MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
April 26, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:50 a.m., on Thursday, April 26, 2001, in Room 2149 of the Legislative Building, Carson City. The meeting was video conferenced to the Grant Sawyer State Office Building, Room 4102, Las Vegas, 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 Jon C. Porter, Vice Chairman
Senator Mike McGinness
Senator Maurice Washington
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Assemblyman Greg Brower, (part) Washoe County, (part) Carson City Assembly District No. 37
STAFF MEMBERS PRESENT:
Bradley A. Wilkinson, Committee Counsel
Allison Combs, Committee Policy Analyst
Ann Bednarski, Committee Secretary
OTHERS PRESENT:
Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department and Nevada Sheriffs and Chiefs Association
James F. Nadeau, Lobbyist, Nevada Sheriffs and Chiefs Association, and Captain, Washoe County Sheriff’s Office
Ben Graham, Lobbyist, Nevada District Attorneys’ Association
Philip J. Gervasi, Lobbyist, Police Officers’ Association, Clark County School District
Belinda Brown, Member, Police Officers’ Association, Clark County School District
Rose E. McKinney-James, Lobbyist, Clark County School District
Rick C. Bennett, Lobbyist, University of Nevada, Las Vegas
Robert Dickens, Lobbyist, University of Nevada, Reno
Adam Garcia, Police Chief, University of Nevada, Reno
Ronald P. Dreher, Lobbyist, Peace Officers Research Association of Nevada
Andy (Eldon) Anderson, Lobbyist, Las Vegas Police Protective Association, and Nevada Conference of Police and Sheriffs
Mike Murphy, Department of Detention and Enforcement, City of Las Vegas
Tamara Evans, Washoe County School District Police Department
Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office
David S. Gibson, Lobbyist, Clark County
James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice
John C. Morrow, Lobbyist, Washoe County Public Defender
Nancy E. Hart, Deputy Attorney General, Civil Division, Office of the Attorney General
Chairman James began the meeting by introducing Assembly Bill (A.B.) 220.
ASSEMBLY BILL 220: Revises provisions governing duties of certain peace officers when certain felonies are committed or attempted in their presence or in area that is within their jurisdiction. (BDR 14-141)
Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department (METRO), provided a list of Category A felonies (Exhibit C). He expressed support for this bill, stating the original form was too broad, and included many agencies inappropriately. Specifically, he said METRO believed fire arson investigators should be excluded as they are recognized as experts in finding causes for fires in all arson investigations.
Lieutenant Olsen continued, describing A.B. 220 as a ‘victims’ bill’ and not a union issue, as some will say; he said, “It is not. It is a victims bill.” The intent of the bill is for a Category A felony crime victim to be protected by a criminal investigation conducted by those individuals considered and trained as experts in the crimes of murder, attempted murder, kidnapping, and some sexual assaults, or, Category A felonies. He said there had been crimes committed in limited-jurisdiction areas, and the expertise was not there to continue the investigation successfully. Therefore, he added, some of the investigations were not conducted in the manner an expert would have used.
Lieutenant Olsen explained the intent of the bill is to have limited-jurisdiction agencies work in conjunction with primary law enforcement agencies. He explained a primary law enforcement agency basically permits their officers to respond to the scene of a crime, and take any immediate or life-threatening actions necessary, effect an arrest to protect their life and the life of the victim, apprehend the suspect, and protect the crime scene. Then, at the point of investigation, when the crime scene has been protected, those who are expert in the specific type of crime-investigative skills come forward and conduct the investigation, he said. This, he added, ensures a proper prosecution in court.
James Nadeau, Lobbyist, Nevada Sheriffs and Chiefs Association, and Captain, Washoe County Sheriff’s Office, voiced support of Assembly Bill 220. He explained the intent of this legislation is not to diminish anyone or any law enforcement agency, rather, he said, it is proposed in the spirit of cooperation, with respect for all the men and women who work in the field of law enforcement and their importance and contribution to protecting society. Captain Nadeau continued he has been with the Washoe County Sheriff’s Department for 29 years, in law enforcement for 32 years, is a graduate of the FBI National Academy, and he said, “I’ve been to hundreds of training schools for a variety of investigative skills.” Despite this training and as the commander of the detective division, Captain Nadeau announced he would never be the lead investigator in a homicide. He said the department consists of experts in homicide investigation, crime-scene investigation, and sexual assaults who are specialists in their areas of investigation. He said he believed it is these people who should be investigating crimes. Captain Nadeau added Category A felonies, the most onerous of crimes, should be investigated by those with the most extensive, specialized training and focus.
Chairman James asked if currently the limited jurisdiction or specialized agencies are failing to call in the felony crime specialists. Lieutenant Olsen answered:
Yes, there have been some problems where different types of crimes have occurred and either the limited-jurisdiction agency felt they could handle them and did, or felt they could handle them and found they got in ‘a little over their head.’ Then, they came to METRO for help salvaging the case.
Lieutenant Olsen said his reference was to crimes of sexual assault, homicide, and attempted homicide. He said the agencies he referred to included the Clark County School Police; University of Nevada, Las Vegas (UNLV) Police; Clark County Park Police; and the City of Las Vegas Marshals. He added both the Clark County and Washoe County district attorneys support A.B. 220. He included the chiefs of police from Henderson, North Las Vegas, Reno, Sparks, and the Washoe County Sheriff as supporters of this bill.
Senator Care asked about the “mission of school police.” He read the definition of the role of school police, adding, “a crime in progress” is the exigent exception to the definition. He cited an example of someone from the Division of Forestry who happened upon a robbery of a 7-Eleven store and, in fact, gave chase and killed the robber in a shootout with him. It was determined, he said, this ranger had the power to act as he did simply because he was a peace officer. Senator Care pointed out there is nothing in the bill with regard to limited jurisdiction preventing a peace officer, with exigent circumstances prevailing, from responding to the immediacy of the commission of a Class A felony crime.
Captain Nadeau agreed, stating the language of the statute was specifically added to ensure a peace officer could take immediate steps to mitigate a situation. He cited a recent disturbance in the middle of a street, stating the first person on the scene was the patrol sergeant who immediately intervened, took command of the situation, intervened on an attack by the suspect on the victim, took the suspect into custody, and then sealed the scene awaiting the department detectives. He said the crime-scenes unit handled the investigation. He continued, stating the situation he described is how he interprets the value of A.B. 220. Captain Nadeau said part of the issue here is by continuing with an expansion of jurisdiction, authority is also expanded. He offered for consideration, citizens do not care, “what color the uniform is if they are under attack or need assistance. All they want is someone to intervene and come to their aid.” Then, once safe, he said people want their own jurisdiction, and the experts to investigate, and carry the problem to prosecution.
Senator Care said the focus appears to be on investigations, stating the bill is about Category A felonies and asked if the bill implied in Category B, C, or D felony crimes, it is acceptable for a limited-jurisdiction officer to investigate those crimes. Captain Nadeau answered, another portion of this legislation requires an interlocal agreement and, he added, those are issues to be decided within the agreement. Which crimes are investigated, including which categories of felony crimes, have to be mutually agreed upon between the jurisdictions.
Senator Care asked what happens when an offense first treated as a Category B felony crime becomes a Category A felony crime after discovery. He used first- and second-degree kidnapping as an example, which are categorized as Category A and B felony crimes respectively. Captain Nadeau said, currently, when this situation occurs, the cases are transferred to experts when necessary.
Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association, said the specializations developed over the last 20 to 30 years are very significant, which, he stated, are the subject of the hearing. Mr. Graham continued, no one should feel diminished or slighted, but recognize some aspects of investigation have become very specialized and very detailed. He said he felt this bill would only encourage different agencies to seek help and be able to accept some things are not in their field of expertise. From the viewpoint of a prosecuting agency, he said, “We want to see the highest and best evidence developed and that generally, would rely on the specialists.” He said this was a good way to recognize what law enforcement agencies do, and what they do best. He reasoned there is nothing diminishing about recognizing areas where help is needed.
Chairman James asked why there were exceptions written into A.B. 220. Senator Care clarified the exceptions refer to inter-local agreements, and then asked how many of these agreements already existed in Clark County. Mr. Graham said he did not have a number but knew there were several inter-local agreements and different agencies have ongoing relationships. Chairman James then said, if local governments currently enter into these agreements, is it necessary to ask for this legislation? He was verifying if the Legislature has to decide who investigates crimes, but local governments can enter into agreements it was inconsistent. He stated if left as it is now, then agencies can decide between themselves without the intervention of the Legislature.
Lieutenant Olsen said the wording of the bill emerged from a subcommittee on the Assembly side of the Legislature, where school police and the peace officers research association were represented. The discussion in the subcommittee centered around a limited-jurisdiction agency deciding they did not want to handle a Category B felony crime, and giving the primary law enforcement agency the latitude to absorb these crimes, too. Chairman James commented, “It is an exception that undermines the purported intent of the whole bill.” He continued, “The bill must be predicated upon the notion that the Legislature has to control who responds to and then, who investigates these certain crimes.” He said he is having some problems with this bill.
Captain Nadeau offered a major crime task force might come from a variety of agencies, explaining A.B. 220 offers latitude to the agreement between agencies. He felt A.B. 220 helped define the jurisdiction of authority between different law enforcement entities.
Chairman James called for testimony in opposition of Assembly Bill 220 and invited those present from Clark County School District to speak first.
Philip J. Gervasi, Lobbyist, President, Police Officer’s Association, Clark County School District, stated opposition to A.B. 220 as amended because it is not in the best interest of school police. He continued there is an interlocal agreement in place with jurisdictions of Clark County and when Category A felony crimes occur, such as homicide or sexual assault, the local jurisdictions have been notified for assistance. Mr. Gervasi said, the amendment states if an interlocal agreement exists, we (school police) have options to ask for expert assistance but, he went on, if we do not have said agreement, the sheriff or local primary law enforcement agency makes all decisions regarding the crime. He said he did not feel this was in the best interest of the children or the police of Clark County School District. He stated when Mr. Graham was asked how many cases were turned back to the limited jurisdictions, he responded, “none.” He continued, citing Lieutenant Olsen’s testimony regarding “some problems” but pointed out Lieutenant Olsen could not document one case. He used an example of a crime at a school when a DNA (deoxyribonucleic acid) sample was analyzed and matched the suspect’s DNA, it led to a profile on another crime the METRO Police had been investigating since 1997. The DNA testing was used to help solve the case. Mr. Gervasi said school police are totally willing to enter into an interlocal agreement and, in fact, he stated Chief Elliot Phelps, Clark County School District Police, sent Clark County Sheriff Jerry Keller a letter stating this willingness. He said Sheriff Keller responded he is not prepared to enter into such an agreement.
Mr. Gervasi continued, saying another problem in Clark County is money in the budget. He said the METRO had cut the number of people entering the police academy because of budget shortages. He said the METRO is currently overloaded within their own jurisdiction. He added, Henderson currently has a bond issue for $24 million, and without it, they will have to cut police services. Mr. Gervasi reported North Las Vegas, and the school district police also need financial assistance. He questioned why any jurisdiction mentioned would take on more of a responsibility, when agencies cannot handle the need within their own areas. He explained not only are they short on funds, but also, lacking adequate staff; therefore, he said, communication is backed up. And, he added, it is the senior citizen, or the school kid, who suffers for this backlog and understaffing. Mr. Gervasi also asked the committee to consider the cost of the bill, stating there is a cost connected to A.B. 220. He specifically asked who would pay officers who worked on another jurisdiction’s crime. He complained there was a subcommittee formed to increase jurisdiction of school police headed by Senator Mathews, but no one from Clark County was informed, therefore there was no input from Clark County. Chairman James asked what happened to the referenced bill; Mr. Gervasi replied it is currently in an interim committee. Mr. Gervasi said as currently written, A.B. 220 permits the school police to call primary-jurisdiction police, but only a patrol car will be sent, and not a detective. He added crimes in need of special investigation take several days to get underway, and he added, because we deal with children, school police go out immediately.
Mr. Gervasi concluded the bill is too one-sided and asked first, the judiciary committee set the bill aside, but then asked them to consider a compromise, bringing both sides some mutually workable agreement. Right now, he explained, if there is no agreement, or the sheriff does not want to sign an interlocal agreement, if and when the sheriff is called he can say, ”We don’t have an agreement and he’s (the sheriff’s) in charge.” It is too one-sided, Mr. Gervasi said. “Kids need service ‘right away’ and we do it the best. We’re there. We’re trained to deal with the children. The other jurisdictions, they do what they do best. We will call them if we need them, but we do not need a state law,” Mr. Gervasi said.
