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Nevada Law

Clear Counsel Law Group / Nevada Law
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
gun law, 2nd Amendment, Nevada,

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
guardianship, Nevada, estate planning, probate

The Risks of Guardianship

Various media outlets in Las Vegas have recently reported on extensive problems with the guardianship system in Southern Nevada. In a most dramatic example of the guardianship system being abused, a private, professional guardian has been accused of improperly taking more than $495,000 from a Las Vegas woman who was under guardianship. This dramatic example of abuse is extremely distressing. However, for most Southern Nevadans the risks of guardianship are not quite as dramatic, but are, nevertheless, still real. Here are some of these risks and how you can protect yourself.

 

What is Guardianship? 

A guardianship generally arises when an adult is not able to manage his own finances or personal matters or is not able to make health care decisions for himself1)Guardianships of minor children may also occur, but I will not discuss guardianships for minors in this article. In such circumstances, Nevada law is very broad, allowing “any interested person” to petition the Guardianship Court to be appointed as the guardian of the “ward” 2)meaning, the person who is in need of guardianship, See NRS 159.044. Interestingly, the Nevada guardianship statutes do not provide any further definition of who is an “interested person”. For all practical purposes, the Guardianship Court has allowed essentially anyone who says they are an interested person to be appointed as a guardian, even if the “interested person” is not related to the ward in any way and even if the “interested person” has never met the ward prior to asking for appointment as the guardian. So long as the interested person can establish that the ward needs guardianship, the Guardianship Court will generally appoint that interested person as guardian of the ward.

 

The Risks of Guardianship 

Once a guardian is appointed, the ward is declared legally incompetent and, thus, loses control of his own decisions. In essence, the guardian is authorized to make all decisions for the ward, including decisions on where to obtain health care, where the ward’s money is invested, whether to sell the ward’s house, where the ward will live, and what the ward can do with his free time. In best case scenarios, the guardian will act more as a mentor and counselor to the ward in making these decisions and will follow the ward’s directions on these decisions to the greatest extent possible. In the worst case scenarios, the guardian runs the ward’s life with no regard for the ward’s own choices.

Nevada law allows the guardian to be paid “reasonable compensation” for the guardian’s services 3)NRS 159.183. It is very important to know that the guardian’s compensation is paid from the ward’s own money, not by the State or County. Similarly, the guardian is entitled to hire an attorney and other professionals to provide their professional services to the guardian. Again, the fees and costs of the attorneys and other professionals are paid from the ward’s own money, not by the State or County. It is commonplace to see combined guardian fees and attorney fees to exceed $10,000 for very routine guardianship matters. In difficult or disputed guardianship matters, these fees can total tens of thousands of dollars.

 

Protect Yourself from Guardianship 

The most simple and effective way to protect yourself from guardianship is to sign power of attorney documents for both financial/general matters and also for health care decisions. Power of attorney documents allow you to decide who you would want to help you manage your financial and general matters and to make health care decisions for you if you were not able to do so. Appointing an agent under a power of attorney performs all of the functions that a court-appointed guardian would perform without the expense and loss of independence that occurs in guardianship. Power of attorney forms can be created relatively inexpensively by experienced estate planning attorneys, so do not leave this to chance by using the fill-in-the-blank forms that are often full of mistakes that render them invalid and unusable.

A revocable living trust is also an important tool to avoid the need for guardianship court. When you create a revocable living trust, your assets are transferred into your trust and are held and used according to the terms that you set up when you create your trust. Such assets in a trust should not require any court intervention or oversight in order for the assets to be used for your benefit. In addition, thoughtful estate planning attorneys can include provisions in the trust that protect you from the risks of the guardianship system and prepare the trust in a way that keeps your assets out of guardianship.

Most importantly, though, is advice that is not legal advice, but the best practical advice you can use to avoid the risks of guardianship. Many elderly people retire in Southern Nevada without any family members who live in Southern Nevada. These retirees are particularly vulnerable to being caught in the guardianship system.

It is crucial for these retirees to be involved in their neighborhood and communities and make friendships and connections that will be able to protect them if the need arises. Make your neighbors aware of how they can contact your family if you are at risk for whatever reason. Be involved in your local church, charity, homeowners association, or senior center. Make sure that your primary care physician and any other doctors that you visit on a regular basis have a copy of your healthcare power of attorney or that they at least have the contact information for whomever it is that you trust most to take care of you if you cannot take care of yourself. Guardianship abuses arise most often when true “interested persons” (children, siblings, friends, etc.) cannot be located or have no idea that you are at risk, thus leaving the potential ward to the whims of an “interested person” who has no interest in you other than as another billable unit in their professional guardianship service.

