MINUTES OF THE

SENATE Committee on Judiciary

 

Seventy-First Session

April 24, 2001

 

 

The Senate Committee on Judiciarywas called to order by Vice Chairman Jon C. Porter, at 8:30 a.m., on Tuesday, April 24, 2001, 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 Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

 

COMMITTEE MEMBERS ABSENT:

 

Senator Mark A. James, Chairman

 

STAFF MEMBERS PRESENT:

 

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Carolyn Allfree, Committee Secretary

 

GUEST LEGISLATORS PRESENT:

 

Assemblyman Donald (Don) G. Gustavson, Washoe County Assembly District No. 32

Assemblywoman Barbara K. Cegavske, Clark County Assembly District No. 5

 

OTHERS PRESENT:

 

James F. Nadeau, Lobbyist, Nevada Sheriffs and Chiefs Association, and Washoe County Sheriff’s Office

Chris R. Carter, Bomb Technician/Diver, Consolidated Bomb Squad, Reno Police Department

Roger Wheeler, Investigator, Douglas County Sheriff

Gemma Greene Waldron, Lobbyist, Nevada District Attorney’s Association, and Washoe County District Attorney’s Office

Gary E. Milliken, Lobbyist, Community Associations Institute

Stan Olsen, Lobbyist, Las Vegas Metropolitan Police, and Nevada Sheriffs and Chiefs Association

Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorney’s Association

Pete Bachstadt, Lobbyist

Lucille Lusk, Lobbyist, Nevada Concerned Citizens

 

Vice Chairman Porter opened the hearing on Assembly Bill (A.B.) 105.

 

ASSEMBLY BILL 105: Revises provisions pertaining to explosive and incendiary devices. (BDR 15-425)

 

James F. Nadeau, Lobbyist, Nevada Sheriffs and Chiefs Association, and Washoe County Sheriff’s Office, explained that A.B. 105 attempts to solve a problem law enforcement has experienced over the past few years concerning explosive devices.  He said people can drive in downtown Reno with pipe bombs in the back of their cars, and no law exists to make the mere possession of a pipe bomb illegal.  Law enforcement must prove the pipe bomb was intended to either injure somebody or destroy property, he said.  This bill has been redrafted several times, he said, in order to address concerns by people who deal with explosives on a regular basis and have valid reasons for explosives in their possession.

 

Chris R. Carter, Bomb Technician/Diver, Consolidated Bomb Squad, Reno Police Department, presented an example of the kind of situation A.B. 105 is designed to address.  He said, some years ago, when he was on duty as the on-call bomb technician in Reno, he was called by police, who, in the process of searching a car they had stopped, found a time fuse in the car.  Mr. Carter said he asked the owner if there were explosives in the vehicle, and the owner refused to answer him.  He subsequently found a pipe about 18 inches long and 4 inches in diameter that was filled with black powder, was fused, and would have detonated had the fuse been ignited.  He said he filed a case with the district attorney’s office, but the case could not be prosecuted because intent could not proven.  The suspect claimed he had the pipe bomb to scare gophers and had no intention of blowing up a casino, Mr. Carter said.

 

Roger Wheeler, Investigator, Douglas County Sheriff’s Department, Minden, and Bomb Technician, Tahoe-Douglas Bomb Squad, Zephyr Cove, said that about 1 1/2 years ago two construction workers at the Horizon Casino, Stateline, got into a fight and one stole the other’s car.  A crime report was filed for the theft of a vehicle and, while the victim was cleaning the perpetrator’s belongings out of his room, he opened a gym bag that contained components of a pipe bomb and a 1 pound can of gunpowder, Mr. Wheeler said.  He said law enforcement was unable to charge the owner with anything because there was no law on the books providing that possession of components or the device was a crime.

 

Vice Chairman Porter asked what excuse was offered for being in possession of the items, and Mr. Wheeler said law enforcement was never able to interview him.  He said they were never able to pursue a criminal complaint, and it made them very nervous because, when components are that readily available, it would have taken only a few seconds to create an explosive device.

 

Senator Wiener, inquired about the language “may be readily converted,” and asked if there were situations in which something could be used for a legitimate purpose, but in the wrong hands, could readily be converted for inappropriate use.  Mr. Wheeler answered it is solely up to the imagination of the bomber to build a unique bomb.  So, it is possible to buy many things off the shelf in a store that are perfectly legitimate, that with a little manipulation may be converted to an explosive device, he said.  Senator Wiener said that was her concern.  Mr. Nadeau pointed out that no person who deals with explosives on a regular basis is going to have the blasting caps, the fuse, the detonation cord, and the explosives all in one area, because it is too dangerous.  He said, “To have all of those components in a readily available set-up is a situation that is unsafe . . . .  Readily available . . . means you have everything right there, prepared to put together the device, or the device is already constructed.  That is where we got that language.”

