The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:55 a.m., on Thursday, April 22, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

COMMITTEE MEMBERS ABSENT:

Senator Jon C. Porter, Vice Chairman (Excused)

GUEST LEGISLATORS PRESENT:

Assemblywoman Ellen Marie Koivisto, Clark County Assembly District No. 14

STAFF MEMBERS PRESENT:

Jo Greenslate, Committee Secretary

OTHERS PRESENT:

Ben Graham, Lobbyist, Nevada District Attorneys’ Association

Ed Flagg, Lobbyist, Nevada Corrections Association

Chairman James mentioned that it was "Take your Daughters to Work Day," and introduced his daughter, Annie. He opened the hearing on Assembly Bill (A.B.) 406.

Assemblyman Lynn C. Hettrick, Carson City and Douglas counties Assembly District No. 39, testified this bill was requested by the Justice of the Peace in Douglas County to allow him to do what district courts do, which is to reinstate part of the suspended sentence if a convict is not complying with the suspended sentence. He advised that substantial changes were made in the Assembly Committee on Judiciary and requested that the parties who wish to revise the bill be allowed to work out the revised language and bring the bill back to a work session. Chairman James agreed to that request.

David S. Gibson, Lobbyist, Clark County Public Defender’s Office, noted he was not acting in that capacity, but was contacted by both municipal and justice court judges regarding A.B. 406. He stated he would work with Ben Graham, Lobbyist, Nevada District Attorneys’ Association, to draft acceptable language for the bill. Mr. Graham remarked he has heard sentiment ranging from acceptance of the current language to dissatisfaction with it. He said A.B. 406 was primarily set up to address issues in the alternative sentencing program for misdemeanors under chapter 211 of Nevada Revised Statutes (NRS). Mr. Graham asserted they would work carefully to see that NRS chapter 211 interests are addressed and that it will not unduly affect any of the jurisdictions that do not have the alternative sentencing program.

Chairman James stated he would add A.B. 406 to a future agenda and closed the hearing. He opened the hearing on A.B. 304.

Gary H. Wolff, Lobbyist, Business Agent, Nevada Highway Patrol Association, and Peace Officers Research Association of Nevada (PORAN), advised that PORAN represents over 21 police agency labor groups in the state. He introduced Andy Anderson and Ed Flagg. Mr. Wolff testified A.B. 304 was brought forth because of a history of great injustices done to police officers across the state over the years. He stated he has been on the receiving end of such injustice. Mr. Wolff remarked the bill includes simple language that states, " . . . A person who knowingly files a false or fraudulent written complaint or allegation of misconduct against a peace officer for conduct in the course and scope of his employment is guilty of a misdemeanor." He continued the bill continues to require law enforcement agencies to adopt written policies as to how these complaints will be handled and gives the citizens of Nevada the right to review that procedure. Mr. Wolff commented his organization is in favor of the right to review by citizens, because it protects police officers as well as citizens when a complaint is filed. He said the Assembly Committee on Judiciary had a problem with the wordiness of the bill and was of the opinion the bill has a chilling effect that may prevent people from filing legitimate complaints.

A final point made by Mr. Wolff was that every time a police officer stops an individual and writes a traffic citation, at the bottom of the citation the police officer swears under penalty of perjury that what he or she is saying is the truth. In Mr. Wolff’s opinion, truth is the key. He gave an example of a woman who was arrested for driving under the influence. After she got out of jail she crossed the state line, physically beat herself up, turned herself into authorities and accused the officer who had arrested her of administering the beating. Mr. Wolff asserted the officer was pulled off duty for 2 months and subjected to criminal and internal affairs investigations. The conclusion was that the woman had done it to herself. He said there was no recourse whatsoever in Nevada for the police officer. Mr. Wolff stated police officers under statute cannot sue citizens for filing fraudulent complaints, they cannot be prosecuted, and the perjury laws in effect are too vague. Additionally, Mr. Wolff claimed these false complaints cost taxpayers hundreds of thousands of dollars. He urged support of A.B. 304.

Andy Anderson, Lobbyist, Nevada Conference of Police & Sheriffs, and officer of the Las Vegas Metropolitan Police Department, stated this bill concerns police officers and sheriffs because it gives them some recourse. He remarked civil suits are difficult, and most people that file false complaints are coming right out of a jail situation with nothing to lose. Mr. Anderson asserted many times a person will go from his jail cell to internal affairs and file a complaint against the arresting officer in the belief it will help his case. He commented the process initiated by filing the complaint, although the officer knows it is a false complaint, creates concern for the officer. Mr. Anderson maintained when officers are under investigation, whether innocent or guilty, it puts a great deal of pressure on them and has an adverse affect on their job. He disagreed with the earlier statement that A.B. 304 would create a chilling affect toward registering valid complaints. Mr. Anderson urged the committee’s support for passage of A.B. 304.

Ed Flagg, Lobbyist, Nevada Corrections Association, remarked he has the same stance, but is in a different category. He advised corrections personnel have complaints filed against them every day; some are taken seriously, some are not. Mr. Flagg told of being under investigation for 6 months for attempted murder of an inmate. He said nothing happened to the inmate, but he was out of work for 2 months on administrative leave, and was found innocent. When he returned to work, Mr. Flagg reported his reputation was ruined. He offered his association’s support of the bill.

Senator Wiener pointed out there is nothing in A.B. 304 regarding notification to the potential complainant of the penalty for filing a false complaint. Mr. Wolff stated that was in the original bill and was considered to have a "chilling effect." He continued the original bill contained a paragraph listing the complainant’s rights, and stated it is against the law to file a false complaint. Mr. Wolff advised he has talked to applicable agencies, and they have agreed to add the language that was removed from the bill and put it at the bottom of the complaint form. Senator Wiener asked if the "trigger" to investigate the complaint would be if the officer’s alleged behavior was considered criminal versus merely rude. Mr. Wolff answered it is a double-edged sword for police officers. He gave an example of an officer a few years ago who was cleared by the criminal courts but was still terminated under the purview of internal affairs.

Senator Care remarked the use of the word complaint could also include a lawsuit. He clarified that Mr. Wolff was strictly referring to complaints filed with the agency itself. Senator Care inquired if it is possible for somebody to file a fraudulent complaint without knowingly doing so. He gave an example of an officer arresting an individual and impounding his vehicle. Later, when the individual is released he asks what happened to his television set, having forgotten he had given it to his wife a month earlier. Mr. Wolff replied that happens, but that is not what this bill is about. Chairman James pointed out the individual would not be knowingly filing a false complaint. He stated there has to be intent to deceive or knowledge the complaint is false. Senator Care asked about the person he mentioned in his example where the officer could come back and say he should have known his complaint was false. Chairman James mentioned knowing or should have known are a duty of inquiry.

Mr. Gibson advised he was not necessarily testifying against the bill, but rather raising a few questions. In the process of administration of government agencies, in Mr. Gibson’s opinion, it is important that agencies be aware of criticism. Further, when people do criticize and make written reports, there are varying views. There are also other problems, according to Mr. Gibson. He commented if he makes a complaint against a police officer, it would probably go to internal affairs, which is relatively private within the department. However, if it were a crime, all of the records of that particular officer would become available to Mr. Gibson as a defense attorney when he subpoenas the officer to defend his client. In his opinion, that type of information becoming public would have a chilling effect on getting information of criticism to the police department. Mr. Gibson maintained there are many side issues a bill such as A.B. 304 might create. He also mentioned a benefit of receiving complaints at the police department is when looking at the different ways in which people view things, it may help the department form its policy on how to train officers to handle certain situations.

Chairman James pointed out it is already against the law to file a knowingly false complaint against a police officer. Mr. Gibson remarked it is unlawful to file a false police report against anybody. Chairman James surmised this bill is just restating what is already the case, and putting it into statute so that it becomes a specific misdemeanor. In Chairman James’ opinion, this bill would not discourage people from filing complaints, but it would discourage them from filing false complaints. Mr. Gibson disagreed, stating this gets more into the "gossip" area. Legally, if a police officer has more sway with the district attorney’s office or whoever would file the misdemeanor charge against the reporter than the citizen would have, the citizen would be at a disadvantage. Mr. Gibson maintained a citizen might choose not to file a complaint to avoid harassment by the police if the officer has the authority to file a misdemeanor charge against the citizen.

Gemma Greene, Lobbyist, Deputy District Attorney, Washoe County District Attorney’s Office, and Nevada District Attorneys’ Association, remarked her association is neutral on this bill and, therefore, did not sign in to speak about it. However, after hearing some of the comments made, she wished to add her comments. Ms. Greene advised there is no crime in filing a false police complaint. However, it is a crime to file a false police report alleging that a crime has taken place that, in fact, did not take place. Ms. Greene pointed out when somebody files a complaint at the police station, they are filing an internal investigation form. She said he or she is not swearing under penalty of perjury, but filing a complaint against a police officer. Regarding Mr. Gibson’s concerns that people might make a complaint and find that it is false in the future, Ms. Greene asserted the committee needs to keep in mind when making this a crime, the district attorney will not file on this crime unless there is an investigation and some type of backup. She maintained the district attorney would have to prove it beyond a reasonable doubt. Further, Ms. Greene stated what would probably happen is that they would not even get to the alleged false-complaint crime until after completion of the internal affairs investigation. Chairman James clarified Ms. Greene was saying that filing a false complaint would not result in prosecution unless it was a fairly clear case of a false report filed intentionally. Ms. Greene affirmed that was correct.

Senator Titus inquired if a person were to file a complaint, it went through internal investigation, and they found there were insufficient grounds to punish the police officer, if that would constitute a false claim. Ms. Greene replied it would all depend on the facts. In Ms. Greene’s understanding, an internal investigation has a different focus than a criminal investigation. She referred to Mr. Wolff’s earlier example of a police officer receiving criminal charges because he was accused of stealing a person’s television set from the evidence locker. Ms. Greene advised sometimes the officer is found not guilty criminally and is still terminated under internal affairs. She said if an internal affairs investigation turns up nothing and the district attorney’s office is of the opinion it can prove the crime beyond a reasonable doubt, they will use the internal affairs investigation at least as the threshold to start a criminal investigation.

There being no further testimony, Chairman James closed the hearing on A.B. 304. He then opened the hearing on A.B. 485.

Assemblywoman Ellen Marie Koivisto, Clark County Assembly District No. 14, testified that A.B. 485 is a fairly simple bill. She remarked the new language in the bill was a consensus arrived at by the bail bond representatives, district attorneys, public defenders, and police representatives. Mrs. Koivisto stated the bill requires bail agents and bail-enforcement agents to notify immediately, or without undue delay, local law enforcement agencies after apprehending a defendant in the State of Nevada. The bill requires the notification to be in person or by telephone, of the local law enforcement agency in the jurisdiction in which the defendant was apprehended. It must include the identity of the defendant, the bail agent or bail-enforcement agent, and where the defendant is being taken to surrender him or her into custody. The bill also requires bail agents and bail-enforcement agents to notify local law enforcement before forcibly entering an inhabited dwelling. Ms. Koivisto continued the measure provides that a bail agent or bail-enforcement agent who violates these provisions is guilty of a misdemeanor. She said the bill is the result of a call from a constituent who was the victim of a bail-enforcement agent breaking into her home looking for somebody who was not there.

Senator Care mentioned a case that occurred shortly after the Sixty-ninth Legislative Session in which two people were murdered in Arizona when a couple of renegade bounty hunters broke into their house thinking they were two other people. He inquired what the law is in Nevada regarding forcible entry by someone other than a police officer. He also asked what recourse is available to Mrs. Koivisto’s constituent. Mrs. Koivisto answered Senator Care’s last question first by stating her constituent had no recourse. Regarding his other question, Mrs. Koivisto deferred to Mr. Graham and Ms. Greene.

Mr. Graham addressed Senator Care’s question by remarking it is wide open as to what a bail person can do in Nevada. He said there is old case law, and what Mrs. Koivisto is attempting is to give some notice that bail people are sometimes conducting their business inappropriately and to provide for accountability down the line. As far as recourse, Mr. Graham was of the opinion a civil remedy would have been available in light of the illegal break-in, but as far as a judicial or criminal remedy, there are none at this point in time.

Senator Wiener inquired what the distinction is between a bail agent and a bail-enforcement agent. Mrs. Koivisto answered that a bail agent is the owner of the company, and the bail-enforcement agent is the person who goes into the field to chase down the perpetrator. Senator Wiener referred to the definition of "inhabited dwelling" in section 1, subsection 4 of the bill, and queried whether an automobile could fit that definition. Ms. Greene remarked she is the one that came up with that definition by looking into the "Home Invasions" statute and using the one used in that statute. Chairman James pointed out "vehicle" is included in the definition. Senator Wiener asked the meaning of "conveyance" in the definition. Chairman James suggested it refers to a railroad car.

