loading zone or similar. This is not the typical roadway shoulder found in the Las Vegas valley.

The violation of crossing a white line on the freeway is governed by NRS 484B.587, but there is no reference to non-freeways. Thus, while an officer may be supported in believing there was a violation for the driving of a scooter on the shoulder of a non-freeway, the “restricted access” violation likely does not match with the alleged improper actions.

 

Applying statutory definitions of moped, vehicle, roadway, and shoulder to better understand the rights of  a motorized scooter

My conclusions that scooters are nonetheless not permitted to drive on the shoulder are almost exclusively based upon the definitions found in the NRS with some corroboration with the Nevada Administrative Code (NAC) and the Nevada Department of Motor Vehicles (DMV). Case law on the topic in Nevada is silent. The main definitions upon which I rely are “moped,” “vehicle,” “roadway,” and “shoulder,” the last of which is only provided in the NAC.

Under Nevada law, a motorized scooter is identified as a “moped,” which is defined under NRS 484A.125:

a motor-driven scooter, motor-driven cycle or similar vehicle that is propelled by a small engine which produces not more than 2 gross brake horsepower, has a displacement of not more than 50 cubic centimeters or produces not more than 1500 watts final output, and

1. Is designed to travel on not more than three wheels in contact with the ground but is not a tractor; and

2. Is capable of a maximum speed of not more than 30 miles per hour on a flat surface with not more than 1 percent grade in any direction when the motor is engaged.

 

NRS 484A.125 specifically states that “moped” does not include an electric bicycle. On the other hand, a moped is a “vehicle” under NRS 484A.320 because it is a transportation device that may be used on a highway and is not moved by human power: NRS 484A.320 defines a “vehicle” as follows:

“Vehicle” means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except:

1. Devices moved by human power or used exclusively upon stationary rails; and

2. Electric personal assistive mobility devices as defined in NRS 482.029.

 

Since a moped is a transportation device not moved by human power nor is it an electric personal assistive mobility device, it is a vehicle under Nevada law. There is some circularity in the definitions here because the definition of highway under NRS 484A.095 states that it designed for vehicles, and the definition of vehicle states it is a device allowed on a highway. However, to say that a moped is not a permitted on a highway would lead to an absurd result of not allowing a moped on the road at all; therefore, my conclusion assumes that mopeds are permitted on the highway and are thus vehicles. This means that any law that applies to vehicles also applies to mopeds unless there is an exception.

It is important to recognize that a highway in Nevada is defined very broadly as follows:

“Highway” means the entire width between the boundary lines of every way dedicated to a public authority when any part of the way is open to the use of the public for purposes of vehicular traffic, whether or not the public authority is maintaining the way.2)NRS 484A.095

 

Many people may think of a highway as a major street or road that is not a freeway, often due to famous highways such as Highway 69 or 101. As shown by the above statute, when dealing with the Nevada laws on traffic, the word “highway” is specifically defined and is simply the entire publicly open surface available for “vehicular traffic.” Under NRS 484A.215, a “road” is basically the same as a highway except that it is “outside the territorial limits of a city.”

On the other hand, a “roadway” is narrower in scope than “highway” because it includes just the improved portion of the surface that excludes the shoulder. NRS 484A.220 defines “roadway” as “that portion of a highway which is improved and ordinarily used for vehicular traffic, exclusive of the shoulder.” (emphasis added). The definition of roadway thus shows that the shoulder is not a part and it is for vehicles, which includes mopeds. It does not state that vehicles are not permitted to travel in the shoulder. The term “shoulder” is not defined in NRS 484A-484E.

It is a false inference to think that because the roadway is for vehicles, the shoulder is not. The fact that the roadway excludes the shoulder just differentiates the roadway from the shoulder, but there is nothing that states that the roadway is the only area for vehicular traffic or that the shoulder is not for vehicular traffic; the roadway is ordinarily used for vehicular traffic as opposed to the traffic of horses, pedestrians, bicyclists, sheep, or other possible roadway users, all of which may be permitted but are not the ordinary users. Just because the roadway’s ordinary use is for vehicular traffic does not mean that the shoulder is not also for a similar use.