 

Senator Wiener explained she is concerned about an innocent situation being misconstrued.  “How do you discern when, as we just heard, anything, with a creative mind, could be made into one of these devices?” she asked.  “I guess interpretation of intent is an issue for me,” she said.  Mr. Carter told Senator Wiener he understands her concern.  He has wires, pipes for extending faucets, things that could conceivably be used to make explosive devices, in his garage, he said; however, he does not have pipes with end-caps with holes drilled in them.  “That would be converting something legitimate beyond its intended use . . . .  It is not illegal to have black powder, it is not illegal to have hobby fuse, it is not illegal to have ammunition . . . but, when you convert these things beyond their normal use into something that clearly can only be used as a destructive device, that is what we are looking for in this bill,” he said.

 

Senator Wiener asked if the operative language, then, is “readily converted,” and added she is concerned about capturing more than is anticipated.  Mr. Nadeau said that is exactly correct.  He said the language was taken from statutory language currently being used both federally and in other states.  Reading from A.B. 105, section 3, subsection 3, “This section does not prohibit a person from possessing any material . . . (b) In an amount which, if detonated or otherwise exploded, would not ordinarily cause substantial bodily harm to another person or substantial harm to the property of another,” Mr. Nadeau stated, “We are trying to avoid those unintended consequences.”  He gave the example of people being blown up by mail bombs.  He said, under current law, the person transporting the mail bomb to the post office could be in possession of an explosive device and not be charged under state statute.

 

Senator Wiener asked about the hoax bomb portion in section 6 of the bill, and asked for an anecdotal experience that might have prompted introducing it in this legislation.  Mr. Nadeau cited the example of a bank robbery in which the subject carried a device with wires coming out of it, made to look like an explosive device.  It was not, in fact, an explosive device, but it created all the fear and anxiety requiring the bomb squad to go in and treat it as if it were a real device.  Senator Wiener asked what the penalty would be for someone who used a hoax weapon to create the impression it was a real weapon.  Mr. Carter said the penalties are the same as if the weapon were real.

 

Senator McGinness noted the bill was specific regarding model rocket engines (section 3, subsection 3, paragraph [c]), and he asked whether it should not also be specific about the black powder shooter.  Mr. Nadeau said section 3, subsection 3, paragraph (b), is intended to address the black powder issue.  “Generally the black powder and the smokeless powder enthusiasts . . . are not going to have the component parts,” he said.  He explained that the model rockets were included because of some of the fuels and components that are used.

 

Senator Care noted intent is not an element included in section 3 of the bill, and asked about the hypothetical situation in which a son borrows the vehicle of a father who is in the mining industry.  Mr. Nadeau said a variety of things comes into play, and said the following:

 

A normal, responsible miner is not going to be driving around with explosives in his car, with all of those components . . . in a readily available means . . . They are not going to have their blasting caps and their explosives sitting in the same part of their truck . . . There are too many things that happen . . . That is why we got to the definition of readily available or readily converted . . . They have to be within an area [allowing them to be] very easily converted into an explosive device.  That is where we were going with the mere possession . . . it is not intent; it is just mere possession.

 

Vice Chairman Porter asked what the penalties would be, under section 6, for a juvenile with a hoax bomb, and Mr. Nadeau said it would be treated like any other juvenile felony offense.  Senator Washington asked if fire crackers and cherry bombs would be classified as explosive devices under A.B. 105, and Mr. Nadeau replied he believes fireworks would be covered under section 3, subsection 2(b), “which is really a catch-all for those kinds of things.”

 

Gemma Greene Waldron, Lobbyist, Nevada District Attorney’s Association, and Washoe County District Attorney’s Office, said the District Attorney’s Association supports A.B. 105.  The bill will make it easier to prosecute the cases that cannot be prosecuted under current law, she said.

 

Vice Chairman Porter closed the hearing on A.B. 105 and opened the hearing on A.B. 38.

 

ASSEMBLY BILL 38:  Authorizes notice of meetings of units’ owners and executive boards of associations of common-interest communities to be sent by electronic mail upon request. (BDR 10-279)

 

Assemblyman Donald (Don) G. Gustavson, Washoe County Assembly District No. 32, said he sponsored A.B. 38 in response to concerns raised by his constituents regarding the legality of providing notification of homeowners association meetings by electronic mail (e-mail).  Nevada Revised Statutes (NRS) 116.3108 and 116.31083 do not specifically prohibit such notification, but neither do they permit it.  This bill is meant to clarify the issue.  Since many people still do not have access to e‑mail, the bill allows a homeowner to request notification; it does not require this form of notification.  This is strictly permissive language.

 

Gary E. Milliken, Lobbyist, Community Associations Institute, spoke in support of A.B. 38, and emphasized it is permissive, provides an option to the homeowner, and makes clear that notification by e-mail meets requirements of the law.

 

Senator Care noted there are some homeowners associations with over a thousand members, and notification by e-mail would save them money.  Vice Chairman Porter asked Mr. Milliken if he saw any way the language could be misconstrued to require the homeowner to accept notice by e-mail, and Mr. Milliken replied he believed the language was clear that notice by e-mail must be initiated by the homeowner and not imposed by the association.

 

Vice Chairman Porter closed the hearing on A.B. 38 and recessed the meeting at 9:15 a.m.

 

Vice Chairman Porter reconvened the meeting at 9:22 a.m. and opened the hearing on A.B. 24.

 

ASSEMBLY BILL 24:  Prohibits person from directing light emitted from laser pointer into or through certain places and at certain persons under certain circumstances. (BDR 15-16)

 

Stan Olsen, Lobbyist, Las Vegas Metropolitan Police and Nevada Sheriffs and Chiefs Association, expressed law enforcement’s support of A.B. 24.  Laser beams pointed at officers are identical to lasers used on a firearm, and it is impossible to tell the difference.  People use laser pointers intentionally to frighten officers, and there is currently no law prohibiting them from doing so.  In southern Nevada, the sheriff’s helicopter has been “painted” with laser beams.  On one occasion the pilot was temporarily blinded and had to call in an emergency because he thought he was going to crash.  Moreover, there was an incident in California in which a laser did cause a Los Angeles police helicopter to crash.  Mr. Olsen stressed this kind of thing has become a serious issue.

 

Vice Chairman Porter said the bill looked familiar and asked if it was not passed as written last session.  He asked Mr. Olsen to explain, for the record, what happened to that bill.

 

ASSEMBLY BILL 541 OF THE SEVENTIETH SESSION:  Prohibits certain acts relating to sale, distribution, possession or use of laser pointers. (BDR 15‑1597)

 

Mr. Olsen replied that he thought the bill failed because of something about the way it was worded and that it included more than just law enforcement personnel.  Senator Wiener stated she sat in on the conference on the bill.  The major distinction is that it was written somewhat more narrowly, to make it illegal for those in uniform.  There was a concern uniformed officers should not be the only ones protected by the legislation.  A.B. 24 addresses those concerns by providing for a misdemeanor in the case of the general public.

 

Mr. Nadeau expressed support for A.B. 24.  Senator Washington asked how difficult it is to trace someone who is painting officers with lasers, and Mr. Nadeau answered it can be quite difficult.  Unless you are looking directly into the laser, you cannot see where the laser is coming from, you can only see what it is hitting, he said.  He told of an incident a couple of years ago in which ski area groomers working at about 2 a.m. were painted with lasers and had to shut down until sheriff’s officers located the culprit and stopped him.  It turned out the man was in a condominium unit and was using a rifle scope and “having fun scaring the heck out of everybody,” he said.

 

Ms. Waldron said Nevada District Attorneys are in support of A.B. 24 and believe it is important to keep readjusting the law to keep up with technology.  Senator Wiener said she was curious, not for purposes of an amendment, but wondered if there should not be a warning on the packaging of laser pointers that misuse could be illegal.  “Do we do things like that?” she asked.  Ms. Waldron said she has seen warnings on various products, generated by the company producing the item, to protect the user of the product.  But, she said, she is not aware of a government warning such as Senator Wiener suggests.  She said prosecutors must show something is a deliberate act, versus an accidental act, and it is done in such as way as to reasonably cause fear in someone.  Senator Wiener said she thinks there are people who might knowingly do something, but not know it is illegal.  Ms. Waldron replied ignorance of the law is no excuse.  Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorney’s Association, said the time has come for this law because, “sooner or later, somebody is going point a laser in a dangerous situation and get shot back at.”

 

Vice Chairman Porter closed the hearing on A.B. 24 and recessed the meeting at 9:35 a.m.

 

Vice Chairman Porter reconvened the meeting at 10:00 a.m. and opened the hearing on A.B. 305.

 

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

 

Vice Chairman Porter commented he had called this last recess in deference to Chairman James, who wished to be present for the hearing on A.B. 305, but he is unable to be here.

 

Assemblywoman Barbara K. Cegavske, Clark County Assembly District No. 5, as the primary sponsor of A.B. 305, made the following statement:

 

This bill makes it a crime, under specific circumstances, to secretly videotape another person without his or her consent; it also criminalizes the distribution of such material . . . .  With the advancement of video-technology, it has become easier to obtain uninvited video images of other people and their private affairs.  Further, these images are likely to wind up on the Internet or to be mass-distributed without permission.  This bill is the result of stories where individuals were videotaped in various and very embarrassing states of undress in restrooms, dressing rooms, locker rooms, apartments, and hotels.  In the past, states have tried to prosecute this type of behavior under peeping Tom statutes or criminal trespassing statutes.  Victims have always been forced to rely on civil tort law remedies; current Nevada law does not allow victims to seek criminal redress.

 

Many states, including Arizona, Arkansas, California, Florida, Indiana, Louisiana, Ohio, Utah, Virginia, and Washington, have already enacted statutes that criminalize this type of video voyeurism conduct.  In bringing this bill forward, I asked staff to review these other states’ statutes, and A.B. 305 represents several of these states’ efforts, whereby we feel that we have created a piece of legislation that will withstand constitutional muster.

 

Mr. Olsen said Las Vegas police and Nevada sheriffs support A.B. 305, and he told of instances in which someone’s privacy was violated and law enforcement was unable to pursue the matter criminally.  Mr. Nadeau spoke in support of the legislation and cited a case in which someone set up a video camera in a restroom, in a business, that would go on when the light was turned on.  He said currently they are unable to charge or prosecute such an individual for any criminal violation.

 

Senator McGinness noted in subsection 2 of A.B. 305, the press is not mentioned in the list of persons who are authorized to distribute such material, and he asked if the press was comfortable with the language.  Assemblywoman Cegavske said the wording that gave everyone comfort and specifically points to the area of concern is, “for the purpose of sexually arousing or gratifying himself or others” and, “a reasonable expectation of privacy.”  She said the press wanted to make sure the first amendment right is protected and was involved in crafting the language of the bill.

 

Vice Chairman Porter asked if “video” is a broad enough term, with digital devices and new technology that could skirt the intent of the law.  Mr. Olsen said, technically speaking, the word “video” is very limiting, but subsection 1 does refer to digital recording and other visual technology, and that addresses the concern.

 

Senator Washington asked how Category E felony, in subsection 3, and Category D felony, in subsection 4, were arrived at.  Assemblywoman Cegavske replied there are two different offenses, one who commits video voyeurism for his own gratification, and one who distributes the product of video voyeurism that would be obtained by pedophiles who would distribute it.  Senator Washington asked if it is not currently a greater offense for the actual recording and sale of child pornography.  Mr. Graham said pornography was not really being addressed; the bill is addressing violations of personal freedoms in situations in which there is an expectation of privacy.  Senator Washington responded that the question of whether the language in subsection 1 refers to pornography or not is close to splitting hairs, because arousal and gratification are what is being sought from the medium.  Ms. Waldron explained it is currently a Category A felony to produce or distribute child pornography, and the difference between this bill and current law is that, under current law, the child is actually being directed to engage in sexual conduct or behavior.  Under this bill, the person does not know he or she is being recorded, “but due to the fact that they [sic] are in a state of undress, it may sexually stimulate the person who is actually doing the recording, and the person that is actually being recorded . . . does not even know they [sic] are being recorded,” she said.

 

Senator Washington said he is not trying to belabor the issue, he is just trying to clarify where the distinction is made.  With reference to the language in subsection 1, “without the consent,” he said a child does not necessarily give his or her consent, but may be forced into a situation.  Ms. Waldron answered the words “without consent” in the context of this bill would remove it from the situation where a husband and wife are recording each other in the privacy of their own home.  “This is for a person who is in a locker room just changing their [sic] clothes and has not a clue that there is a video camera in the vicinity,” she said.

 

Senator Washington said he is not asking for an amendment, but if he were a defense attorney, and child pornography is a Category A felony, he would choose the lesser of the two offenses.  Ms. Waldron responded that defense attorneys may well try to use this bill to get around the child pornography charge.  She stated:

 

But, the difference is the actual viewing of it.  I would have to look at it as a prosecutor and see exactly what we are looking at . . . and, if I can say that it was a sexual portrayal of a child, or the child was asked to engage in sexual conduct . . . then, that is going to be child pornography.  If it is just that the child was in a locker room changing after the baseball game, obviously does not know a camera is going, then that is going to be this crime.

 

Mr. Graham said that they do not have a great number of the cases A.B. 305 addresses, but they are trying to address a fact-specific situation in the hope it will act as a deterrent.

 

Pete Bachstadt, Lobbyist, spoke in support of A.B. 305, and provided his written comments (Exhibit C).

 

Lucille Lusk, Lobbyist, Nevada Concerned Citizens, expressed support for A.B. 305 and said it has attained a fine constitutional balance for the protection of privacy without infringing on any other rights.  She commented that child pornography cases come under an entirely different set of laws and it is the responsibility of prosecutors to determine how to charge.  A.B. 305 closes a loophole in the law, she added.

 

Vice Chairman Porter closed the hearing on A.B. 305.  There being no further business, the meeting was adjourned at 10:30 a.m.

 

 

RESPECTFULLY SUBMITTED:

 

 

 

Carolyn Allfree,

Committee Secretary

 

 

APPROVED BY:

 

 

 

                       

Senator Jon C. Porter, Vice Chairman

 

 

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