Senator Porter asked how the process currently works. He posed if a school is located across the street from a police department and an officer is needed, who is called and how does it work. Mr. Gervasi said currently school police respond to protect the citizens stating if they are flagged down, they help whoever is in need until the local jurisdiction arrives. Senator Porter then recalled a case where the school alarm rang and rang, adding the Henderson police were across the street, but could not respond because of a jurisdiction problem. He wanted to know if this was a normal occurrence. Mr. Gervasi said, regarding school alarms sounding, Senator Porter’s scenario would be true because the school police have the keys to schools. He explained the school has to be entered to turn off the alarm. Despite interlocal agreements, alarms pose a key problem, he said. Mr. Gervasi said alarms are problems because there are 240 schools, and sometimes more than one alarm is sounding. The school police respond to the school closest to their location, or, to the alarm indicating a person may be in the building; this type of alarm is called a “live alarm,” he said. If there is life in danger, he continued, local jurisdiction would be called, and they would have to break a window to get in to help.
Belinda Brown, Member, Police Officers Association, Clark County School District, joined the discussion, stating on most occasions, if an alarm goes off near local jurisdiction, local-primary jurisdictions do go out and check the outer perimeter of the building in question. She continued if they suspect something more is going on inside, the school police are still responding to the call. Usually, she explained, alarms go off in schools because someone has rattled the door and set off an alarm.
Senator Care commended the school police, and recognized their purpose and focus are to keep children safe in school, and en route to and from school. He said, if a homicide occurred in school, he would think the school police would realize their training may be the same as any other officer, but they do not have the staff, crime lab, forensic lab, and therefore, for safety only, call in the primary law enforcement agency. Senator Care said he thought this would be the common sense approach when something outside the normal happens. Mr. Gervasi said Senator Care was not wrong, and in fact, the procedure described is what was done in a drive-by shooting. He said the school police set up the crime scene and the METRO took over the case. He admitted school police are not specialized, and not qualified to handle certain felony crimes, and added, the school police have never handled a homicide case, but have routinely called in the specialists.
Senator Porter asked if the superintendent, who recently talked about cutting services, had included cuts to the school police budget. Mr. Gervasi reported the superintendent of schools said everyone had to “tighten their belts.” He said the school police department, in an effort to be attentive to the goal, have cut overtime, and added, some officers have not requested pay for any overtime hours they have worked. He verified funding for school police had not been changed or reduced.
Rose E. McKinney-James, Lobbyist, Clark County School District, was representing Clark Count School District Police Chief Elliot Phelps. She referenced correspondence from Chief Phelps outlining the basis for his opposition to A.B. 220 (Exhibit D). Chief Phelps had been involved in several hearings in the human resources committee regarding a variety of bills related to school policing. She stated Chief Phelps was appointed over one year ago by legislation initiated through the Senate; and he reports directly to the superintendent of schools. Over the last several legislative sessions a lot of legislation regarding school policing has been discussed, often resulting in the formation of subcommittees and interim studies, because a comprehensive look at jurisdictional issues was needed. Ms. McKinney-James said the school district abides by the need for discussion and compromise. She explained school policing was created to provide on-site public safety for students.
These policemen at schools are, in fact, peace officers, trained to protect the interests of the children at school sites, Ms. McKinney-James said. She mentioned the ongoing dialogue between Chief Phelps and Sheriff Keller was an effort to reach some understanding with respect to an interlocal agreement. Ms. McKinney-James added there are other jurisdictions working quite effectively through interlocal agreements and said:
Ours (interlocal agreement) is in place and we are willing to modify it to reach some accommodation . . . This is one of a number of bills related to school policing, jurisdictional issues . . . (Chief Phelps) indicates the bill in its current structure redefines the authority of school police from that of geographical jurisdiction to that of perceived capability . . .
Ms. McKinney-James continued to explain A.B. 220 also creates a subcategory within the category of peace officer standards based on employment rather than training. She said if there is opportunity to further discuss the issues beyond this hearing, Chief Phelps would be available to respond.
Next, Chairman James asked the representatives from the University of Nevada, Las Vegas and University of Nevada, Reno (UNLV and UNR) to speak about their opposition to Assembly Bill 220. Rick C. Bennett, Lobbyist, Director of Government Relations, University of Nevada, Las Vegas, said the Board of Regents is empowered by Nevada statute to create a police department for the University and Community College System of Nevada (UCCSN). Currently, he said, there are police departments on the campuses of UNR, UNLV, and Truckee Meadows Community College. Mr. Bennett said these police officers are all sworn peace officers, category 1, Peace Officers’ Standards and Training (P.O.S.T.) certified, with the same powers and authority as any other peace officer in the state. The jurisdiction, he continued, is also defined by state statute, and allows officers to enter into interlocal agreements with other law enforcement agencies for the purpose of rendering mutual assistance. He said officers in the UCCSN force have entered into interlocal agreements, and revise the agreements as needed. Mr. Bennett said the use of interlocal agreements works well; and it allows for specific needs on one campus, or one community, to be adjusted to become unique and suited to the law enforcement agencies involved. He added A.B. 220 seems to be related primarily to local law enforcement agencies, between the primary law enforcement agency and others, such as the school police. Mr. Bennett said, “While the jurisdiction of university police is limited by statute, the UCCSN Police Department is a state law enforcement agency with authority on state property.” He said A.B. 220 exempts certain state’s law enforcement agencies, considered of limited jurisdiction, from the provisions of this bill. He then suggested the UCCSN police should be included in the exemption. He provided a copy of a proposed amendment addressing the exemption (Exhibit E).