The same logic may be applied to NRS 484A.300, which is titled “Traveled portion of highway” and is defined as that portion of a highway improved, designed or ordinarily used for vehicular traffic, exclusive of the berm or shoulder.” Just because the traveled portion of the highway is designed for or used by vehicles does not mean that the shoulder is not. The exclusion of the shoulder as part of the roadway or traveled portion of the highway is a physical characteristic of the respective public thoroughfares, and the use by vehicular traffic is a characteristic of its intended use.

There is no statute that specifically states that vehicles, including mopeds, are not allowed on the shoulder; however, there would be an absurd result if vehicles were permitted to travel on the shoulder. The shoulder is separate because it has a different function; it is also usually marked with a solid white line. If the shoulder were permitted for vehicular travel, then why paint the solid white line at all or even refer to it as a shoulder? Frequently, the shoulder is not large enough to safely drive a vehicle while remaining entirely on pavement and not encroaching on a neighboring lane.

Thus, logically, the shoulder is different from a regular vehicle travel lane, and since it has no specifically stated purpose, it is likely not a lane designated for ordinary vehicular traffic. It is a commonly accepted rule that cars and trucks are not permitted to drive on the shoulder. The law establishes that mopeds are vehicles. If you put the two together, mopeds are not allowed to drive on the shoulder.

 

The Nevada Administrative Code is instructive

The Nevada Administrative Code3)NRS 408.215 [4] grants authority to the Director of the Department of Transportation to “adopt such regulations as may be necessary to carry out and enforce” the intent of the NRS with regards to transportation regulation, while not a direct authority, provides more specific guidance. It defines “roadway” and “traveled way” similar to the NRS but also includes a definition of “shoulder.”4)NAC 408.245, 408.260 NAC 408.250, it states that “Shoulder” means the portion of the roadway contiguous with the traveled way for the accommodation of stopped vehicles, emergency use and the lateral support of the base and surface.

Thus, when read with the NRS definition of vehicle to include mopeds, NAC 408.250 shows that shoulders are not available for moped travel and may only be used for stops and emergencies.

The DMV Driver’s handbook contains a more thorough statement regarding the purpose and function of solid white lines. It states that “a solid white line is also used to mark the edge of the highway as well as the boundary between a travel lane and a highway shoulder.”5)DMV Driver’s handbook, page 30, July, 2014 While the DMV handbook is not an authority, it would be persuasive in its interpretation of the law.6)particularly because the term “boundary” is not defined in the NRS

While it is likely that a traffic citation issued to a driver of a scooter or moped for driving on the right side of a solid white line is likely proper. The law is not clear that mopeds are not allowed to drive on the shoulder, but the law identifies mopeds as vehicles, and vehicles should not drive on shoulders.

Even if a person violates that law by driving on the shoulder on a scooter, other drivers have a duty to drive safely and watch for other users of the highway. Just because the scooter driver was driving on the shoulder at the time of the accident does not mean that they will be found at fault for the accident. In 2005, the Nevada Supreme Court ruled that a violation of a traffic statute by a victim of a vehicle accident will not preclude the victim from recovery.  You can read Langon v. Matamoros here.

The outcome of every case is fact sensitive. Please contact an attorney if you have questions about this or any related matter as this is not legal advice.

Footnotes   [ + ]

1. For purposes of this blog post, “shoulder” means the area of the road to the right of the right-most lane, on the opposite side of the white, solid line.
2. NRS 484A.095
3. NRS 408.215 [4] grants authority to the Director of the Department of Transportation to “adopt such regulations as may be necessary to carry out and enforce” the intent of the NRS with regards to transportation regulation
4. NAC 408.245, 408.260
5. DMV Driver’s handbook, page 30, July, 2014
6. particularly because the term “boundary” is not defined in the NRS
play with fireworks

How to Play with Fireworks in Nevada and Avoid the Slammer

Welcome to Part III of our combustible1)sorry, the puns end here series on fireworks.  In Part I we learned that, contrary to popular sentiment, the fireworks stand are regulated fairly well as Clark County enforces a good amount of code to ensure the public is safe2)a lot of effort especially given that sales go on only seven days a year.

In Part II we untangled the mess that is our Home Rule local law, discovering that our local municipalities regulate fireworks3)with permission of the state legislature and that the fireworks regulations are not uniform across the Las Vegas Valley4)silly Vegas.

