Las Vegas Archives - Page 5 of 6 - Clear Counsel Law Group

Las Vegas

702-522-0696

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, 1210; 2009, 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[+]

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

General Interest / Las Vegas / Nevada Law - 06/30/2015

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[+]

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

Las Vegas / Nevada Law - 06/29/2015

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 19^th 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 immunity. 1. 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[+]

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 19^th century
↑4	The text is as follows, note the requirement for “direct supervision”: NRS 527.126 Requirements to conduct fire; governmental immunity. 1. 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

Las Vegas / Nevada Law - 06/25/2015

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[+]

Footnotes
↑1	See Cassino v. Rechhold Chemicals, 817 F.2d 1338 [9th 1987]

Las Vegas / Nevada Law / Personal Injury - 06/23/2015

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

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

Pedestrian Accidents in Las Vegas

According to the Center for Disease Control and Prevention, the leading cause of death for Nevada residents between the age of 5 and 34, is motor vehicle collisions. Most accidents occur at night when pedestrians are not as visible to oncoming traffic and the speed of traffic is misjudged by those crossing the street.

Where Do Most Accidents Occur?

The most common pedestrian accident occurs when the front of a car comes in contact with a pedestrian. Most people associate a pedestrian with a person walking, but pedestrians make up a much larger group of people. Pedestrians include:

Walkers
Joggers
Skateboarders
In-line skaters
Sidewalks scooters
Wheelchair users
Strollers

Crosswalks are meant to be the safest route for a pedestrian to cross the street, however they can sometimes be just as dangerous as crossing in the middle of the street. Drivers sometimes fail to see that there is a crosswalk approaching; and likewise, pedestrians do not always cross when signaled by the illuminated crossing signs on the opposite end of the street, making the possibility of being struck by an oncoming vehicle more likely.

The Las Vegas Strip can be quite dangerous for pedestrians with the consistently large volume of traffic that is present. And because Las Vegas is a top destination for out-of-town visitors, these pedestrians may not be used to the traffic rhythm on the strip. Most pedestrian accidents occur on weekend nights, between Friday and Sunday. Oftentimes, alcohol and driver negligence play a significant role in pedestrian accidents. And while it is not yet known why, statistics show that males are more often struck by vehicles than women are.

Airports pose another significant risk involving pedestrian accidents. With the constant hustle and bustle of busy travelers, airport parking lots and drop-off zones are an increasingly dangerous area for pedestrian-vehicle collision. In Las Vegas, the McCarron International Airport is expected to have an increase of patrons each year, especially as its new Terminal 3 brings in more visitors.

Traffic Accidents and Children

Because children do not have the same level of judgment and awareness of adults, they are particularly vulnerable to accidents involving moving vehicles. Common places where children are struck, include:

Driveways – especially by high-profile vehicles such as SUVs
Busy parking lots – children sometimes break free from their parents and are struck by maneuvering vehicles
School bus stops
School crosswalks

Common Pedestrian Injuries

Usually, people associate fatal car accidents with two vehicles colliding. However, fatal accidents involving pedestrians are a growing problem, with the National Highway Traffic Safety Administration estimating that every 113 minutes, a pedestrian is killed in a traffic crash. Even more, the World Health Organization estimates that in some countries, 40% of fatal traffic accidents involve pedestrians.

The most common pedestrian injuries include:

Broken arms and legs
Head injuries
Brain injuries
Neck injuries
Spinal cord injuries

Some of these are potentially life-altering and even fatal. Because pedestrians have virtually no protection against vehicle collision, drivers must practice safe driving habits at all times.

Consult a Personal Injury Attorney

If you or a loved one has been involved in a pedestrian accident, contact a personal injury attorney. Depending on the circumstances, the driver may be at fault if serious injury or death has occurred. You may be owed compensation for injury, or if a loved one has been involved in a fatal accident, a wrongful-death claim could be filed.

Las Vegas / Personal Injury - 11/12/2014

What we offer

Contact Info

1671 W Horizon Ridge Pkwy Suite 200,
Henderson, NV 89012

+1 702 522 0696
info@clearcounsel.com

Daily: 9:00 am - 5:00 pm
Saturday & Sunday: By Appointment Only

Nothing on this site is legal advice.