Footnotes

Footnotes
↑1 Guardianships of minor children may also occur, but I will not discuss guardianships for minors in this article
↑2 meaning, the person who is in need of guardianship, See NRS 159.044
↑3 NRS 159.183
Estate Planning / Nevada Law / News - 06/12/2015
sports book investing, sports betting

Sports Book Investing? Is There a Catch?

Sports betting1)Remember kids, only gamble with money you can afford to lose, and by kids I mean folks at least twenty-one years old continues to grow in popularity ever year.  This could be due to a number of factors. With technology now, it is possible to watch a telecast of almost any game imaginable.  Additionally, with the internet becoming faster and more ubiquitous with each passing year, it has become easier and easier to bet on sports.  For example, in a ten year period starting in 1994, the amount bet on the Football Championship2)the name of the event is protected by copyright law  doubled to almost 120 million dollars3) Click here to see the chart.  Nevada, through her legislators, has the foresight to see this as a long term trend, and in turn, passed significant legislation during the 2015 legislative session to put the state in the forefront of this growing industry.

Now I will tell you a bit about Senate Bill (SB) 443 that legalizes sports book investing.

 

Sports Book Investing and the Text of SB 443

Before getting into the specifics of the bill, I think it is worth taking a look at Section 2 of the bill that states the purpose and intent of the new law:

  1. The State of Nevada leads the nation in the regulation and enforcement of race book and sports pool wagers, such that the State is uniquely positioned to expand the means for natural persons to place race book and sports pool wagers in a controlled environment.

  2. Allowing natural persons to pool money in a business entity which can then place race book and sports pool wagers with nonrestricted gaming licensees will increase wagering activity in this State.

  3. A comprehensive registration of business entities that place race book and sports pool wagers will provide greater transparency for nonrestricted gaming licensees, prevent fraud and assist law enforcement agencies in this State.

 

The issue with offshore sports betting4)that is most of the betting people do now on the internet, which is illegal by the way is that you have no assurances that the offshore entity will pay you 5)just because they show a credit in your online account does not mean they will send you a check, and there is no telling who is profiting off of the VIG 6)the amount 10% or so that the book collects on each bet, for example when you bet most any sport on an even line, the odds are -110, meaning you have to bet $11 dollars to make $10.  That extra dollar is the VIG.  The advantage of legalized wagering in Nevada (besides the 100,000+ of jobs the casino industry supports) is that the companies have to file disclosures with the SEC, and the casinos are regulated sufficiently to guarantee that you will be paid on a winning sports (or other) bets.  Betting through a bookie or offshore is completely unregulated and provides no American jobs.  The legislature is admirable for attempting to take some of the illegal sports betting market share and have the money invested in our economy.

 

What the New Sports Book Investing Law Permits

Section 3 of SB 443 allows a “business entity,” once registered with the Gaming Control Board and after payment of the $1,000 registration fee7)with $500 due each of the following years to place wagers on sporting events.  Once registered with the Secretary of State, the business entity will operate in a similar manner to a mutual fund, where folks can invest with a company they believe in, and these companies will make the best wagers they can8)similar to hedge fund investing, except there are no dark pools or flash trading.  The books will still have the option to accept only the bets they want to accept.  I imagine, similar to investment funds, people will evaluate past performance and pick the fund that will make them the most amount of money.9)this may be a faulty assumption

We will have to wait and see if the larger casinos will be risk averse toward these funds, but my hunch is, given the competition for gaming dollars, they will eventually be pushed into raising their wagering caps.

 

Footnotes

Footnotes
↑1 Remember kids, only gamble with money you can afford to lose, and by kids I mean folks at least twenty-one years old
↑2 the name of the event is protected by copyright law
↑3  Click here to see the chart
↑4 that is most of the betting people do now on the internet, which is illegal by the way
↑5 just because they show a credit in your online account does not mean they will send you a check
↑6 the amount 10% or so that the book collects on each bet, for example when you bet most any sport on an even line, the odds are -110, meaning you have to bet $11 dollars to make $10.  That extra dollar is the VIG
↑7 with $500 due each of the following years
↑8 similar to hedge fund investing, except there are no dark pools or flash trading
↑9 this may be a faulty assumption
Nevada Law / News - 06/11/2015
foreclosure mediation, mortgage, nevada, underwater home

Foreclosure Mediation in Nevada

Although the so-called “financial crisis” has passed in most states, Nevada home owners are still struggling1)this is not a conversation to assign blame, though with Dick Fuld coming back out from under his rock, it would not hurt, but today we speak of options for homeowners going forward.  In 2009, a foreclosure mediation program went into effect in Nevada, with encouraging results so far.  Nevada’s foreclosure mediation program accepted more than 4,200 mediations in its inaugural year of 20102)the statistics are reported yearly by the Nevada Foreclosure Mediation Program.  Each year referenced is the fiscal year, meaning for 2010, the data is from July 2009 through June 2010.  In 2011, the program reached its zenith with an astounding 7,424 foreclosure mediations, but even in fiscal year 2014, the program still processed more than 2,100 cases.

In this discussion, I hope to clarify what the foreclosure mediation process is through question and answer.

 

When does foreclosure mediation become an option for an underwater3)this term means the home is worth less than the amount still owed on the home homeowner?

Starting in 2009 with the creation of the foreclosure mediation program by the Nevada legislature, all homeowners in default became eligible for the mediation program.  The law has been updated to now default all homeowners into the foreclosure mediation program once the trustee files a notice of default.

The lender must include a foreclosure mediation enrollment form when sending the homeowner the notice of default.  The homeowner has 30 days to return the enrollment form to the foreclosure mediation program for non-judicial foreclosure, 20 days for judicial foreclosure4)non-judicial foreclosure is done out-of-court, more about the difference in foreclosure processes will be said in later entries.  Along with the form, the homeowner and lender are responsible for paying $200 each for the services of the mediator.

 

What happens next?

Within ten days of receipt of the enrollment forms and fees, the foreclosure mediation program will assign a mediator to the case.  By statute the program has 135 days to complete the mediation.

The mediator will then hold a document conference or call in order to discuss with the homeowner what documents are necessary for the mediation to go forward.  The lender or foreclosure trustee then has five days to mail or email5)if electronic communication is agreed to by the participants the document request to the mediator and homeowner.  In turn, the homeowner has fifteen days to return the requested documents in his or her possession to the lender6)s/he is also required start obtaining the documents s/he does not currently have. The lender/trustee has another fifteen days to review the received documents, and send a supplemental request, if necessary.

 

What is required of the lender?

The lender then must provide the following documentation to the mediator and the homeowner:

  1. The original mortgage note
  2. The original or certified copy of the deed of trust
  3. A copy of the assignment of either the note or deed of trust
  4. Proof that the party representing the lender at the mediation is empowered to modify the provisions of the home loan.
  5. An appraisal or Brokers Price Opinion of the home being foreclosed upon, not older than sixty days from the date of the mediation.

 

What are some other good facts to know?

  • Upon completion of the mediation, each party has the right to have a district court judge in the relevant jurisdiction review the outcome.  The appeal to the court must be filed within thirty days of receipt of the mediator’s summary of the proceedings7)the mediator’s statement must be completed within ten days of the mediation.
  • If the homeowner is in need an interpreter, one must be requested of the foreclosure mediation program within twenty-one days of the scheduled mediation.
  • Foreclosure mediation is unavailable to those opting to file bankruptcy.

 

Stay tuned for a discussion of the difference between judicial/non-judicial mediation, and the available options out there to avoid foreclosure.

Footnotes

Footnotes
↑1 this is not a conversation to assign blame, though with Dick Fuld coming back out from under his rock, it would not hurt, but today we speak of options for homeowners going forward
↑2 the statistics are reported yearly by the Nevada Foreclosure Mediation Program.  Each year referenced is the fiscal year, meaning for 2010, the data is from July 2009 through June 2010
↑3 this term means the home is worth less than the amount still owed on the home
↑4 non-judicial foreclosure is done out-of-court, more about the difference in foreclosure processes will be said in later entries
↑5 if electronic communication is agreed to by the participants
↑6 s/he is also required start obtaining the documents s/he does not currently have
↑7 the mediator’s statement must be completed within ten days of the mediation
Bankruptcy / Nevada Law - 06/10/2015
civil forfeiture, nevada, police, 4th amendment

Civil Forfeiture in Nevada: What You Need to Know

Recently in the news here in Nevada was the acquittal of Steven Ficano; you may be familiar with his story as he is the elderly man arrested for possessing much more marijuana than legally permissible under the medical marijuana laws.  He was charged with possession, and possession with intent to sell; Mr. Ficano was acquitted by a jury from each charge.  However, along with marijuana, the police seized $51,000 in cash and twenty-six guns, which Mr. Ficano’s lawyer claims are antiques.

Given that Mr. Ficano was acquitted, it would be reasonable to assume that the government would return his cash and antique guns, but you may be surprised to know that this may not necessarily happen.1)for another example of what is called civil forfeiture in the news, look at this story of Tan Nguyen from Humboldt County, the sheriff’s deputies really turned public opinion against themselves by posing with the seized cash on facebook The Tan Nguyen case  As it turns out, there is not law in Nevada that determines what should happen to seized property if property owner is acquitted, at least not yet.

 

The civil forfeiture law currently

The Nevada forfeiture laws are located in chapter 179 of the Nevada Revised Statutes (NRS).   First, here is the law permitting law enforcement officials to seize property:

 

    NRS 179.1165  Seizure of property: Requirement of process.

      1.  Except as provided in subsection 2, property that is subject to forfeiture may only be seized by a law enforcement agency upon process issued by a magistrate having jurisdiction over the property.

      2.  A seizure of property may be made by a law enforcement agency without process if:

      (a) The seizure is incident to:

             (1) An arrest;

             (2) A search pursuant to a search warrant; or

             (3) An inspection pursuant to a warrant for an administrative inspection;

      (b) The property is the subject of a final judgment in a proceeding for forfeiture;

      (c) The law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

      (d) The law enforcement agency has probable cause to believe that the property is subject to forfeiture.

      (Added to NRS by 1985, 1466; A 1987, 1382)

 

As you can see, all that is necessary is “probable cause” that the property will be “subject to forfeiture” or that the property is “directly or indirectly dangerous to health or safety.”  As in the case of Tan Nguyen, sufficient probable cause can be an officer claiming the smell of marijuana in the car 2)irrespective if there actually is any marijuana or marijuana smell in the car.

  

Is the civil forfeiture law about to be updated?

Senate Bill (SB) 138, currently working its way through the legislative process3)It has been unanimously approved by the assembly and the senate, it is currently awaiting a signature from Governor Sandoval.  In SB 138, the legislature requires police departments to report all forfeitures to the attorney general once a year, so we will now have an accounting of how much property is being seized each year.  Additionally, SB 138 addresses what should happen to seized property upon an acquittal.  Here is the current law:

      NRS 179.1173  Proceedings for forfeiture: Priority over other civil matters; motion to stay; standard of proof; conviction of claimant not required; confidentiality of informants; return of property to claimant.

      1.  The district court shall proceed as soon as practicable to a trial and determination of the matter. A proceeding for forfeiture is entitled to priority over other civil actions which are not otherwise entitled to priority.

      2.  At a proceeding for forfeiture, the plaintiff or claimant may file a motion for an order staying the proceeding and the court shall grant that motion if a criminal action which is the basis of the proceeding is pending trial. The court shall, upon a motion made by the plaintiff, lift the stay upon a satisfactory showing that the claimant is a fugitive.

      3.  The plaintiff in a proceeding for forfeiture must establish proof by clear and convincing evidence that the property is subject to forfeiture.

 

Below is the update to NRS 179.1173 that has been approve the by the Nevada state assembly and senate.  The strikethrough portions are the sections of the old law, deleted by the new one.  The underlined portions are the additions to the statute.

      NRS 179.1173

1.  [The] Except as otherwise provided in subsection 2, the district court shall proceed as soon as practicable to a trial and determination of the matter. A proceeding for forfeiture is entitled to priority over other civil actions which are not otherwise entitled to priority.

2.  At a proceeding for forfeiture, the [plaintiff or claimant may file a motion for] court shall issue an order staying the proceeding [and the court shall grant that motion if a] that remains in effect while the criminal action which is the basis of the proceeding is pending trial. The court shall [, upon a motion made by the plaintiff,] lift the stay [upon a satisfactory showing that the claimant is a fugitive.] after the trial is completed. If the claimant is acquitted during the trial, the property of the claimant must be returned to the claimant within 7 business days after the acquittal.

3.  If property has been seized and the criminal charges against the owner of such property are denied or dismissed, all such property must be returned to the owner within 7 business days after the criminal charges are denied or dismissed.

4.  The plaintiff in a proceeding for forfeiture must establish proof by clear and convincing evidence that the property is subject to forfeiture.

 

Note in subsection 2 that law enforcement will be required to return seized property after an acquittal within seven business days.  The same is true, as stated in subsection 3, for seized property when the criminal charges are dismissed.  Providing this guidance in the statute benefits the public and police departments.  As of 29 May, the bill has been delivered to the governor.  We will have to wait and see if he signs it into law.

For more information about civil forfeiture as a national problem, see New Yorker "Taken"

Footnotes

Footnotes
↑1 for another example of what is called civil forfeiture in the news, look at this story of Tan Nguyen from Humboldt County, the sheriff’s deputies really turned public opinion against themselves by posing with the seized cash on facebook The Tan Nguyen case
↑2 irrespective if there actually is any marijuana or marijuana smell in the car
↑3 It has been unanimously approved by the assembly and the senate, it is currently awaiting a signature from Governor Sandoval
Constitutional Law / Nevada Law / News - 06/09/2015
motorcycle accident, personal injury, motorcycle accidents

Motorcycle Accident Liability

 

Have you, or do you know someone who has been in a motorcycle accident? If so, you likely desire a bit more information about how liability is assigned under Nevada law.

In a motorcycle accident, liability is determined by a negligence standard.  Both car and motorcycle drivers have a duty to drive with due care.  The Nevada legislature has codified the specific duties for motorcyclists; they are as follows:

    NRS 486.331  Rights and duties of drivers.  

A person driving a motorcycle or moped upon a highway is entitled to all the rights and subject to all the duties applicable to the drivers of motor vehicles as provided by law, except those provisions which by their nature can have no application.   (Added to NRS by 1971, 1470; A 1975, 1084)

 

      NRS 486.341  Right to full use of traffic lane.  

Every motorcycle or moped when being driven on the highway is entitled to full use of the traffic lane it is occupying, and a person shall not drive another motor vehicle in a manner which would deprive any such motorcycle or moped of such use.   (Added to NRS by 1971, 1470; A 1975, 1084)

 

      NRS 486.351  Unlawful passing; driving abreast.

      1.  A person, except a police officer in the performance of his or her duty, shall not drive a motorcycle or moped between moving or stationary vehicles occupying adjacent traffic lanes.

      2.  Except as provided in subsection 3, a person shall not drive a motorcycle, moped or trimobile abreast of or overtake or pass another vehicle within the same traffic lane.

      3.  Motorcycles and mopeds may, with the consent of the drivers, be operated no more than two abreast in a single traffic lane.  (Added to NRS by 1971, 1470; A 1975, 1084; 1979, 857)

 

Why do these statutes matter? Because in determining liability in a motorcycle accident (hypothetically between the motorcyclist and an automobile driver), a judge or jury will evaluate if each party exercised the required due care.

 

How the NRS applies to a motorcycle accident

This is even true if automobile caused the accident in our hypothetical example.  Nevada uses what is called a modified comparative negligence standard.  Under this standard, even if the accident is caused by the automobile driver, the liability will be discounted by the percentage fault of the motorcyclist.  For example, a jury determines the automobile driver to be at fault, but the motorcyclist was driving faster than consider safe, they may assign 75% of the liability to the automobile driver and 25% to the motorcyclist.  The damages award will be then discounted accordingly.

Unlike your run-of-the-mill negligence cases where due care is determined based on how a “reasonable person” would act, much of the due care required by motorcyclists is explicit in the law as shown above.  Under the first two statutes listed, motorcycle drivers are said to have the same rights to the road as those driving cars, meaning that motorcycle drivers do not need to yield to drivers under all circumstances, but motorcyclists and automobile drivers are to treat one another as equals on the road.

NRS 486.351 elaborates on the specific duties, and exceptions, for motorcycle drivers.  Lane splitting (driving in between two cars on the white demarcation), is expressly prohibited by subsection one.  Subsection two prohibits motorcyclists from passing a car within the same lane.  Subsection three allows motorcyclists to share a lane as they drive, but only two motorcycles may share any one lane.

These laws are important to keep in mind because, as a motorcyclist, if you are in violation, it may be very difficult to recover for an accident injury.  This, unfortunately, may even be the case if automobile driver caused the accident.

Nevada Law / Personal Injury - 06/08/2015
service animal, ada, service dogs, veterans, pug, cute

A Service Animal and Public Places

In a previous episode (Part I), we discussed what exactly a service animal is, and the difference between an emotional support animal and a psychiatric service animal.  Today I hope to provide even more clarity into service animal law, particularly with respect to service dogs.