To wrap up our series on fireworks, and hopefully not throwing a damp cloth on everyone’s 4 July fun, we will discuss the possible consequences for “when the fun stops.”5)insert the fading sunset, though it is unlikely that over-gaming will get you a serious violent felony charge[key word there is “violent,” we will save that discussion for another time]

For teenagers and parents alike, it is good to know that keeping things a bit too real6)the most unartful Chappelle Show reference ever (a la play with fireworks) can go seriously wrong.

 

How About We Play with Fireworks but Avoid that Serious Felony Charge

In short, be careful and mindful of others7)I can hear you out there yelling “square” at me. You want square? How about spending the holiday weekend in prison? On second thought, just go ahead and do it..  As I am sure you can intuit, purposely using fireworks to harm other people or property is a serious crime.

Considering fireworks are just low-grade explosives, the law makes sense in this regard. The controlling law for this scenario is NRS 202.830:

NRS 202.830  Use of explosives to damage or destroy property prohibited; penalties.

      1.  Unless a greater penalty is provided pursuant to subsection 2, a person who maliciously damages or destroys, attempts to damage or destroy, or conspires with another person to damage or destroy, by means of an explosive, any building, vehicle or real property in the State:

      (a) If no substantial bodily harm results, 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 2 years and a maximum term of not more than 10 years, or by a fine of not less than $2,000 nor more than $10,000, or by both fine and imprisonment.

      (b) If substantial bodily harm results, 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 2 years and a maximum term of not more than 20 years, or by a fine of not less than $2,000 nor more than $20,000, or by both fine and imprisonment.

      2.  A person who maliciously damages or destroys, attempts to damage or destroy, or conspires with another person to damage or destroy, by means of an explosive, any building, vehicle or real property in the State, knowing or having reason to believe that a human being is therein at the time, is guilty of a category A felony8)unlike school, if you get drawn into the world of felony charges, the lower the letter grade, the better off you are. Things are really not going well if you get hit with a category A felony and shall be punished by imprisonment in the state prison:

      (a) For life without the possibility of parole;

      (b) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or

      (c) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served, in the discretion of the jury, or of the court upon a plea of guilty or guilty but mentally ill.

      (Added to NRS by 1971, 1282; A 1973, 1807; 1995, 12102009, 21)

Yikes.  You went out to play with some friends on what seemed to be a normal Saturday night, then bam! 25 years to life.  Remember kids, the line between a bomb and fireworks is only a matter of degree. I want to call your attention to the clause from subsection 2 that states that the accused committed the crime “knowing or having reason to believe that a human being is therein at the time.”

You can be charged with murder even if you did not know for certain there was a person there.  I am not going to propose hypothetical, depraved heart crimes for your 4 July celebration.  All that is necessary is a “reason to believe” that a person would be hurt through the property destruction.

Purposely destroying property is bad, doing so in an area likely to be occupied by innocent bystanders could turn out to be much, much worse.

 

But It Was an Accident, I Swear!

No matter my brother; you are still in serious trouble.  The statute discussed above covers crimes that the perpetrator committed intentionally.  Now we turn to scenarios that, although accidental, will still incur a criminal penalty. NRS 202.595 provides the relevant law:

NRS 202.595  Performance of act or neglect of duty in willful or wanton disregard of safety of persons or property; penalty.  Unless a greater penalty is otherwise provided by statute and except under the circumstances described in NRS 484B.653, a person who performs any act or neglects any duty imposed by law in willful or wanton disregard of the safety of persons or property shall be punished:

      1.  If the act or neglect does not result in the substantial bodily harm or death of a person, for a gross misdemeanor.

      2.  If the act or neglect results in the substantial bodily harm or death of a person, for a category C felony as provided in NRS 193.130.

      (Added to NRS by 1995, 466; A 1995, 1332)

Given that it is illegal to play with fireworks in the street, it is safe to assume that this statute will take effect if you happen to (accidently or not) destroy property or injure another9)not to mention to possible civil liability.  You can go ahead and take the prohibition against playing with fireworks in the street as duty made expressly by municipal codes.