Annie Rees, Lobbyist, President, Nevada Bail Agents Association, and Owner, Annie’s Bail Bonds, stated she wished to clarify the incident that happened in Phoenix referred to by Senator Care was not, in fact, bounty hunters. It was reported early that bounty hunters had broken into the house to bring out somebody who had skipped bail. However, according to Ms. Rees, it was discovered during the investigation that one of the individuals that broke into the house had worked in the past as a bail recovery agent for a bail agent in Phoenix. She said the individuals had gone into the home looking for money from a drug deal, and had used the idea that they were looking for a bail skip as a ruse for breaking into the home. Ms. Rees reported they were later convicted of first-degree murder. Senator Care stated he may have had the facts wrong, but explained the reason he brought it up was to address the question of whether the same type of situation could occur in Nevada. Ms. Rees clarified that the legislation passed during the Sixty-ninth Legislative Session does not stop the type of conduct that happened in Arizona. She further explained the bail agent is the person who actually writes the bond; he or she is a licensed surety insurance agent. A bail-enforcement agent’s job is to recover people and bring them back or to go question them if a problem arises. Ms. Rees asserted the bail agent can also recover someone, and traditionally it has been the bail agent that has done that or a person he or she has hired to recover persons. Ms. Rees commented that up until last session, that person was someone of "suitable age and discretion." She said that is why the bail-enforcement legislation was passed. Continuing, Ms. Rees mentioned the bail-enforcement agents must complete an 80-hour training course. The training is similar to that given by the P.O.S.T. (Peace Officers’ Standards and Training) academy for police officers. Ms. Rees emphasized she heartily supports A.B. 485, because there are agents who are going into inhabited dwellings. She noted the general rule is if a person lists an address as a residence on the application, an agent may enter, but there is a fine line, and agents are only supposed to go in if they know it is the person’s residence. Ms. Rees remarked most agents already make it a practice to call a police officer in advance if they think there may be a problem, and the agents are taught to do that in class. She also pointed out this bill would mandate the location of where the apprehended person is being taken be given to the local law enforcement agency so the person’s family members may locate him or her.

Senator Wiener pointed out the bill does not state the inhabited dwelling must be the residence of the person being pursued. Ms. Rees responded by saying that would not change. She explained the purpose of the bill is to better define that if an agent is going to forcibly enter an inhabited dwelling, the police need to be notified in advance, and to give a better accountability of the agents’ conduct.

Ms. Greene made the observation this bill was designed to protect the bail-enforcement agent so that people know he is there legitimately, especially the people in the house, particularly if it is not the defendant’s house. Additionally, the police department will also know that a home invasion is not happening, and it adds legitimacy to the entire process.

James F. Nadeau, Lobbyist, Captain, Washoe County Sheriff’s Office, and Nevada Sheriffs & Chiefs Association, stated both of the groups he represents support A.B. 485.

There being no further testimony on the bill, Chairman James closed the hearing on A.B. 485. He next opened the hearing on A.B. 647.

Mr. Graham distributed his handout titled, "Re: A.B. 647, Stolen and Embezzled Property" (Exhibit C), which includes proposed changes to the bill. He said he has been working with the pawnbroker industry for the past 1 1/2 years. Mr. Graham indicated that in 1997 a measure was passed that dealt with stolen or embezzled property located in a pawnshop, and it created a search warrant requirement before the property could be recovered or utilized for prosecutorial purposes. He explained the purposes of the amendment to those provisions are to provide for a method where law enforcement can place a hold in writing upon stolen or embezzled property. If, at a later time, it were needed for presentation in court, a writ of authorization from the district attorney’s office describing the property would provide for release of the property by the pawnbroker. Mr. Graham advised that included in both the hold and the authorization for release would be an acknowledgement of the pawnbroker’s interest. Additionally, he stated the 30-day time frame would be removed from section 4 of A.B. 647 because it would no longer be relevant if the first proposed amendment were adopted. Finally, the effective date of July 1, 1999 is proposed so that the parties will have enough time to prepare for the October 1, 1999 deadline.

Alfredo Alonso, Lobbyist, Superpawn, testified the current process regarding stolen property in pawnshops has been onerous to the police department. He remarked the goal is to develop a process that is both simple to administer and effective for both parties. Mr. Alonso stated he is in agreement with the proposed amendments. The issue with respect to the ownership interest, according to Mr. Alonso, is important because there are times when a piece of property has been taken out of the pawnshop, and it turns out that it was not stolen or it was misidentified. He emphasized the pawnbroker industry would like to see the written authorization become a standard form statewide. Senator Care disclosed that his law firm represents Superpawn.

Mr. Graham indicated he has discussed the form mentioned by Mr. Alonso with city attorneys and district attorneys, and he will establish a uniform procedure that will work effectively throughout the state.

Captain Nadeau added the support of the Washoe County Sheriff’s Office and Nevada Sheriffs & Chiefs Association to A.B. 647.

Stan R. Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department (Metro), remarked Metro also supports A.B. 647, and in fact, was involved in rewriting the bill.

*****

Chairman James called for a motion to do pass A.B. 485.

*****

There being no further business to come before the committee, Chairman James adjourned the meeting at 10:05 a.m.

RESPECTFULLY SUBMITTED:

Jo Greenslate,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

DATE: