ASSEMBLY COMMITTEE ON JUDICIARY

Assembly Bill 305: Prohibits video voyeurism and distribution of product of video voyeurism. (BDR 15-118)

Chairman Anderson opened the hearing on A.B. 305 by calling forth its primary sponsor, Assemblywoman Barbara Cegavske, who represented Assembly District 5. He referred the committee to the handout, which compared surveillance laws of other states (Exhibit C).

Assemblywoman Cegavske introduced the bill, which would make it a crime to videotape a person without his or her consent, as well as the distribution of such videos. She submitted for the record three articles depicting video voyeurism (Exhibits D, E, F). She stated that Nevadans didn’t have criminal redress for video voyeurism. She listed several states that had video voyeurism laws, from which A.B. 305 was derived. She opined the bill would withstand constitutional tests. Representatives from the press, hotel casinos, security gaming, and the Attorney General’s Office assisted in drafting the language so as not to impede on first amendment freedoms, while providing the necessary legislation to stop criminal video voyeurism.

Mrs. Cegavske stated that Section 1, subsection 1 of the bill listed elements that would constitute video voyeurism:

q For the purpose of sexually arousing or gratifying himself or others;

q Knowingly photographed, videotaped, filmed, or digitally recorded without the consent of the other person; and

q Where the person had the reasonable expectation of privacy, included without limitation, a restroom, locker room, dressing room, or residence.

Subsection 2 prohibited the distribution of products that were made in violation of subsection 1. Subsection 3 made the crime of video voyeurism a Category E Felony, which would include one to four years in prison with a suspended sentence, and the provision of probation in lieu of prison time with a fine of $5,000. Subsection 4 made crimes under subsection 2 a Category D Felony, which included one to four years in prison. In addition, the court could impose a fine of not more than $5,000. She stated that Lieutenant Stan Olsen, Government Liaison, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department, would provide testimony as a part of her presentation.

Lieutenant Olsen provided examples of video voyeurism violations throughout Las Vegas. One incident involved a stagehand that placed a box with a small camera in the showgirls’ dressing room to photograph them while they were nude and changing for their shows. It continued for many weeks before it was discovered, but there was no law to prosecute the stagehand, so the police could not take any action. Another example was a man who placed a video camera in his bathroom with the purpose of taping his guests when they were using the bathroom. There was no crime committed so he could not be prosecuted. He indicated that the Las Vegas Metropolitan Police Department was in total support of A.B. 305, and encouraged the committee to do pass.

Captain Jim Nadeau, Detective Division, Legislative Liaison, Washoe County Sheriff’s Office, Nevada Sheriff’s and Chief’s Association, testified in support of A.B. 305. He specifically cited one incident that occurred in Washoe County. A camera was placed behind the mirror in a public restroom. It had a light sensor, so whenever the light came on, the camera would start recording until the light turned off. They couldn’t do anything about it because it was not in violation of any law in Nevada. He provided more examples of situations where they could not prosecute persons because there was no law to prevent video voyeurism.

Mr. Manendo explained his concern that cameras would not be allowed to be placed in a private residence. He cited an example of a couple that placed video cameras throughout their house to record their babysitter, who they suspected was abusing their child. When the couple got a divorce, one partner used the placement of video cameras against the other as a reason for separation. Mr. Manendo expressed his concern that A.B. 305 could be used against the innocent person who was videotaping within their own home for the purpose of protecting their children.

Mrs. Cegavske responded that the language was crafted to include “for the purpose of sexual arousal and gratification, or sale of video tape.” She stressed the intent of the bill was not to affect situations as he described, unless they were going to sell the tape. Mr. Manendo reiterated his concern that the bill may reach too far if it included instances where the cameras were located in the person’s private residence.

Lieutenant Olsen referred the committee to his earlier example of when the man placed the camera in his bathroom. He opined the person would not be able to reason that the cameras were placed there for security purposes, that placement of the cameras in the bathroom would show the intent for sexual arousal or gratification.

Mr. Nolan inquired if persons that committed video voyeurism tended to commit other crimes as well. Captain Nadeau could not authoritatively answer the question. However, they discovered the intent of the tapes that were recorded in the public restroom, which he mentioned earlier, were to be broadcast on the Internet.

Mr. Collins inquired how they would build a case to prosecute for security surveillance cameras in locker rooms and private residences. Mr. Ben Graham, Legislative Representative, Nevada District Attorney’s Association, responded that the law that would be created by A.B. 305 would not be easily enforced. The language was narrowly crafted to meet constitutional standards, and would not encompass the scenarios provided by Mr. Manendo and Mr. Collins. Cases would be circumstantial the majority of the time, since sexual arousal and gratification would have to be proved.

Mr. Carpenter commented it would be extremely difficult to prosecute under A.B. 305, and was concerned that it might be too narrow. He opined it should be a stronger bill that would give law enforcement a little more leeway to prosecute video voyeurism. Mr. Graham mentioned there might be an opportunity to establish “a reasonable expectation of privacy” in the bill. People in private residences would have somewhat of a higher level of expectation of privacy than when they were in the public. Video voyeurism would be fact specific cases under A.B. 305. Circumstances that would arise would make strong cases. The law would be very useful in prosecuting cases of video voyeurism mainly in the private sector.

Vice Chairman Manendo assumed the Chair of the committee and called upon Ms. Lucille Lusk, Nevada Concerned Citizens, and Mr. Kent Lauer, Nevada Press Association, who declined to testify at that time. He then called upon Ms. Juanita Clark, who represented the Charleston Neighborhood Preservation and Porn Only In Zone (POIZ). She stated for the bill to be strong, the phrase “for the purpose of sexually arousing or gratifying himself or other persons,” would need to be deleted. If the line remained in the bill, persons could still digitally record, photograph, videotape, et cetera, secretly and without the consent of persons subject to such recordings. She explained the progressive four-step process of addiction of consumers of porn (Exhibit G):

q Addiction;

q Escalation;

q Desensitization;

q Actualization (acting out what is seen).

She then read from a letter, included in Exhibit G, from the Charleston Neighborhood Preservation Corporation. It reiterated the concern to delete the phrase between the commas on lines 3 and 4 of page 1 of A.B. 305. It referred the committee to the fact sheet also included in Exhibit G. The letter stressed the term “sexually aroused or gratified” should not be used as the determination of whether a person could photograph persons in locations such as restrooms. Also included was a concern of protection against indecent digital manipulations of photographs and recordings that were originally taken decently. She commended Assemblywoman Cegavske for having brought the bill forward, and thanked the committee.

Vice Chairman Manendo thanked the witness and called for any testimony in support of or against A.B. 305. There being no further testimony, he closed the hearing on A.B. 305.

Assembly Bill 306: Revises provisions concerning interception and disclosure of wire, radio or oral communications. (BDR 15-1303)

Vice Chairman Manendo opened the hearing on A.B. 306, and called upon Assemblywoman Christina Giunchigliani, of Assembly District 9, to introduce her bill. She explained it was a redraft of A.B. 496 of the Seventieth Session, which regarded wiretaps, to address previous concerns from the last legislative session. The intent of A.B. 306 was to edit A.B. 496 of the Seventieth Session, in response to the case of Lane vs. Allstate (Exhibit H). The Supreme Court had found that our statutes were conflicting, and there were problems with the state requiring two parties to consent to recording, but only one party needed to consent when one party was a police officer who sought special permission from the courts. They decided the statutes were not clear and resulted in several problems with interpretation. A portion of A.B. 306 was presented to the office of Associate Justice Robert E. Rose. His office responded that from their interpretation, it did close the loopholes, which caused the problems in the case of Lane vs. Allstate. They did not review other aspects of the bill.

While drafting A.B. 306, it was discovered that there was no definition of “communications common carrier.” It also clarified intercept parallels that were not previously included in the Nevada Revised Statutes (NRS) 179 and 200. She also dispelled the concerns of law enforcement that A.B. 306 would prevent the officers from wearing wires. However, she understood they might have concerns regarding other aspects of the bill.

She requested the committee to consider an amendment to page 5, line 14, item C, to change the language from “for use of the general public,” to “more readily accessible to the public,” due to a concern brought to her attention by Mr. William T. Koot, Chief Deputy District Attorney, Clark County. The change would prevent the bill from affecting CB and HAM radio operators.

Vice Chairman Manendo called for testimony in support of A.B. 306. He then called for testimony against A.B. 306 and recognized Mr. Ben Graham, Legislative Representative, Nevada District Attorney’s Association. Mr. Graham referred the committee to his handout (Exhibit I), which contained various pleadings and documents filed in a case in Las Vegas, which he felt was important to demonstrate the necessity of wearing wires and allowing phone line taps to apprehend and prosecute criminals.

Mr. Graham indicated there was no more of a need for legislation on the topic now than there was in 1999, when a very similar bill, A.B. 496 of the Seventieth Session, was heard. There were already strong constitutional and statutory protections of privacy rights. There was also strong case law that there could not be a violation of your reasonable expectation of privacy without law enforcement having to go through significant measures. He urged the committee to act as they did in 1999, and not pass A.B. 306. He then requested that Mr. William T. Koot, Chief Deputy District Attorney, Clark County, continue the presentation.

Mr. Koot explained that Lane vs. Allstate posed the proposition that one could not record one’s own telephone conversation, as determined by Justice Springer. He stated that Associate Justice Robert E. Rose expressed there was confusion as to the word “person.” Mr. Koot stated that A.B. 306 was used as a pretext to prevent the use of body bugs that were used by law enforcement in investigations. He cited the need for the use of body bugs by referring to the case in the handout (Exhibit I). It involved a man imprisoned in the Clark County jail, Jaramie Womack, that tried to hire somebody to kill the key witnesses that turned him in to the police. They placed an undercover officer in the jail, who wore a body bug (wire), and in turn were able to record Mr. Womack stating his clear intention to pay somebody to kill the witnesses, and that they deserved to die because they were responsible for his loss of freedom for the rest of his natural life. He stated that Lane vs. Allstate was a wiretap case, and that the purpose of A.B. 306 was to stop law enforcement’s use of wearing wires (body bugs).

Upon completion of Mr. Koot’s testimony, Ms. Buckley reprimanded Mr. Koot for his maligning of Ms. Giunchigliani. Mr. Graham apologized to the committee and explained the strong feelings regarding the issue. There was no intended offense to Ms. Giunchigliani or to the committee. Vice Chairman Manendo thanked Mr. Graham for his apology.

Captain Nadeau testified on behalf of the Washoe County Sheriff’s Office and the Nevada Sheriff’s and Chief’s Association. He indicated they opposed A.B. 306, as they opposed A.B. 496 of the Seventieth Session. Their undercover officers were very concerned about the bill and felt it would be an extreme detriment to their investigations as well as deadly. Wires (body bugs) were used to gather information to arrest and prosecute criminals as well as to monitor the safety of the undercover officer and listen for signs of danger.

Mr. Kent Lauer, Executive Director of the Nevada Press Association, testified in opposition to the bill because it would hamper investigative reporting.

Vice Chairman Manendo called for any further testimony either in support of or against A.B. 306. There being no further testimony, he closed the hearing on A.B. 306 and opened the hearing on A.B. 344.

Assembly Bill 344: Revises definition of criminal assault. (BDR 15-977)

Assemblywoman Bonnie Parnell, Assembly District 40, introduced her bill on behalf of Gayle Farley, mother of deceased Kellie Von Urquidy-Parry. When her daughter was murdered, she discovered there was a loophole in the law that allowed a person such as her daughter’s murderer, who had a long history of violent events and was a serious danger to the public, to remain free. She studied the laws of several other states and identified the loophole in Nevada’s law that did not take into account, “with intent to cause fear.” The intent of A.B. 344 was to close the loophole with its proposed changes and additions to current statutes, by revising the definition of criminal assault.

Senator Mark Amodei, of the Capital Senatorial District, co-sponsored the bill. He explained that the tragic real life scenario that identified the loophole and brought about this bill, happened in a domestic setting. He stated A.B. 344 would support efforts against domestic violence. The bill would add the element of “reasonable apprehension” to its “elegant definition of criminal assault.” He urged the committee to pass the bill, which in his opinion should have always been the definition of criminal assault.

Captain Nadeau stated that he worked with Ms. Gayle Farley, mother of deceased Kellie Von Urquidy-Parry, and Mr. David W. Clifton, Chief Deputy District Attorney, Criminal Division, Washoe County, on the issue that would be solved by passage of the bill and he explained his involvement in the case that brought forth A.B. 344. He then turned the stand over to Ms. Farley.

Ms. Farley appeared in support of A.B. 344, which would revise the definition of criminal assault as set forth in NRS 200.471. She expressed to the committee that they were the only ones who could help people like her and her family. Her only daughter, Kellie Von Urquidy-Parry, was shot in the back by Brandon Allen with a 50-caliber handgun at point blank range and murdered on October 22, 1999. She described that after he shot her daughter, he left her bleeding on the floor, reloaded the gun, and placed the bullet casing in his mouth and sat down to drink a Pepsi, with no remorse. He also showed no remorse throughout the trial. Her daughter left behind a three-year-old son, Dylan Parry. She asserted the criminal system needed to change, and laws needed to be less ambiguous.

She stated that Brandon Allen was arrested for threatening people with weapons several times, four of which were for pointing a gun at someone, yet he never served time for any of the offenses. On one of the occasions, he pointed a gun at his wife’s back and then shot the ground at her feet. Scared of repercussions from him after he was arrested, she wrote to the judge to let him go. He was sentenced to only two years of probation. He was issued an early release nine months before his sentence was up. He immediately attempted to purchase a gun afterward, but was denied due to his record, so, his mother bought it for him for his birthday. Brandon Allen was her daughter’s first high school boyfriend, and it broke her heart when they broke up. They reunited after six years and he killed her three weeks later. She implored the committee to not let the same thing happen again.

Vice Chairman Manendo extended the committee’s sympathy and condolences to Ms. Farley, and thanked her for her testimony. He then called upon Mr. Clifton.

Mr. David W. Clifton, Chief Deputy District Attorney, Criminal Division, Washoe County, stated he had been a deputy district attorney for approximately 17 years. He mentioned that Nevada’s laws differed greatly from other states with regard to criminal assault. He described that in Nevada, a person could hold a knife to somebody’s throat and threaten to kill them, but unless they followed through with the threat, it was not a crime. He noted that not only was it not a crime, but it was not a felony as it should be. He explained that in Brandon Allen’s case, he had held a shotgun to his father’s head and threatened to blow his head off. He stated on other instances, Mr. Allen would hold a gun at his wife’s back (Kimberly Allen) and threaten to shoot her if she did not do as he wanted.

In one incident that occurred on October 17, 1997, when Mr. Clifton was the assigned Chief Deputy District Attorney, Brandon Allen pointed a gun at Kimberly Allen’s back and threatened to shoot. He then purposely shot the ground right next to her feet. Since he did not intend to shoot her, it was not assault with a deadly weapon, let alone a felony, according to Nevada law.

Mr. Clifton explained that the case was originally charged as assault with a deadly weapon, and a felony charge for a shot into an occupied structure. Due to the loopholes in laws regarding both charges, the prosecutor could not charge Brandon Allen with a felony. Instead, he was charged with a gross misdemeanor of illegal discharge of a firearm. He was issued a suspended sentence of two years, which meant two years of probation, despite his violent background and repeated threats, which weren’t taken into account because they were not actual crimes according to Nevada law. Then, in 1999, he shot and killed Kellie Von Urquidy-Parry.

When Ms. Farley approached him about why Brandon Allen was out on the streets despite his violent background and frequent threats, all he could tell her was that it was what the law allowed. He stressed to her that Brandon Allen was not let off easily due to a plea-bargain, but because the law as it stood, with loopholes, did not allow them to prosecute him with a felony, which allowed him to subsequently still carry a weapon. Since Nevada requires specific intent, the perpetrator would need to have the specific intent to commit the injury on the person along with committing the attempted act. He concurred with Senator Amodei that the language of the bill as it was, was perfect in accomplishing what was needed to rectify the law. The bill would make Nevada law match that of other states and what was taught in law schools, with regard to criminal assault.

Mr. Carpenter opined there was a breakdown in the penalty process. The law would have covered some of the offenses committed by Brandon Allen when he was sentenced to probation. He could have been given jail time which would have had a greater impression, but wasn’t. Perhaps the penalty phase needed to be legislated. He stated it seemed the language in the bill would be difficult to prove, and may be a larger burden. Mr. Clifton noted, though the judge could have sentenced Brandon Allen to jail, he only sentenced him for the illegal discharge of a firearm, not a crime against a person. Even if the judge sent him to jail, he still would have been released and allowed to possess a firearm, because the charge was a gross misdemeanor crime against property, not a person. Mr. Carpenter responded the bill would help do what they wanted it to, but it would be difficult to prove “another person in reasonable apprehension.”

Mr. Brower thanked the witnesses. He was shocked that the definition of criminal assault was different from what he learned in law school, and inquired about the background of the statute which defined criminal assault. Mr. Clifton opined it was an antiquated statute from the crime bill of 30 years ago that had the same wording as the California law from 1872. California changed their law approximately 30 years ago by altering the definition of attempt, but Nevada had not. There was a need for change to the statute. The language included in A.B. 344, was similar to language in Arizona Penal Code 13-1203, which included in their definition of assault, “Intentionally placing another person in reasonable apprehension of imminent physical injury.” Assault was a crime of fear.

The Chair was returned to Chairman Anderson who called upon Mr. Gustavson for questions. Mr. Gustavson inquired what the difference was between the statutes governing assault and brandishing a weapon. Brandishing, statute NRS 202.230, required two witnesses, did not require specific intent on the part of the perpetrator, and was only a misdemeanor offense. The statute was limited to a small number of specific weapons. He opined assault law should include crimes of fear, not just attempted injury. He stated A.B. 344 was the only adequate way to address the deficiencies in the law.

Mr. Oceguera expressed his concurrent concern that the definition of criminal assault in Nevada wasn’t the same as he had learned in law school. He requested clarification of the ability to assault. Mr. Clifton responded, the statute on assault as written, coupled the present ability and specific intent to do harm. He noted the language of present ability could be included in the bill, but that it would not be necessary. The language “reasonable apprehension” included the intent of present ability. It would be an objective test for the judge and/or jury to decide whether a “reasonable person” would have been in fear based on the conduct and possible imminent or immediate injury that could have resulted from the conduct of the perpetrator.

Ms. McClain inquired if “imminent” and “immediate” had the same meaning. She cited that Mr. Clifton explained Arizona deliberately used the word “imminent.” Was the correct word used in the language of the bill? Mr. Clifton explained “immediate danger” regarded fear of injury that was going to happen quickly, almost spontaneously, but that “imminent danger” meant the injury was going to occur, not based on time. The crime of harassment and stalking were very similar to the bill, but were different in nature. They included the same language of “fear or threat of fear of imminent danger,” which meant future danger. He acknowledged the language overlapped a little with the laws with regard to harassment if the word imminent was used. After careful thought and consideration, the word “immediate” was the appropriate word for the bill. He explained the inclusion of the “reasonable standard” set forth by the phrase “reasonable apprehension” prevented the bill from being too broad, and maintained its constitutionality.

Chairman Anderson thanked the witness for his testimony and recognized Ms. Clark. Ms. Juanita Clark, on behalf of herself and her family, supported the bill and urged the committee to pass it.

Chairman Anderson called for questions and further testimony either in support of or opposition to the bill, and for any testimony of amendments that should be considered for the bill. There being none, he closed the hearing on A.B. 344. Mr. Manendo requested Chairman Anderson to accept the letter from the Attorney General’s Office (Exhibit J) into the record in support of A.B. 344. Chairman Anderson accepted the letter for the record.

ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS A.B. 344.

ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.

THE MOTION PASSED UNANIMOUSLY. ASSEMBLYMAN BROWER AND ASSEMBLYMAN COLLINS WERE NOT PRESENT FOR THE VOTE.

Chairman Anderson requested Assemblywoman Parnell to present the bill on the floor, and advised her that the committee would have a floor statement prepared for her use on behalf of the bill.

Chairman Anderson called for any further information to be brought before the committee. There being no further business, the meeting was adjourned at 9:42 a.m.

RESPECTFULLY SUBMITTED:

Sandra Albrecht-Johnson

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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