I think it would be difficult to contend that to play with fireworks in a neighborhood surrounded by homes, cars, and children is not a “willful or wanton disregard of the safety of persons or property.”10)willful or wanton can be understood to mean very negligent

It is not like we are not surrounded with acres of empty desert where it is much safer to play with fireworks. I advocate being cautious as you play with fireworks this 4 July not only because you are legally required to, but because morally, it is the right thing to do.  We might be more transient than other communities, but that does not mean we cannot love each other just as much.

Happy 4 July!

God Save the United States of America.

Footnotes   [ + ]

1. sorry, the puns end here
2. a lot of effort especially given that sales go on only seven days a year
3. with permission of the state legislature
4. silly Vegas
5. insert the fading sunset, though it is unlikely that over-gaming will get you a serious violent felony charge[key word there is “violent,” we will save that discussion for another time]
6. the most unartful Chappelle Show reference ever
7. I can hear you out there yelling “square” at me. You want square? How about spending the holiday weekend in prison? On second thought, just go ahead and do it.
8. unlike school, if you get drawn into the world of felony charges, the lower the letter grade, the better off you are. Things are really not going well if you get hit with a category A felony
9. not to mention to possible civil liability
10. willful or wanton can be understood to mean very negligent
fireworks over United States flag

Fireworks Part II: What May I Blow up?

**2016 Update** For your information, according to Section 5609.6.1 of the Clark County Code:

“Fireworks stands shall be operated from June 28 to July 4 of every calendar year.”

 

Welcome to Part II of our discussion of fireworks laws in Southern Nevada, in which we clarify what the law is and leave all that hearsay we have been using in the dust.  In Part I, we reviewed the how localities are granted the authority to regulate, and the ordinances passed by Clark County governing sellers.

Now we get to the meat and potatoes: what kind of fireworks are you permitted to blow up this 4 July, and what will happen if you are caught with illegal ones?

 

Fireworks Laws in Unincorporated Clark County/Henderson

Before we continue, you are going to want to know where you live1)do not despair, this is not about to get too existential.  If your mailing address is in “Henderson,” then the inquiry ends there.  But if you have a mailing address in “Las Vegas,” you could live in either the City of Las Vegas or unincorporated Clark County2)the county made a deal with Las Vegas a while back allowing residents/business of the unincorporated townships [Paradise, Winchester for example] to list Las Vegas as their mailing addresses, even though they are not in the city limits.

Generally, if you live north of Sahara, you are in Las Vegas.  If you are south of Sahara, but not in Henderson, you are probably in unincorporated Clark County3)check your address on Google Maps to know for sure; the city limits are not neatly drawn.

Why does it matter where you live? Because the regulations differ depending on municipality.  Luckily, Henderson and Clark County’s regulations are nearly identical.

They are so similar that we will examine the Clark County Code and you can safely assume the regulations apply to Henderson as well4)See Chapter 8.32.10 of the Henderson Code. Note the difference between the Henderson law and Clark County is that the County (literally) numbers the illicit fireworks, while Henderson uses letters.

Clark County Code section 5609 declares what are illegal, dangerous fireworks:

5609.5 Dangerous fireworks. It shall be unlawful for any person to possess, store, to offer for sale, expose for sale, sell at wholesale or retail, or use or explode any dangerous fireworks in the unincorporated towns of Clark County, Nevada. “Dangerous fireworks” include, but are not limited to, the following:

1.  Fireworks that contain prohibited chemicals per NFPA 11245)NRPA 1124 As you can see, the National Fire Protection Association [NFPA] has withdrawn Section 1124 to be updated; subsection 1 has no effect, in actuality;

2.  Firecrackers, salutes and other articles which explode;

3.  Fireworks that fire an aerial display;

4.  Skyrockets and rockets, including all devices which employ any combustible or explosive material and which rise in the air during discharge;

5.  Roman candles, including all devices which discharge balls of fire into the air;

6.  Sparklers more than ten inches in length or one-fourth inch in diameter;

7.  All fireworks designed and intended by the manufacturer to create the element of surprise upon the user. These items include but are not limited to auto foolers, cigarette loads, exploding balls, trick matches;

8.  Fireworks known as devil-on-the-walk, or any other fireworks which explode through means of friction;

9.  Torpedoes6)oh geez of all kinds which explode on impact;

10.  Fireworks kits;

11.  Devices that travel a distance exceeding a 10 feet radius.

12.  Such other fireworks examined and tested by the chief and determined to possess characteristics of design or construction which make such fireworks unsafe for use by any person not specially qualified or trained in the use of fireworks.

Note that this is not an exhaustive list, although sufficiently terrifying.

The County/Henderson will likely consider any fireworks similar in character to those listed above in the class of “dangerous fireworks,” and through subsection 12, will deem them illegal.

 

Las Vegas Tries to Regulate Fireworks Another Way

Instead of defining what are illegal like her sister municipalities above, Las Vegas took a different approach by declaring what are legal:

9.28.060 – Approved fireworks.

Subject to the limitations imposed by Section 9.28.0907)that states fireworks may not be lit on public sidewalks or streets, the sale, use, manufacture, and possession of the following articles of fireworks is approved within the City except that prohibited items may be used for public display purposes as provided by a special permit, and except possession of prohibited items by jobbers, wholesalers, and manufacturers for shipment to other states. All other items not herein approved are prohibited. The following items are approved:

(A) Cylindrical fountains without report (includes handle, spike and base fountain), total pyrotechnic composition not to exceed seventy-five grams each in weight; the inside tube diameter shall not exceed three-fourths inch;

(B) Cone fountains and whistling fountains without report, total pyrotechnic composition not to exceed fifty grams each in weight;

(C) Wheels, total pyrotechnic composition not to exceed sixty grams in weight, for each driver unit, but there may be any number of drivers on any one wheel; the inside bore of driver tubes shall not be over one-half inch;

(D) Railway fuses without spikes, truck flares, hand ship distress signals and illuminating torches, but excluding those containing magnesium; total pyrotechnic composition of illuminating torches not to exceed one hundred grams each in weight;

(E) Sparklers and dipped sticks, total pyrotechnic composition not to exceed one hundred grams each in weight; pyrotechnic composition containing any chlorate or perchlorate shall not exceed five grams;

(F) Colored box, cone fire and smoke pots8)contain yourself, total pyrotechnic composition not to exceed one hundred grams each in weight (does not include magnesium flares or smoke grenades);

(G) Fireworks pieces that are a combination of the above approved items, and which are mounted on one base; total number of items on one base shall not exceed nine;

(H) Nonpoisonous snake9)I thought we were talking about fireworks? and items of similar composition.

(Ord. 1816 § 1 (part), 1976: Ord. 1814 § 1 (part), 1976: prior code § 6-1-16(4))

 

So what is the difference between the County and Las Vegas? Time to get our logic hats on! Although it is possible, in practice, the regulations are the same10)especially since Metro polices Las Vegas and the unincorporated county, on its face, the Las Vegas law is much tougher.

Any fireworks not on the list above are illegal; whereas, with the county, although I do not know enough about fireworks to provide examples, it is very possible that there are more than eight11)A through H different classes of fireworks that would not meet the criterion of “dangerous.”

Which method of regulation is more efficacious? I cannot say for certain, but my instincts say that declaring what is illegal is the better way to go. Just imagine how long and arduous any regulations would be that had to define all legal activity.

On the other hand, at least it is clear in Las Vegas what fireworks are legal.  Note subsection 12 of the County Code 5609.5 includes a catch-all for the county to declare any additional fireworks illegal if need be.  Unfortunately, there is not enough empirical evidence to determine which municipality method is more effective12)not that we could control for all the necessary variables to make said determination anyway.

Stay tuned to find out how a bad decision this 4 July could land you in some serious hot water.  Until then, there are some helpful tips for how to play safe this 4 July on the Clark County Website.

 

Footnotes   [ + ]

1. do not despair, this is not about to get too existential
2. the county made a deal with Las Vegas a while back allowing residents/business of the unincorporated townships [Paradise, Winchester for example] to list Las Vegas as their mailing addresses, even though they are not in the city limits
3. check your address on Google Maps to know for sure; the city limits are not neatly drawn
4. See Chapter 8.32.10 of the Henderson Code. Note the difference between the Henderson law and Clark County is that the County (literally) numbers the illicit fireworks, while Henderson uses letters
5. NRPA 1124 As you can see, the National Fire Protection Association [NFPA] has withdrawn Section 1124 to be updated; subsection 1 has no effect, in actuality
6. oh geez
7. that states fireworks may not be lit on public sidewalks or streets
8. contain yourself
9. I thought we were talking about fireworks?
10. especially since Metro polices Las Vegas and the unincorporated county
11. A through H
12. not that we could control for all the necessary variables to make said determination anyway
shopping cart sparkler

Regulating Fireworks Sellers

 

Ah, it is that time of year again where half of the Las Vegas Valley 1)approximate estimates based on perceived, albeit inaccurate, volume from previous years blows up as many powerful fireworks as they can while the rest of us hope and pray that there is not any serious damage done to our community2)and/or my poor dog.