Robert Dickens, Lobbyist, University of Nevada, Reno, came forward with Adam Garcia, Police Chief, University of Nevada, Reno. Mr. Dickens said UNR’s police department accepts its limited jurisdiction and added, “Pursuant to the language included in A.B. 220 under section 4, the university has, for over 10 years, very successfully, entered into effective interlocal agreements to provide police services in the areas surrounding the campus.” He said the university police also are required to report campus crime statistics to the federal government under the “Jeanne Clery Act on Campus Security,” (enacted in 1990 as the “Crime Awareness and Campus Security Act of 1990” and amended in 1998 to officially change the name to “Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act”) and protect the fraternity and sorority houses around campus, and the other university properties, such as the site in Stead. He cited a gang-related shooting on the campus relinquished to the City of Reno for investigation by the specialized gang unit there. Mr. Dickens said he felt the issue of A.B. 220 is, ”The delicate balance between centralization of law enforcement responsibilities, response times, and local control.” He remarked students, faculty, and administrators appreciate having their own local sheriff. It is, he said, the university police who know where hazardous materials are located on campus, such as radioactive materials, or viruses. He added the fire department appreciates the university police because they know what is behind each door, whereas a Washoe County deputy sheriff or City of Reno policeman would lack such specialized information.
Mr. Dickens said he believed A.B. 634, forthcoming to the Senate judiciary committee, addresses accountability and providing review boards for campus police departments. He commented, “We worked very well with Assembly education on that piece of legislation.”
ASSEMBLY BILL 634: Authorizes creation of campus review boards to review allegations of misconduct against peace officers of police department for University and Community College System of Nevada. (BDR 34-862)
Referring back to A.B. 220, Mr. Dickens pointed out some inconsistencies in the bill. One, he cited, was a reference to universities located in cities with a population of over 100,000 people. He said Western Nevada Community College, located in Carson City (where the population is less than 100,000 people), could create its own campus police department, without restrictions of the terms of A.B. 220. He added the same is true of Great Basin Community College, located in Senator Rhoads’ Northern Nevada Senatorial District.
Adam Garcia, Police Chief, University of Nevada, Reno, and representing UNLV’s police chief, Jose A. Elique, said he came to address the chilling effects he believes A.B. 220 will have in its present form. The University of Nevada campuses jointly take pride in the service they provide to their constituents, stating considerable time and energy are spent implementing a community-oriented policing philosophy. Chief Garcia said a common trust has been established between the faculty, students, and staff. “We provide immediate investigative response to all crimes on campus,” he said.
Chief Garcia mentioned the university is federally mandated to report crimes under the Jeanne Clery act; he added it seemed this reporting requirement was not considered in proposing this legislation. Should A.B. 220 be enacted, he said, the university police would be unable to fulfill their federal obligations because, he explained, there would be a number of crimes not reported. Failure to report crimes to the U.S. Secretary of Education represents a violation of the law and subjects the university to fines and loss of significant federal funding.
In closing, Chief Garcia made a statement on A.B. 220:
[Assembly Bill 220 is] somewhat discriminatory in nature. This bill treats officers in my department differently than others, based solely on an area of service. It is important to note the university police officers in my department as well as at UNLV meet all the necessary requirements, receive the same training as other officers . . . If this bill is passed we will be unable to attract and retain qualified police officers. It will, in effect, reduce our department to the status of uniformed security guards . . . This is a frightening prospect.
Chief Garcia said limited jurisdiction does not mean limited education, or ability. In conclusion, he asked recognition of the safe university community, and the relationship established in the community between residents and campus police, and then, Chief Garcia asked for consideration to avoid placing the community in jeopardy by passing this bill.
