Flag of South Carolina

The Confederate Flag Has Little to do with Free Speech

Pardon my pontificating by wading into a politically charged subject, but the issue has really gotten under my skin and I cannot hold it in any longer. And, yes, I am going to take a side in this debate and you may not like it. I am talking, of course, about the hubbub about the Confederate battle flag (or whatever you prefer to call it). Here is my take on the issue: free speech has nothing to do with it.1)What? You thought I was going to pick a side on what to actually do about the flag? The author does have an opinion on that question, but reserves the right to blog about that question at another time. Feel free to hit me up for lunch if you want to know my opinion privately.

As is well-known, in the wake of the shooting in Charleston, SC, numerous companies and state and local governments have removed the Confederate flag and merchandise bearing images of the Confederate flag from their shelves and buildings. Wal-Mart, Amazon, Sears, and eBay (among others) have all announced that they will no longer sell any merchandise that bears the Confederate flag.2)CNN has the story NASCAR has asked its fans to not fly or display the Confederate flag at NASCAR events.3)The LA Times has the story The South Carolina legislature quite publicly determined to remove the Confederate flag from its state capitol building.4)Reuters has the story

Among other responses from defenders of the flag, the response that drives me crazy and makes me want to write a blog post about it is this: “But, what about my free speech rights? How can Wal-Mart take away my right to wear the flag? That’s unconstitutional!” AAAGH!! No, this is not about your free speech rights. I am not going to tell you5)in this blog post whether you are right or wrong to love the flag and want to fly it or wear it loud and proud, but I am going to tell you6)with peace and love that your free speech rights are not affected.

 

The Constitution and the confederate flag

The First Amendment to the Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press ….” Simply stated, the United States Supreme Court has consistently (and always) upheld the principle that governments (city, state, national) and their various departments may not codify or enforce laws that tell you what you may or may not say. Most importantly, in order for a restriction on speech to be unconstitutional, the restriction must have been imposed by the government, not by a private citizen or business7)Univision also did not violate the First Amendment by breaking up with Donald Trump.

Now let us look at the examples noted above. When Wal-Mart, Amazon, Sears, and eBay made a business decision that they will not sell merchandise bearing images of the flag, this was NOT an unconstitutional restriction on anyone’s free speech rights because their decision was not compelled by a governmental action. In other words, no governmental entity forced these private companies to make this decision. However, if the government passed a law that told these companies that they are prohibited from selling merchandise with images of the flag, that WOULD be an unconstitutional restriction of free speech. To my knowledge, no governmental entity anywhere has yet passed a law telling private companies that they cannot sell such merchandise. These companies have simply made a business decision that they will not engage in certain speech. You, of course, still have every right to own, fly, and/or wear any item you want that shows images of the Confederate flag and no governmental entity has yet told you that you are legally prohibited from doing so. However, you do not have a constitutional right to require WalMart or eBay to sell it to you.

Whatever you feel about the “political correctness” of business decisions by private companies, please, for the love of the Constitution, do not ever say, “But what about my rights of free speech?”

Footnotes   [ + ]

1. What? You thought I was going to pick a side on what to actually do about the flag? The author does have an opinion on that question, but reserves the right to blog about that question at another time. Feel free to hit me up for lunch if you want to know my opinion privately.
2. CNN has the story
3. The LA Times has the story
4. Reuters has the story
5. in this blog post
6. with peace and love
7. Univision also did not violate the First Amendment by breaking up with Donald Trump
Attractive Hispanic Woman Leaning on a One Hundred Dollar Bill.

What Woman Should be on the New $10 Bill?

“Every great dream begins with a dreamer. Always remember, you have within you the strength, the patience, and the passion to reach for the stars to change the world.”-Harriet Tubman

Here at Clear Counsel, we have a staff that includes a group of women that are as hard-working as they are intelligent.  Recently in the office there was a discussion pertaining to which woman should be put on the $10 dollar bill1)Why not the $100 by the way?.  More than a few of the answers were pretty great; we thought we would share three of our favorites2)note that if living women were being considered by the Treasury, we would have included a passionate argument for America’s greatest novelist, Toni Morrison

 

Woman 1: Jeannette Rankin

Of all these amazing women, Rep. Jeannette Rankin is probably going to be my number one pick.  Not only was she the first woman to serve in the U.S. House of Representatives during a time when permitting women in the world of Congress (or any sort of power for that matter) was still tenuous, but she took the challenge in stride. This position was not given to her on a silver platter, and she did not quit in the face of adversity. In fact, she succeeded with very little help (from her brother). I think that most U.S. Citizens could learn a thing or two just by simply hearing her story. What better teaching tool than putting her smack in the middle of a $10 bill?

 

Woman 2: Sarah Winnemucca

She utilized her agency in taking advantage of the fantasies of the patriarchal establishment and ideals of what Native American women were to sell photographs of herself as a Native American princess at as many outlets as possible.  Back in the day, for someone with no business upbringing, nor a thorough understanding of American commerce to come up with such an idea was astounding.  Not only did she make money, she made money for a purpose.  Native American children used to be taken from their families and brought to white boarding schools to be assimilated and to rid them of their culture and traditions.  Sarah used the money she made to petition the federal government for Native American policy reform and even built a school in Nevada just for the children so they would be educated while staying close to their families and keeping their traditions.  Did I mention that her whole tribe except for one was killed by settlers? And, as stated by Wikipedia:

The chief’s two wives (including Sarah’s mother) and infant son were killed. Although Sarah’s sister Mary escaped from camp, she died later that winter due to the severe conditions. Her younger sister Elma was out of the area, as she had been adopted by a French family in Marysville, California.

This means her whole family was killed as well, except for her sister who was adopted by a settler family.  This woman made huge changes for Native Americans even when her own people were no longer around to support her.  Strength, resilience, and and tenacity… truly a hero.

 

Woman 3: Harriet Tubman

Harriet Tubman risked her life as a “conductor” in the Underground Railroad to help free enslaved folks even after she reached freedom. Less known, she was a spy for the Union during the Civil War, providing key information from her scouts about the Confederate positions.   She was the first women in American history to lead a military expedition with several hundred men to free slaves, saving 750 men, women, children and babies.  Tubman helped the Union army because she wanted freedom for people forced into slavery at the risk of being hanged herself. American abolitionist, humanitarian, and during the American Civil War, a Union spy. Need I say more? This women rocks.

Footnotes   [ + ]

1. Why not the $100 by the way?
2. note that if living women were being considered by the Treasury, we would have included a passionate argument for America’s greatest novelist, Toni Morrison
nevada national monument

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

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

 

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

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

Image

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

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

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

[End note]

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

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

Let’s get to it.

The Text and History of the Antiquities Act

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

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

 

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

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

 

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

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

 

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

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

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

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

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

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

Some politicians are unhappy with the new Nevada national monument

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

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

 

Read more about the Basin and Ridge national monument here

Footnotes   [ + ]

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

Senator Heller’s Legislation Fights Government Drones

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

Apparently not.

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

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

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

A little more from the AP report:

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

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

 

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

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

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

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

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

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

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

SEC. 5. BAN ON IDENTIFYING INDIVIDUALS.

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

SEC. 6. PROHIBITION ON USE OF EVIDENCE.

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

 

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

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

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

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

(iii) to prevent imminent destruction of evidence; or

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

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

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

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

Assisting Border control

Fighting forest fires

Researching nature and wildlife

Surveying public lands

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

Read Senator Heller’s bill here

Footnotes   [ + ]

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

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

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

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

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

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

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

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

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

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

 

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

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

 

Clark County’s Blue Card Law

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

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

12.04.110 Registration of pistols within seventy-two hours.

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

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

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

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

 

Section 8 of the Nevada Gun Law Regarding the Blue Card

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

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

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

The Legislature hereby declares that:

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

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

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

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

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

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

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

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

 

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

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

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

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

You Localities Best Do What We Say…

Now back to SB 175:

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

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

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

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

 

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

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

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

 

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

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

(d) “Person” includes, without limitation:

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

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

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

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

Footnotes   [ + ]

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

Nevada’s New Gun Law, Part III

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

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

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

 

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

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

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

 

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

 

Section 7 of the gun law

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

 

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

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

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

 

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

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

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

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

 

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

Footnotes   [ + ]

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

Nevada’s New Gun Law, Part II

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

 

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

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

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

 

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

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

 

Section 3 of the gun law

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

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

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

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

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

(c) Is a fugitive from justice; or

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

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

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

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

 

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

 

Section 5 of the gun law

Section 5 addresses folks subject to a temporary restraining order:

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

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

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

 

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

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

Footnotes   [ + ]

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

Wiretap in Nevada

A three-judge panel of the Nevada Supreme Court1)This is a criminal appeal, and because Nevada has not established the Appellate Court yet, appeals are heard by three of the sitting Supreme Court Justices recently upheld a conviction of a methamphetamine dealer that appealed the legality of the plea bargain he agreed to stating that the state had no right under Nevada law to wiretap his communication done on cellular devises2)text messages/cell phone calls in this case.  Although the court comes to the expected conclusion, is it necessarily the most desired outcome?

 

What the wiretap statutes say

The statutes under discussion were codified in 1973.  The pertinent parts state as follows:

  NRS179.455  “Wire communication” defined.  

“Wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications. (Added to NRS by 1973, 1743)

NRS 179.460  Cases in which interception of wire or oral communications may be authorized.

      1.  The Attorney General or the district attorney of any county may apply to a Supreme Court justice or to a district judge in the county where the interception is to take place for an order authorizing the interception of wire or oral communications, and the judge may, in accordance with NRS 179.470 to 179.515, inclusive, grant an order authorizing the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when the interception may provide evidence of the commission of murder, kidnapping, robbery, extortion, bribery, escape of an offender in the custody of the the Department of Corrections, destruction of public property by explosives, a sexual offense against a child, sex trafficking, a violation of NRS 200.463, 200.464 or 200.465, trafficking in persons in violation of NRS 200.467 or 200.468 or the commission of any offense which is made a felony by the provisions of chapter 453 or 454 of NRS.

 

As you can read, these statutes seem pretty dated language-wise.  A lot of folks now have entire homes of electronic devises run completely without wires.  At least in my eye, the language used in the statutes is very broad, and that makes me uneasy.

 

What the Supreme Court opinion says regarding wiretaps

On appeal, Sharpe argues that Nevada’s failure to update its wiretap law to reflect federal wiretap law means that Nevada wiretap law does not give the proper statutory authorization for officers to intercept cellular telephone calls and text messages. Amicus Nevada Attorneys for Criminal Justice asserts that Nevada’s failure to update must be construed as the Legislature choosing to achieve a result different from federal wiretap law, i.e., no authorization for the interception of cellular telephone calls or text messages.3)pgs. 6-7

 

Here the court references the fact that the federal law has been updated differentiate between electronic and wire communication, while the Nevada law has not been updated since 1973.

 

We conclude that NRS 179.455’s definition of “wire communication” includes cellular telephone calls and text messages by its plain terms. The broad scope of “any communication” is obvious. We conclude that “any” indicates that both cellular telephone calls and text messages fall within the definition of “wire communication.”4)p. 8

Accordingly, we conclude that cellular telephone calls and text messages are “wire communication[s]” under NRS 179.455’s plain terms, because cellular telephone calls and text messages qualify as “any communication” and are “made in whole or in part. . . by the aid of wire, cable or other like connection between the point of origin and the point of reception.”5)p. 9

In essence, even though the phone in question is not used in conjunction with a wire, because the signal of the phone eventually reaches a tower or database that is connected by wires, then cell phones use is within the purview of the statute.  Given the practicalities, it is doubtful any other conclusion could have been reached.

 

Relevant Questions about privacy and a wiretap

If we were going to project how the court would adjudicate this issue beforehand, it is doubtful that the judges would choose to invalidate the actions of law enforcement, which would let this methamphetamine dealer out of jail on a technicality6)there does not seem to be any question as to if he committed the crime, but just the means that law enforcement used to catch him.  If the court were to overturn this conviction, the convictions of other felons convicted with evidence supplied by wiretaps on wireless communication would certainly come into question; that is not an outcome any reasonable person would want.  Accordingly, we are left with a false dilemma pitting the mass release of felons against the very broad construction of legislation written in 1973 that makes “wired” communication mean any communication.  I find this unfair and unfortunate.

I have to7)with a Ringo Starr-esq amount of “peace and love” question the means and the result here.  The court argues that a “plain reading” of the law would “obvious[ly]” include wireless phone calls and text messages.  How could a plain reading of a statute from 1973 include technology that was not invented yet?8)I do not mean to hammer on this point, but J. Gibbons makes a point on how “obvious” a plain reading of the law includes electronic communication.  If he were to say that the law is ambiguous, but rely on the intent of the legislators, I would take much less issue. There are good arguments to be made for a Constitution to be a “living, breathing document”9)recall the “penumbra” of rights alluded to in Roe v. Wade where the court found a right to privacy found in the shadow of a number of the Bill of Rights amendments. A Constitution is different than a statute.  For one, a statute is much easier to amend.  In addition, a Constitution establishes principles of its underwriters (subject to interpretation), a statute is supposed to clearly state what is and is not permissible, but we are speaking of statuary interpretation here. I understand the desire not to throw the whole criminal justice system into flux because of law in need of updating, but tolerating this type of ambiguity in the law may not be something we all will be comfortable with.

I think it is only fair to assume from this decision that any electronic communication is subject to NRS 179.460.  Does this include email? What about posts on social media? What about tablets and laptops? This is not the old days 10)ten years ago? where folks only made phone calls and sent/received text message from a cell phone.  Today many folks carry mobile devises that contain almost all of their personal information.  According the court, I have no reason to presume this information is not subject to the statute as well.  When the law was written in 1973, all one could do with a phone is speak and hear through it.  How could the legislators that wrote the original law have even guessed that electronic communication devises would eventually contain most of our lives’ private information?

I do not want this to come off as a scathing critique of J. Gibbons11)who authored the opinion, but I take issue more with legislative branch.  It is not fair to put the Supreme Court in a position where the Justices have to choose between invalidating countless criminal convictions, and propping up a dated surveillance law.  For too long now, legislatures (state and federal) have permitted the court system to settle difficult political questions that the elected representatives does not want any part of 12)see marriage, gay.  This is not how a constitutional republic is supposed to function.  The courts should only be evaluating the constitutional validity of laws; not picking up the figurative political slack left by the legislators.

If the Assembly and Senate desire that law enforcement be permitted to wiretap any and all communications made on electronic devises, so be it.  But the concept needs to be debated, amended, and codified by the people’s branch.  By remaining silent on such an important issue, the legislature is failing the people it is elected to represent.

Yet, it begs the question, if we the people directly elect the legislators, who is failing whom, really?

 

You can read J. Gibbons’ opinion here: Sharpe v. State

Footnotes   [ + ]

1. This is a criminal appeal, and because Nevada has not established the Appellate Court yet, appeals are heard by three of the sitting Supreme Court Justices
2. text messages/cell phone calls in this case
3. pgs. 6-7
4. p. 8
5. p. 9
6. there does not seem to be any question as to if he committed the crime, but just the means that law enforcement used to catch him
7. with a Ringo Starr-esq amount of “peace and love”
8. I do not mean to hammer on this point, but J. Gibbons makes a point on how “obvious” a plain reading of the law includes electronic communication.  If he were to say that the law is ambiguous, but rely on the intent of the legislators, I would take much less issue
9. recall the “penumbra” of rights alluded to in Roe v. Wade where the court found a right to privacy found in the shadow of a number of the Bill of Rights amendments. A Constitution is different than a statute.  For one, a statute is much easier to amend.  In addition, a Constitution establishes principles of its underwriters (subject to interpretation), a statute is supposed to clearly state what is and is not permissible
10. ten years ago?
11. who authored the opinion
12. see marriage, gay
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   [ + ]

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
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   [ + ]

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
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