Instead of relying on the usual hearsay in understanding what is legal with regard to fireworks sellers, allow me to provide a quick summary of the Nevada law describing what governmental body determines the legality of fireworks sellers where you live, and the important regulations governing fireworks sellers.

 

Who Has the (Fire)power?

The Nevada state legislature writes most of the laws for the communities of the state that are not a part of an incorporated city/town/county. Unsure where you live? Google Maps will help.  Nevada Revised Statute (NRS) 473.090 regulates the use of fireworks in these unincorporated communities:

NRS 473.090  Unlawful burning, blasting or use of fireworks, welding torch or other devices in district; permits; exceptions; penalty.

1.  Except as otherwise provided in this section and NRS 527.126, it is unlawful within the boundaries of any fire protection district organized under this chapter for any person, firm, association, corporation or agency to burn, or cause to be burned, any brush, grass, logs or any other inflammable material, or blast with dynamite, powder or other explosive, or set off fireworks, or operate a welding torch, tarpot3)a pot for carrying tar, for those of us not living in the 19th century or any other device that may cause a fire in forest, grass or brush, either on the land of the person, firm, association, corporation or agency or on the land of another, or on public land, unless such burning or act is done under a written permit from the State Forester Firewarden or the State Forester Firewarden’s duly authorized agent and in strict accordance with the terms of the permit.

5.  The provisions of this section apply only to such portions of the fire protection district as are outside incorporated cities and towns.

6.  Any person, firm, association, corporation or agency violating any of the provisions of this section is guilty of a misdemeanor.

 

Bet you did not see that coming.

As you see “any person” may not “set off fireworks” in unincorporated areas of the state unless there is written permission from the state Firewarden.

Subsection 1 provides an exception as stated in NRS 527.126, which address  the terms that a “controlled fire” may set ablaze 4)The text is as follows, note the requirement for “direct supervision”: NRS 527.126  Requirements to conduct fire; governmental immunity1. The authority may authorize an agency of this state or any political subdivision of this state to commence a controlled fire. 2. A controlled fire must be conducted: (a) Pursuant to a written plan which has been submitted to and authorized by the authority; and (b) Under the direct supervision of at least one person who is qualified to oversee such fires and who remains on-site for the duration of the fire. 3. A controlled fire which is commenced pursuant to this section and which complies with laws relating to air pollution shall be deemed in the best interest of the public and not to constitute a public or private nuisance. 4. The State of Nevada, an agency of this state or any political subdivision or local government of this state, or any officer or employee thereof, is not liable for any damage or injury to property or persons, including death, which is caused by a controlled fire that is authorized pursuant to this section, unless the fire was conducted in a grossly negligent manner.

 

But what about for the majority us who live in municipalities? Chapter 244 of the NRS regulates those fireworks sellers:

NRS 244.367  Fireworks: Regulation and control.

1.  The board of county commissioners shall have power and jurisdiction in their respective counties to pass ordinances prohibiting, restricting, suppressing or otherwise regulating the sale, use, storage and possession of fireworks, and providing penalties for the violation thereof.

2.  An ordinance passed pursuant to subsection 1 must provide that any license or permit that may be required for the sale of fireworks must be issued by the licensing authority for:

(a) The county, if the fireworks are sold within the unincorporated areas of the county; or

(b) A city located within the county, if the fireworks are sold within the jurisdiction of that city.

(Added to NRS by 1957, 231; A 1999, 808)

 

If you recall our previous discussion on the new Nevada gun law, we learned that Nevada is a Dillon’s Rule state whereby the localities only have the authority to legislate when expressly granted permission by the state legislature.

The legislature granted said authority in subsection 1, above. It is fairly intuitive that the need for firework regulation differs from Clark County (which includes the Strip, among other populated areas) relative to the more rural areas of Nevada.

Now that we know which governmental body regulates fireworks sellers, we will look at the Clark County Code to see the pertinent laws.

 

Clark County’s Fireworks Sellers Laws

Before we get to the law, a little more background on local municipality law. Clark County exclusively regulates the areas of the Las Vegas Valley that are unincorporated5)these include the Paradise [the Strip] and Winchester townships [just east of the strip].

Henderson, Las Vegas, and North Las Vegas, as incorporated municipalities, set their own codes in reference to fireworks.

Lucky for us, the municipal laws are fairly uniform6)in practice less than form, as you will see in part II of our discussion so we will examine the Clark County Code (CCC) regulating the sale of consumer fireworks.  Section 5609 of the CCC regulates consumer fireworks.  I excerpted the pertinent parts:

 

5609.1.2 Seizure of fireworks. It shall be unlawful to possess, use, explode, offer, display for sale, hold or store any and all fireworks in violation of this section. Upon finding unlawful fireworks, the fire chief, building official, or police chief or their representative shall seize, take, remove or cause to be removed such unlawful fireworks and destroy said unlawful fireworks at the expense of the owner.

5609.1.3 Penalty for violation. Any person operating or maintaining any occupancy, premises or vehicle subject to this regulation who shall permit any hazard to exist on premises under his control or who shall fail to take immediate action to abate a hazard when ordered or notified to do so by the building official or his duly authorized representative shall be guilty of a misdemeanor, and upon conviction thereof, be punished by a fine of not more than one thousand dollars and/or imprisonment in the county jail for not more than six months, or any combination of such fine and imprisonment. Every day of such violation shall constitute a separate offense.

5609.3.1 Labels. All fireworks for consumer sales shall bear the California State Fire Marshal’s Safe and Sane seal7)Can something be safe and not sane?. Each item or case of small items or item box shall bear the seal.

5609.3.2 Packaging. Retailers shall display and sell consumer fireworks in their original packages only.

5609.6.1 Operations: Fireworks stands shall be operated from June 28 to July 4 of every calendar year.

5609.6.2 Certificate of Insurance: The permittee shall furnish a certificate of insurance for hazard coverage of up to $1,000,000 or greater as specified by the Fire Prevention Bureau.

5609.6.3 Personnel: Fireworks stands shall be operated by at least one adult, 18 years or older, and not be occupied by anyone under the age of 14.

5609.6.5 Fire safety features. Each fireworks stand shall have the following fire safety features;

     1.  A fully-charged mounted fire extinguisher rated at least 2A 10BC. The fire extinguisher shall be tagged by a contractor licensed by the State Fire Marshal.

     2.  “No Smoking” signs with 3-inch tall letters posted on all four sides of the stand as required by 5609.2.3.  (Underlining added)

 

Wow! I do not know about you, but given how shabby some8)not all..specifically yours, the reader’s. I think you have a lovely stand. of the fireworks stands look, I was under the impression that regulations governing these sellers was haphazard at best.  I could not have been more wrong.

The county has done a nice, quite thorough job of protecting her citizens from business that is about as transient as it gets.

So what are the takeaways from the CCC above? Well, if you possess illegal fireworks9)which will be defined in part II, even if purchased legally in Moapa or Nye County, law enforcement will take them away10)if you were to purchase a recreational substance in Colorado/Washington/Alaska and bring it to Nevada, the same principle would apply. There exists the possibility of jail time and/or a fine for possession as well.

Also, fireworks sellers only have a seven-day window to sell beginning 28 June, must have at least one adult working at all times, must have insurance against fire damage, and a fire extinguisher.

Lastly, selling fireworks that are altered (as in not in the original packaging from the manufacturer) is expressly prohibited.

But what kind of fireworks are you permitted to blow up come 4 July?? You will have to stay tuned for Part II of our discussion on fireworks; it promises to be explosive.11)sorry

Read the Clark County fireworks sellers regulations here

 

Footnotes   [ + ]

1. approximate estimates based on perceived, albeit inaccurate, volume from previous years
2. and/or my poor dog
3. a pot for carrying tar, for those of us not living in the 19th century
4. The text is as follows, note the requirement for “direct supervision”: NRS 527.126  Requirements to conduct fire; governmental immunity1. The authority may authorize an agency of this state or any political subdivision of this state to commence a controlled fire. 2. A controlled fire must be conducted: (a) Pursuant to a written plan which has been submitted to and authorized by the authority; and (b) Under the direct supervision of at least one person who is qualified to oversee such fires and who remains on-site for the duration of the fire. 3. A controlled fire which is commenced pursuant to this section and which complies with laws relating to air pollution shall be deemed in the best interest of the public and not to constitute a public or private nuisance. 4. The State of Nevada, an agency of this state or any political subdivision or local government of this state, or any officer or employee thereof, is not liable for any damage or injury to property or persons, including death, which is caused by a controlled fire that is authorized pursuant to this section, unless the fire was conducted in a grossly negligent manner.
5. these include the Paradise [the Strip] and Winchester townships [just east of the strip]
6. in practice less than form, as you will see in part II of our discussion
7. Can something be safe and not sane?
8. not all..specifically yours, the reader’s. I think you have a lovely stand.
9. which will be defined in part II
10. if you were to purchase a recreational substance in Colorado/Washington/Alaska and bring it to Nevada, the same principle would apply
11. sorry
settlement offers, negotiation, confidentiality, lawyers, privacy, nevada

Confidentiality vs. Confidential Settlement Negotiations to Further Your Case

As a general premise, private settlements of lawsuits are encouraged and often regarded as the quickest and most efficient way to either avoid or end a lawsuit. Typically, if settlement negotiations break down, they are considered confidential and cannot later be used during litigation of the matter. This prevents parties from alleging that the other side admitted liability by offering to pay a settlement. If offering to pay a settlement could be used against someone during litigation, then parties would be discouraged from making settlement offers, and the courts would be even more overwhelmed with cases than they are now.

By way of example, if you are involved in a car accident and you offer to pay the other driver a small sum of money to avoid making an insurance claim, that gesture cannot later be used against you as evidence that the accident was your fault. If it could, why would anyone ever try and be the nice guy?

 

When settlement negotiations might be used against you

However, as with all areas of law, there are certain exceptions to this rule. These exceptions apply if you want to use evidence of settlement negotiations to prove or show something other than the liability or fault of the party who made the offer.

For instance, you can use evidence of settlement negotiations to show that a party was aware of a dispute if they try to deny it. A situation like this may arise when a business owner and an injured patron fail to reach a settlement but then the business owner later claims they were not ever made aware of a dangerous condition.

Another proper instance to cite a settlement negotiation in court is for an insurance company negotiating in bad faith. If an insurer makes an offer to settle a claim that the injured party does not accept, evidence of the insurer’s offer pre-litigation may be used as evidence of bad faith if they try to deny the claim post litigation.

Another use in the bad faith context would be an insurance company using pre-litigation settlement offers to prove they did negotiate in good faith with an injured party when they are accused of stonewalling. The Ninth Circuit has noted that sometimes parties try to couch correspondence as a “settlement offer” to keep it confidential even through the true nature of the document was not really a settlement offer, and in this situation, the evidence will be admitted. 1)See Cassino v. Rechhold Chemicals, 817 F.2d 1338 [9th 1987]. In that case, an employer tried to condition payment of a severance package on an employee’s signing a release of all potential claims against that employer. The Court held that evidence surrounding that exchange could validly be presented because a wrongful conditioning of payment was not a good faith “settlement offer.”

Although a true settlement offer is generally kept confidential, there can be instances that evidence of the offer may be exposed. For that reason, circumstances may arise where it is best to make a verbal offer or not document a settlement offer if you think your actions surrounding the offer could be used in some way to your detriment. With that in mind, settlement offers are more often than not a very useful tool in avoiding costly litigation. Each and every scenario is unique, so if you find yourself faced with a legal dispute of any sort, contact our attorneys at Clear Counsel Law Group for a free consultation.

Footnotes   [ + ]

1. See Cassino v. Rechhold Chemicals, 817 F.2d 1338 [9th 1987]
bullying, Nevada law, kids, school

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 20th 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   [ + ]

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
nevada gun law blue card

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   [ + ]

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
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   [ + ]

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
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   [ + ]

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
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