Last week1)true story I was at a restaurant in Henderson with a nice couple that brought along their cute, small pug.  After placing an order at the counter, the couple2)neither of the people had a visible disability, not to imply that all disabilities are visible sat down at a table with the little dog in tow.  A restaurant employee came over saying “Is that a service animal?” After an affirmative response, the employee said, “I need to see the papers for your dog.” Each of the customers got a guilty look on their faces, then claimed to have forgotten the papers at home.  The employee than asked them to sit outside, or leave altogether.

It is possible3)assuming the young couple was lying that everyone involved broke the law.  Do not let this happen to you! Let us now go over how public businesses are required to treat service animals4)and their owners, and the law regulating this type of fraudulent behavior in Nevada.

 

Do I really have to let this creature in my store?

Oh you better believe it.  The Americans with Disability Act (ADA) supersedes local and state law, meaning you, as a business owner, have to abide by the ADA. The ADA applies to businesses, local government entities, and non-profits5)this is not an exclusive list that serve the public. I will describe the most important elements of the law to help clear up a lot of the confusion out there.

 

What am I allowed to ask?

This is the most import part of this discussion! Please, please be careful.  The Justice Department permits two questions to be asked of a person that arrives at your place of business with a service animal:

  1. Is the dog a service animal required because of a disability?
  2. What task has the dog been trained to perform?

That is it! No other questions are permitted.  Questions like “do you have a disability?” or “do you have proof that your dog is a service animal?” are both inconsiderate and illegal6)Ask FIFA, it is not worth messing around with the Justice Department.

 

Other good facts to know

Not all service animals have papers evidencing their training.  Not all service animals wear the special vests commonly seen on television.  In turn, you cannot eyeball a dog coming into your store and know for sure if the animal is one of service.

Additionally, there seem to be a few internet enterprises out there offering to send official-looking certificates/dog vests7)A quick internet search will confirm this for a service animal.  These have no legal relevance, and do not make a dog any more or less a service animal.

There are a few legally permissible reasons for disallowing a service animal:

  1. If dog is behaving in a way that threatens other customers8)barking, growling and so on
  2. If the area in question is one that needs to be kept sterile, like a kitchen or operating room9)the seating area of a restaurant does not count
  3. If the dog fundamentally alters the nature of a business. The Justice Department cites a dog barking during a movie as an example.

 

What about people pretending their pet is a service animal?

Nevada has a statute governing this scenario:

 NRS 426.805  Fraudulent misrepresentation of animal as service animal or service animal in training unlawful; penalty.

      1.  It is unlawful for a person to fraudulently misrepresent an animal as a service animal or service animal in training.

      2.  A person convicted of fraudulently misrepresenting an animal as a service animal or service animal in training is guilty of a misdemeanor and shall be punished by a fine of not more than $500.

      (Added to NRS by 2005, 626)

 

Pretending your dog is a service animal is a misdemeanor.  In addition10)although not legally relevant, pretending your dog is a service animal really upsets folks that need service animals.  Look at the comments of this article written by a woman confessing that she lies to merchants about her dog being a service animal. Service dog confession

I know as much as I want to take my dog everywhere with me, I have no desire to hurt peoples' feelings to that extent.

Footnotes

Footnotes
↑1 true story
↑2 neither of the people had a visible disability, not to imply that all disabilities are visible
↑3 assuming the young couple was lying
↑4 and their owners
↑5 this is not an exclusive list
↑6 Ask FIFA, it is not worth messing around with the Justice Department
↑7 A quick internet search will confirm this
↑8 barking, growling and so on
↑9 the seating area of a restaurant does not count
↑10 although not legally relevant
General Interest / Nevada Law - 06/04/2015
community property, ademption, estate planning, probate

Community Property and Ademption: What You Need to Know

Let me tell you a story of unintended consequences in a recent case that I handled. Jim and Mary (husband and wife) each had children from prior marriages. Jim and Mary had agreed that if Mary died before Jim, the house that Mary and Jim lived in would be divided one-third for Jim, one-third for Mary’s son Michael, and one-third for Mary’s son John. In accordance with their agreement, Mary signed a will in 2001 that included the following gift of their house:

“I give, devise and bequeath my real property located at 1234 Anywhere St., Henderson, Nevada, as follows:

(a) one-third to my husband Jim;

(b) one-third to my son Michael; and

(c) one-third to my son John.”

Mary’s will then provided that all of the “rest, residue, and remainder” of Mary’s estate shall be given to her husband.

 

In 2003, Jim and Mary sold the house on Anywhere Street and purchased a new house located at 5678 Elsewhere Ln., Henderson, Nevada. Jim and Mary agreed that the Elsewhere Lane house should be titled in Mary’s name only as her “sole and separate property”. Mary later died in 2013 having never changed her 2001 will. What happens to the Elsewhere Lane house now that Mary has died? Though totally unintended by Mary, Mary’s sons, Michael and John, face two major problems.

First, Nevada law provides that all property “acquired after marriage by either husband or wife, or both, is community property” unless husband and wife otherwise agree in a written agreement between them or unless a court order says otherwise.1)NRS 123.220 Community property means that both spouses have a “present, existing and equal interest” in the property, even if the property is titled in the name of only one of the spouses. 2)NRS 123.225 Thus, when Jim and Mary purchased the Elsewhere Lane house in 2003, because they were married when it was purchased, Nevada law treats the Elsewhere Lane house as community property even though they agreed to put the deed in Mary’s name as her “sole and separate property”.

 

The first community property problem

Now that Mary has died, the first unintended consequence arises. Even though the Elsewhere Lane house was in Mary’s name only at the time of her death, Nevada law provides that one-half of the Elsewhere Lane house is automatically Jim’s property by virtue of community property. The remaining one-half interest in the house is “subject to the testamentary disposition of the decedent.” 3)NRS 123.250[1] This means that Mary’s will (i.e., her “testamentary disposition”) controls what happens to only the remaining one-half interest4)As a side note, if Mary did not have a will, the remaining one-half interest would have also gone to her husband Jim, thus causing the entire house to be Jim’s property upon Mary’s death.

In other words, Mary’s will does not control what happens with the entire house, just one-half of it.

Thus, even though it appears that Mary intended for her sons, Michael and John, to each get one-third of her house, the most they can get is one-third of the remaining one-half of the house, or, in other words, only one-sixth5)1/2 of 1/3 for those scoring at home of the total house. Meanwhile, Jim gets the first one-half due to community property and at least one-third of the remaining one-half, or, in other words, a total of four-sixths6)1/2 + 1/3 of the house.

 

The second community property problem

Second, it is quite likely that Mary’s sons will receive NO interest in the Elsewhere Lane house, even though Jim and Mary agreed that Mary’s sons should each get one-third, and even though Mary put in her will that they should each get one-third. The problem arises because Mary specifically described which property she was gifting in her will. Mary said, “I give my real property located at 1234 Anywhere St., Henderson, Nevada.”  At the time of Mary’s death, Mary did not own the Anywhere Street house.

A principle of law called ademption provides that if a testator (a person who creates a will) gives a gift in the will of a specifically described property, and if the testator does not own that property at the time of her death, the gift is adeemed and the gift fails. In Mary’s case, because she described the gift as a gift of the Anywhere Street house specifically, the law provides that this gift is adeemed and has no effect at Mary’s death, as if she had never written it into her will. Consider, on the other hand, if Mary had said in her will, “I give my real property to my husband, my son Michael, and my son John in equal one-third shares.” In this situation, because Mary gave “my real property” in general, rather than a specific property, the law determines that whatever real property Mary owned at her death would be subject to the gift.

Thus, the second, and more important, unintended consequence of Mary’s will is that it is very likely that the court will determine that the gift of the Anywhere Street house is adeemed7)It is important to note that there are some narrow exceptions to the doctrine of ademption that could save the gift of Mary’s house to her sons. I will revisit those exceptions in a later blog entry. Mary’s interest in the Elsewhere Lane house would be transferred in accordance with the “rest, residue, and remainder” of her estate, which according to her will goes to Jim. Even though Jim and Mary agreed that Mary’s sons should each receive one-third of her house, and even though Mary signed a will where she surely thought that she was giving one-third of her house to each of her sons, the end result is that her husband Jim will receive the entire house because of the community property and ademption doctrines, while her sons receive nothing.

When creating a will, it is extremely important that you carefully consider the language that you use to avoid unintended consequences. An experienced estate planning attorney should advise you about the effect of the community property, and the effect of specifying gifts of property so that all of the consequences are understood and accounted for within the will.

 

Footnotes

Footnotes
↑1 NRS 123.220
↑2 NRS 123.225
↑3 NRS 123.250[1]
↑4 As a side note, if Mary did not have a will, the remaining one-half interest would have also gone to her husband Jim, thus causing the entire house to be Jim’s property upon Mary’s death
↑5 1/2 of 1/3 for those scoring at home
↑6 1/2 + 1/3
↑7 It is important to note that there are some narrow exceptions to the doctrine of ademption that could save the gift of Mary’s house to her sons. I will revisit those exceptions in a later blog entry
Estate Planning / Nevada Law - 06/04/2015
cost bond, nevada, civil procedure

The Mixed-Resident Exception to Nevada’s Cost Bond Rule

In Nevada, as in many other states, foreign plaintiffs are required, upon demand of the defendant, to provide a cost bond of up to $500.  Generally, this is done simply by depositing funds with the court clerk.  This money acts as security for the defendant in case the defendant receives an award for costs.  The theory is that collecting from a foreign plaintiff is more difficult, so foreign plaintiffs 1)meaning plaintiffs that are not residents of Nevada must pay the cost bond.  According to NRS 18.130, if a defendant demands the cost bond and the plaintiff fails to provide it within 30 days of the demand, the plaintiff’s case can be dismissed.  Here is the language of NRS 18.130(1):

 

When a plaintiff in an action resides out of the State, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant, by the filing and service on plaintiff of a written demand therefor within the time limited for answering the complaint. When so  required,  all  proceedings  in  the  action  shall  be  stayed  until  an  undertaking,  executed by two or more persons, be filed with the clerk,  to the effect that they  will  pay  such  costs  and  charges  as  may  be  awarded  against  the  plaintiff  by  judgment, or in the progress of the action, not exceeding the sum of $500; or in  lieu of such undertaking, the plaintiff may deposit $500, l awful money, with the  clerk of the court, subject to the same conditions as required for the undertaking.

 

How Supreme Court interprets the meaning of the cost bond statute

There is, however, an old doctrine that states that the requirement for a cost bond against foreign plaintiffs does not apply if the lawsuit also has resident plaintiff.  In 1951, the Nevada Supreme Court adopted that doctrine in light of the NRS 18.130. While interpreting the requirements of NRS 18.130(1), the Nevada Supreme Court in Fourchier has expressly held that “[W]here there are several plaintiffs in the action, one of whom is a resident, the rule requiring security for costs from nonresidents does not apply.”  2)Fourchier v. McNeil Const. Co., 68 Nev. 109, 116, 227 P.2d 429, 432 (1951).  The Court even acknowledged the cost bond is not required even when the resident plaintiff is insolvent. 3)Id. When coming to this conclusion, the court examined the language of NRS  18.130(1) and recognized that the mixed-residency rule was not in its language, but the Court held that the mixed-resident rule applied nevertheless.4)Id (stating “we accept the general rule of law as thus enunciated).

The Supreme Court in Fourchier pointed out an important exception to the general mixed-resident rule. In Fourchier, 40 different plaintiffs with 40 wholly different contractual claims joined in a single suit for convenience purposes only. They filed a 160 page complaint with 240 causes of action.5)Id. at 113  Each plaintiff could have filed a separate suit, but chose not to. 6)(Id.) at 114.  Based on that situation, the Court held that when non-resident plaintiffs, for their own convenience, and having wholly separate causes of action, voluntarily join a resident plaintiff in a lawsuit, a court may require the non-resident plaintiffs to file an individual cost bond pursuant to NRS 18.130.7)Id. at 119 (citing and quoting Kearney v. Baptist, 159 A. 405, 406, 10 N.J. Misc. 431. 1932.

The purpose of the mixed-resident exception to NRS 18.130 is to prevent non-resident plaintiffs from having to pay a cost bond when a resident plaintiff is present.  The purpose of the exception to the mixed-resident rule is to prevent non-resident plaintiffs from abusing the system, as the plaintiffs in Fourchier did.

In the end, while Fourchier is old law, it seems to still be good law.  Thus, the non-resident bond requirement of NRS 18.130 does not seem to apply if there is a resident plaintiff.  The exception to the mixed-resident exception may apply if the non-resident plaintiffs have significant, or perhaps completely, unique claims.  That being said, the Supreme Court has not spoken on this matter in almost 65 years.  It is probably a good idea to ask the court for declaratory relief before ignoring a demand for a cost bond in a mixed-resident lawsuit.

Footnotes

Footnotes
↑1 meaning plaintiffs that are not residents of Nevada
↑2 Fourchier v. McNeil Const. Co., 68 Nev. 109, 116, 227 P.2d 429, 432 (1951
↑3 Id.
↑4 Id (stating “we accept the general rule of law as thus enunciated).
↑5 Id. at 113
↑6 (Id.) at 114.
↑7 Id. at 119 (citing and quoting Kearney v. Baptist, 159 A. 405, 406, 10 N.J. Misc. 431. 1932.
Nevada Law - 06/02/2015
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