Mr. Dickens said he would request an amendment to the bill excluding the university policing system, reiterating UCCSN is a state organization. He asked the committee to consider amending Assembly Bill 220, as suggested, adding the proponents of the bill support this amendment.
Senator McGinness asked Chief Garcia who investigated the recent homicide of the campus police officer. He responded, the City of Reno handled the homicide and added a very cooperative relationship exists between the two agencies.
Ronald P. Dreher, Lobbyist, Peace Officers Research Association of Nevada, passed out a statement stating their concerns and positions on A.B. 220 (Exhibit F). He read part of a statement from Deke Di Marzo, President of the Washoe County School Police Officers Association, stating their opposition to Assembly Bill 220. Mr. Dreher added, this legislation is not needed and there is no reason to burden the Nevada Legislature. He said there currently are interlocal agreements in operation and working well.
Andy (Eldon) Anderson, Lobbyist, Las Vegas Police Protective Association, and Nevada Conference of Police and Sheriffs, said he represents the university police and other limited jurisdictions, and agreed with Mr. Dreher, stating this bill is not necessary. He said there already is a working relationship between services; he continued, refinements should be local issues, and not state law. Mr. Anderson added, when school police departments originated about 20 years ago, they provided relief of responsibility to the street police, who prior to a separate school law enforcement agency, had to respond to every school-related problem. If, he said, you enact a law restricting them, when the interlocal agreements already exist, you defeat the purpose of the formation of school/university police. He closed his comments voicing a position of opposition to A.B. 220.
Mike Murphy, Department of Detention and Enforcement, City of Las Vegas, said he represented the Las Vegas City Marshals and was testifying on behalf of Mike Sheldon, Director, Department of Detention and Enforcement, City of Las Vegas. He referenced the importance of expertise in law enforcement stating he was in law enforcement for 29 years. Mr. Murphy said he represents management and does not see A.B. 220 as a labor issue. This issue is about agreements and the ability to make agreements, such as interlocal agreements, and memorandums of understanding, as these agreements avoid duplication of services, he said. He submitted a “Memorandum of Understanding” (Exhibit G) his department developed, stating, “We are willing to sign today.” This, he explained, is the best vehicle to reach a workable understanding, and solve problems and issues brought to light by the bill. He added state laws can only be corrected every 2 years which he said is, “too rigid” for the business of law enforcement. Mr. Murphy said as crime trends change, the ability to adjust and modify procedures accordingly must be maintained. He explained interlocal agreements are made in emergencies and conversely, memorandums of understanding are regarded as procedural for day-to-day operation. He acknowledged something is needed to clarify questions, but reiterated it could be handled at the local level.
Chairman James said if law enforcement agencies would just enter into agreements there would be no need for this bill. He continued, whether the bill passed or not, the exceptions would not apply. Chairman James stated he thought the bill provided a better negotiating position to primary law enforcement agencies. Mr. Murphy agreed, stating, as A.B. 220 is written, the local jurisdiction dictates to limited jurisdictions what will happen. The concept of this bill, he explained, is if the involved jurisdictions do not agree, nothing happens. Agreements, he added, should be by mutual understanding. Mr. Murphy suggested if the legislation was about state, or even federal government controlling procedures of local jurisdictions, he believed these jurisdictions would oppose it as these limited jurisdictions are now. Mr. Murphy concluded with a statement saying, “There’s plenty of crime to go around. We need to work together . . . I think we can do that without legislation.”
Chairman James referred to Mr. Murphy’s statement as a “quotable quote,” and Senator Porter joined him by stating it was “a good comment, there is plenty of crime to go around.”
Tamara Evans, Washoe County School District Police Department, announced she had distributed copies of her testimony (Exhibit H) and asked if she could comment on testimony she heard today. She said the Washoe County School District Police Department covers three different jurisdictions: the cities of Reno and Sparks, and Washoe County. It means, she explained, there would have to be three interlocal agreements and school police officers would have to determine which of the three agencies to contact. She requested, to ensure standardization and avoid inconsistencies, the amended language of S.B. 86 (Exhibit I) be considered. She said it calls for a study of policing over the next two years, adding she would be willing to implement whatever recommendations emerge from the study. Ms. Evans said her department plans to participate in the study. She concluded with a statement of opposition to A.B. 220.
SENATE BILL 86: Extends area of jurisdiction of school police officers. (BDR 34-823)
Chairman James closed the hearing on A.B. 220 and opened hearing on A.B. 397.
ASSEMBLY BILL 397: Provides for admissibility in evidence of certain statements made by unavailable declarants. (BDR 4-997)
Assemblyman Greg Brower, part Washoe County, part Carson City Assembly District No. 37, came forward accompanied by Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office, stating A.B. 397 passed in the Assembly and now he is presenting it before the Senate judiciary committee. He introduced the bill to modify the hearsay rule, which is intended to help prosecutors in domestic violence cases. Assemblyman Brower believed the committee had the understanding the hearsay rule says, “Statements made out of court and not under oath cannot be admitted in a trial.” He stated there are many exceptions to the general rule, and this bill simply asks for another exception in a domestic violence context. He said a victim who makes a statement to a police officer, and who does not testify later at a hearing, renders the statement to police inadmissible under the hearsay rule. Assemblyman Brower said, unless some other hearsay exception is applicable, the victim’s statement to the officer is never heard by the jury. This bill would allow these statements to be presented by the prosecution to the jury.
Chairman James asked if this exception applies to criminal cases only. Ms. Waldron said the bill applies to both civil and criminal cases, stating it is patterned after a California law, recognizing often there is difficulty getting the victim to court after they have made a statement to the police at the time of the call. She continued, frequently, it is the defendant who is preventing the victim from testifying in court. This is accomplished by secreting her (the victim), threatening her, or she, herself, is frightened by the consequences and decides not to come to court. Assembly Bill 397, she said, allows the district attorney to go forward with the prosecution if she is unavailable, but has previously made a statement, either verbally or in writing. The officer then is allowed to testify and photographs are admissible.
Chairman James questioned the language, “at or near the time of the event occurs,” and, “excited utterance.” He stated his concern is an officer most likely is not present at the time of threat of abuse, or the abusive act. Ms. Waldron said, “Usually the officer is called in quite close to the time of the incident, in most cases.” Sometimes, she explained, the victim is not crying, or displaying any “excited utterances” but does tell the officer what happened at or near the time of the event. She said someone has been battered, the police have been called, and they arrive to investigate.
Senator Care asked if a hearsay exception is allowed, is a confrontation clause, and a guarantee of trustworthiness required? He continued he would be suspicious of a victim being unavailable. Senator Care stated in the state of New Mexico the policy was all abuse and domestic violence cases were prosecuted whether the victim liked it or not. He said many times the victim and abused had, “kissed and made up” and therefore, the victim is not willing to testify. He said the victim would then be declared a hostile witness, resulting in a means to admit statements made to officers at the time of the incident.
Chairman James asked where the language, “at or near” came in, and said he did not know what the phrase meant. He indicated it was too ambiguous, asking for an example, if calling police 3 hours later, or perhaps, the next day fall within the range of the language. Assemblyman Brower said the intention of the bill is to establish an act of domestic violence has occurred, and has been reported, accepting there is some lag time involved, but clearly, not hours or days. Chairman James stated he understood the intention but felt the language had to be consistent with existing law. Assemblyman Brower said he asked prosecutors who expressed interest in this bill if there was another way to get statements to the police admitted, perhaps, he suggested, an existing hearsay rule exception. He said their response was negative, reporting their previous attempts had failed.
Senator Care said he continues to be concerned about the victim who, he said, may come from someplace like Iowa, and was abused here in Nevada, and is very reluctant to come back. Ms. Waldron responded A.B. 397 addressed Senator Care’s concerns, assuring him the judge makes the decision to allow or disallow a statement to police, only after considering the trustworthiness of the victim, the time elapsed, motivation to fabricate, or a bias, and the availability of the victim. Ms. Waldron called the bill another tool for prosecuting domestic violence cases. She continued to explain prosecutors are required to show due diligence in serving the victim stating, “The games played by the defendant cease when they know that whether or not the victim shows up, some of these statements are going to come in. That’s not going to impede the prosecution of the case . . .”
David Gibson, Lobbyist, Clark County, said he is opposed to A.B. 397 because he said, “It is not necessary.” Chairman James asked how the statement of a victim is allowed. Mr. Gibson responded the police get a report from the victim at the time of incident, and if victim denies under oath the incident occurred, the report is then entered. And, he continued, if the victim does not come to court, it is a “stretch” to establish failure to appear as the defendant’s fault. Mr. Gibson said there is a great fear of abuse, because someone could be convicted without ever hearing testimony from the victim. He said he felt prosecutors already had a lot of tools to convict abusers, adding he has never seen a prosecutor hampered by an unwilling or absent victim.
Chairman James asked if there is really a problem. He read, “Statements written, recorded, or told to a law enforcement officer,” are admitted if the declarant is unavailable, plus the court has to determine other guarantees of trustworthiness. He asked if anyone is really prejudiced with all those safeguards.
James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice, stated the purpose of the hearsay rule is to have the accuser available for cross-examination, and challenged on allegations and statements they made. Often, he said, statements look good, or sound good, but, by disallowing the questioning of those statements, it is “handcuffing” the ability of a defendant, or his attorney, to defend. In closing, he said, in agreement with Mr. Gibson’s testimony, this is not a problem in Clark County, and suggested some judicial education might be in order to understand how to use the hearsay rule effectively.
John C. Morrow, Lobbyist, Washoe County Public Defender, said he opposes the bill because he has a problem with the assumption victims do not come to court because they are coerced or threatened. He stated sometimes it may well be the truth, but there are cases where the reason people do not show up in court is because they have not told the truth. Mr. Morrow stated:
It is a real miscarriage of justice if people are allowed to be convicted under the circumstances where they are not allowed to cross-examine. That’s what this does . . . in a weak case and a weak prosecutor to be propped up by a rule of evidence. That’s just wrong.
Chairman James questioned how a police statement is admitted into a hearing if the victim is really not available. He mentioned all the safeguards are in place to validate the crime. The chairman said people are not convicted without some evidence. Mr. Gibson said often they have pictures, but sometimes they have nothing but a statement from an unavailable victim. He said he has seen people convicted without the victim, or photographs, and does not believe the statement from law enforcement should be allowed.
Nancy E. Hart, Deputy Attorney General, Civil Division, Office of the Attorney General, came forward to state the attorney general supported the concept of Assembly Bill 397 because, hopefully, it will enhance the prosecutors’ ability to hold domestic batterers accountable for their abusive behavior. She emphasized this is only an exception for victims who are unavailable. Ms. Hart said the overwhelming reason victims do not show up is from a sense of fear, or coercion from the defendant. She mentioned the safeguards in place and reiterated, fear is why victims do not come to court. She added another safeguard, included to prevent abuse, is the advanced notice, in writing, the hearsay exception would be used.
Senator Porter closed the hearing on A.B. 397 and opened A.B. 581.
ASSEMBLY BILL 581: Makes various changes concerning orders for protection against domestic violence. (BDR 3-480)
Vice Chairman Porter announced there were 4 minutes left to the meeting before the committee had to convene on the Senate Floor. Ms. Hart came forward stating the attorney general’s office supported A.B. 581, and submitted a detailed letter (Exhibit J). Additionally, Ms. Hart submitted copies of letters in support of this bill from the statewide Domestic Violence Prevention Council, and the domestic violence ombudsman housed in the attorney general’s office (Exhibit K). She said Veronica Frenkel, Domestic Violence Ombudsman, serves as the coordinator for the “Full Faith and Credit Project.” Ms. Frenkel, she said, was unable to attend today.
Ms. Hart said the attorney general submitted A.B. 581 to clarify provisions in Nevada law concerning registration, and full faith in credit in orders for protection against domestic violence issued by other states, territories or Indian tribes. She said they are referred to as “Foreign Protection Orders.” She added A.B. 581 is legislation to accommodate the requirements of the national Violence Against Women Act of 1994 (VAWA).
The VAWA, she said, is an important source of federal funding for Nevada. In order for funding to continue, Ms. Hart said, Nevada must certify its laws do not require the victim bear the cost associated with filing, issuance, registration, or service of a protection order.
The bill also outlines procedures for the court to implement full faith and credit in Nevada, Ms. Hart said. This section of the bill contains few changes from existing statutes but explains the stages of granting full faith in credit to a protection order. She said the goal of Assembly Bill 581 is to eliminate the ambiguity and confusion encountered by law enforcement entities in implementing full faith in credit orders.
Senator Porter interrupted the meeting, announcing the continuation of testimony on A.B. 581 would be on tomorrow’s agenda. He added A.B. 582 was postponed, and rescheduled as part of tomorrow’s agenda.
ASSEMBLY BILL 582: Revises provisions pertaining to competency of defendants. (BDR 14-345)
Vice Chairman Porter adjourned the meeting at 10:30 a.m.
RESPECTFULLY SUBMITTED:
Ann Bednarski,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: