MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
February 27, 2003
The Committee on Judiciarywas called to order at 8:15 a.m., on Thursday, February 27, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Ms. Genie Ohrenschall (excused)
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Sabina Bye, Committee Secretary
OTHERS PRESENT:
Kevin Higgins, Chief Deputy Attorney General, Reno, Nevada
Tara Shepperson, Ph.D., Executive Director, Nevada’s Cyber Crime Task Force, representing the High Tech Advisory Board, Reno, Nevada
Richard L. Siegel, Ph.D., President, American Civil Liberties Union of Nevada; and Professor, University of Nevada, Reno
Lucille Lusk, Cochairman, Nevada Concerned Citizens, Las Vegas
Janine Hansen, President, Nevada Eagle Forum
Lynn Chapman, Vice President, Nevada Eagle Forum
James Jackson, representing the American Civil Liberties Union of Nevada and Nevada Attorneys for Criminal Justice
Ben Graham, Legislative Representative, Nevada District Attorney’s Association, Las Vegas, Nevada
Benjamin Blinn, Citizen, Carson City, Nevada
Chairman Anderson:
The Assembly Judiciary Committee will come to order. [Roll called] There is a quorum present; 12 are present, 3 absent. I already have the first page here and we have quite a few people who wish to speak, predominantly on A.B. 99, so let’s try to take them in order.
A.B. 93—Mr. Higgins and Dr. Shepperson, Senator Wiener indicated to me that she would be more than pleased to come over in support of this legislation, and wanted me to inform the Committee that both Senator Wiener and I serve on the Cyber Crime Task Force of which this particular piece of legislation is a product. It is one of the more enjoyable groups that I get to deal with in the interim and I have been at this for close to four years. Welcome.
Assembly Bill 93: Makes various changes to provision governing electronic mail that includes advertisement. (BDR 3-267)
Kevin Higgins, Deputy Attorney General, State of Nevada:
Good morning, Mr. Chairman, members of the Committee. My name is Kevin Higgins and I am a Deputy Attorney General with the state of Nevada. With me today is Dr. Tara Shepperson, Executive Director of the Nevada High Tech Crimes Task Force Advisory Board. We are appearing this morning on behalf of A.B. 93. One of the last things the former Attorney General Del Papa asked me to do when she left office was to promise her that we would do something about spam this session, and we told her that we would. It is a conundrum that many states have struggled with and few have found solutions for. The federal government has promulgated probably 20 bills in the last three years, none of which have made it to the floor for a vote, and it likens to Mark Twain when one time had a quote about the weather in Virginia City that “everybody complains about it, but nobody does anything about it.” Spam seems to follow in the same category.
Statistically, experts estimate that 15 percent of all e-mail we get these days is spam; that volume doubles every six months, and some fear that at some point the entire e-mail system will be so overrun with it that few people will be able to use e-mail for legitimate methods.
Nevada was actually the first state in the country, in 1997, to pass a law against spam, and since then 28 other states have attempted through various means to regulate this. Some states have gone as far as to make it a consumer violation and authorize the Attorney General to prosecute certain cases; we certainly are not asking for that today. Other states have taken some approaches similar to ours.
A.B. 93 makes three general changes in the current spam law which we think will make it much more enforceable for the consumer. The first change is to require that the abbreviation “adv” or the word “advertisement” be used in the subject line of unsolicited commercial e-mail. Many states have taken this approach. It allows a consumer who knows how to use the rules sending their e-mail to just set it so those are just automatically deleted. Some states have limited that to adult-oriented e-mail. I think in Nevada we could safely do that for all unsolicited commercial e-mail under the definition currently within the statute. That exempts, much like the no-call lists that have been proposed in recent years, a prior existing relationship with somebody. If you have authorized them to send e-mail to you for some other reason on a web page, or if there are other exceptions to the statute, they can still send you this kind of e‑mail.
The second major change is [damages]. Currently the civil damages are $10 per piece of unsolicited commercial e-mail that you receive, and the consumer has to bring an action against the spammer. We are asking in the bill to increase that to $50 per piece of unsolicited commercial e-mail. We feel this will make it more likely for the consumer to take this task on. Some states, such as in California, some law firms have [created] a small industry in suing spammers because it is worth their while to sue on behalf of hundreds or thousands of consumers. Some of these spammers send out tens of millions of e-mails a day for everything, as the former Attorney General pointed out to me, from herbal remedies to Viagra, to various—I’m reading from the High Tech Advisory Board—the thing that annoyed her the most were advertisements for penis enlargement equipment that everybody seems to get in their e-mail these days.
The third thing that we would like to do is create a higher level of violations at $500 per unsolicited commercial e-mail. These are the spammers who have found ways to get around the existing statutes. This would be $500 per piece of spam that disguises the source of advertisement. [It would cover] using false or misleading information in the subject line like, “hello, I lost your address…met you at the reunion…did you lose your wallet?" Then you click it open and it is something that you don’t want to see. [It would also cover] those who provide a false return address; if you attempt to reply to them it bounces back to you; they ignore the request that many states and the federal government have imposed requiring that an opt-out return e-mail address be included. Unfortunately, many of those don’t work. Some of the law review articles I reviewed, indicate that, actually, some spammers love to get the opt-out e-mail because they know that you have opened their spam and read it. So knowing that you have opened their spam and read it makes you much more likely to open the next piece of spam. So instead of getting you off the e-mail list, it gets you on the preferred customer list.
Also included in that $500 higher fine would be people that ignore your request to delete you, [people who] provide a false return address, people who have somehow gotten your e-mail through an unauthorized fashion. There is software out there that mines Usenet discussion groups and Web sites. AOL was famous for years, unbeknownst to them, for letting people in to mine e-mail addresses of people who filled out their profiles and various AOL or other Internet sites that showed professions and hobbies and also included e-mail addresses. Software has been written to go through and mine all those e-mail addresses against the Internet service providers, which would also [be subject to the] increased penalty of $500.
As I noted in the letter (Exhibit C) that I sent the Committee, Mr. Chairman, the Attorney General (AG) is in the process of reviewing the functions of all of the white-collar fraud units in the AG’s office. One issue we would like to look at over the next two years is the extent to which the Attorney General can take on Internet crime and high tech crime and possibly be involved in enforcement actions against the high-volume spammers. We are not committing ourselves to that by any means, but it is an issue we want to discuss internally over the next two years to see what we can do.
I think this is a good compromise between not promising the citizens of Nevada that resources will be used to stop the e-mail. We are certainly in no position for every one person—and we get phone calls today saying, “I have gotten one bad piece of e-mail; can you stop it?” We are not in the position to enforce that, but this does increase the resources that private consumers would have, but I also think it makes it attractive to somebody that can take on a class action or find a spammer that has sent tens of hundreds of thousands of e-mails to do that on behalf of the general public.
With me today is Dr. Shepperson; I think she may have a few comments, and then I am available for questions, Mr. Chairman.
Chairman Anderson:
The only one that I have been getting lately is the second son of the King of Bernoose or the Crown Prince of. . . would like you to. . .
Dr. Tara Shepperson Executive Director, Nevada Cyber Crime Task Force, representing the High Tech Advisory Board:
And all they want is your bank account number.
Chairman Anderson:
Yes, no big thing, at least in my case, no big thing.
Dr. Tara Shepperson:
I probably have five complaints a day about that particular solicitation, which is one of the most broadly spammed ones around. I just want to talk very briefly. [Introduced herself] I am here representing the High Tech Advisory Board. The intent of this law is really consumer protection. Certainly, it is often very difficult to tell in your e-mail what is a spam and what is not. Certainly, the idea of having an “adv” or “advertisement” allows you to put your blocking mechanism in or at least be aware when you go in yourself to delete or to read e-mail. That is certainly one of the issues.
The other issue is providing false return addresses, which is often the case. Obviously when complaints are investigated by law enforcement, it takes a great deal more time and resources when you do have false return addresses. Sometimes they can be tracked down, but it takes a great deal more time. Basically, what this will allow is, maybe in some cases, the possibility of actually bringing a spam case to the forefront for prosecution and perhaps streamlining some of the efforts of law enforcement, who literally get hundreds and thousands of complaints a day regarding spam, most of which, quite honestly, cannot be investigated. There simply are not the resources to do that. [However, we] might start focusing in on some of the more egregious violations and deal with that probably in a class action suit. I’m open to any questions.
Chairman Anderson:
I want to tell the members of the Committee that with serving on this group that it is always interesting to hear Mr. Higgins explain the legal side of the arguments and Dr. Shepperson to try to keep me aware of what the technical side of the spam and cyber crime area is. Of course, the business industry in the state is very, very aware of the problems that now face them, and as the computers become more and more common in the home, I think we have an absolute responsibility to try to identify where we can [help] the consumer. It is a good consumer piece.
Assemblyman Gustavson:
We all understand this is a problem, and as we sit here, we get the e-mails coming in constantly advertising and all this junk, but my concern is many of these, probably the majority of these, are coming from out of state and worldwide. How enforceable is this going to be? I know we can’t do it individually, but as a class action lawsuit how enforceable is our law going to be if these e-mails are coming from out of state?
Kevin Higgins:
Mr. Gustavson has hit the nail on the head. One of the primary problems there is with high-tech crime is finding out which jurisdiction is directly appropriate. We have had complaints about other activity where the file servers are in British Columbia, the guy that runs it is in New York City, and the administrators are in L.A.; the only thing that happens in Nevada is the victim. I think in this particular case, that since these people are choosing to do business in Nevada, the Nevada long-arm statute would apply. If you come to sell your goods in Nevada, Nevada law applies. However, it does make it much more difficult for a civil law suit to proceed against somebody out of state, and certainly out of the country.
One of the biggest scams happening right now is the invoicing of libraries for library books that were not actually received. It is coming out of a company in Canada, and that makes it very difficult to enforce, but if the action happens in Nevada, I believe that the Nevada court has jurisdiction in that case. If it is another state in the United States, there are ways to subpoena people to court and to certify judgments in other states. Crossing international borders is much more difficult. But it is not a perfect solution, but it is a tool. Thank you, Mr. Chairman.
Assemblywoman Buckley:
I was just wondering if the task force examined in any depth the issue of a “no-spam” list, and whether they are working in other states; maybe [we could get] a little more information on that.
Kevin Higgins:
We did look at the state of Washington, which has done basically a “no-spam” type “no-call” list. It required, in the Attorney General’s Office, the creation of basically a new unit and resources to be devoted to that. Washington residents can register their e-mail addresses on a no-spam e-mail list at the Attorney General’s Office, which has to be maintained. People who send e-mail into Washington are required to review that list to make sure that they are not sending to people there. They are also required to check to see if people there are sending e-mail to addresses that can be easily identified as being in the State of Washington, so if it is “Kevin at Seattle.com,” it is assumed in that case. They have brought one lawsuit against a large spammer that has survived a challenge in their state Supreme Court and the spam industry is trying to push that to the U.S. Supreme Court.
So, there is a more aggressive way to handle this. We had considered that and discussed it in the advisory board in the face of the current budget issues, and I don’t believe the Office of the Attorney General was asking for any additional personnel or programs this session. We thought this was the compromise to do that. That could be something we could consider down the road, most certainly, if economic times improve and it comes to the forefront.
Assemblywoman Buckley:
I appreciate that information. I know that there is a bill coming in the Commerce Committee in a week on a “no-call” list, not funded with state appropriation but with a fee on the telemarketers, and so maybe if that is set up this session, then next session we could consider adding spam to it. I think that would be a great thing to be more aggressive in this area.
Chairman Anderson:
I might mention for members of the Committee that Dr. Shepperson has now been working for three, almost four years, not quite since the very beginning but almost, which is a full-time job for half-time pay—this is about the best way to put it. Is that still the case, Dr. Shepperson?
Dr. Tara Shepperson:
My understanding is that that is probably going to be the status quo for a while.
Chairman Anderson:
We have been trying to get the Attorney General—the Attorney General has worked [on it] in the last two sessions, both in 1997, and I think in 1999. We first asked for it to become a full-time position and in 2001, we tried to do that again, and so it has been a while. It is a very difficult position to justify. In reality, it is too bad because it is much needed. I think Dr. Shepperson puts an enormous amount of time in compared to what the state is paying her.
[Are there] questions from other members of the Committee. Mrs. Angle, has your question been asked and answered?
Assemblywoman Angle:
Yes, thanks, Mr. Chairman. Mr. Gustavson asked the question that had to do with enforcement.
Chairman Anderson:
[Are there] other questions from members of the Committee? Thank you very much. [Is there] anyone else wishing to testify?
Dr. Richard Siegel, President, American Civil Liberties Union of Nevada:
[Introduced himself] Good morning. I just want to comment that I have always been impressed by Mr. Higgins’ professionalism, a fine representative of the Attorney General’s Office. This is the professor in me, in part coming up here, and it has to do with the question of what do we mean by the word “advertisement?”
Mr. Higgins qualified it in his oral presentation by talking about commercial advertisement, but we don’t have “commercial advertisement” in here. I wonder if we would inadvertently bring in nonprofit organizations, universities, churches, who might be seeking to solicit without intending to. I don’t know whether we would intend—also, political organizations would raise protected speech issues that do not exist for others. The ACLU has a massive advertising campaign. I would call it an advertising campaign that is in the New York Times, the Las Vegas Review-Journal, and other publications. We don’t think at this point that it is good business or good sense to do this through e‑mail. But, if we did, I think it would be protected speech that a higher court would protect us from, regardless of whether there is a general statute. I think they would make a distinction between commercial speech and political speech. They would say that since the First Amendment gives political speech a higher level of protection, we would be protected, [as well as] the Eagle Forum, who is here, or any of those organizations. So perhaps I am suggesting that you amend this with “commercial advertisement,” or at least think about that. Thank you.
Chairman Anderson:
Ms. Lang, would you clarify for the Committee?
Risa Lang:
Thank you, Mr. Anderson. I was just going to mention that in NRS 41.710, the term “advertisement” is defined for the purposes of this section as “material that advertises for commercial purposes the availability of the quality of real property, goods, or services or as otherwise designed or intended to solicit a person to purchase real property, goods, or services.” So that would be how this term should be used.
Chairman Anderson:
It looks like it’s taken care of. Dr. Siegel, they send me two massive brains to help me on a regular basis. It is just really great to have the quick response. Dr. Mortenson.
Assemblyman Mortenson:
Thank you, Mr. Chairman. I also have concerns of that abbreviation “adv” being the signal to reject mail. There are so many abbreviations in this technical world. For example, I think “adv” also stands for Apple Digital Video, which I am working with all the time, and I would exclude e-mails from tech support from Apple and things like that. I think you need to make that signpost a little bit longer, maybe the whole word “advertisement.” Thank you, Mr. Chairman.
Chairman Anderson:
Mr. Higgins, have you anticipated that particular problem? I am sure that selection was yours or somebody’s in our bill drafting.
Kevin Higgins:
That is an abbreviation that several other states have used, and several pieces of proposed legislation that failed, have used the same abbreviation. It is in the anti-spam world, I suppose, a quasi-industry standard. Of course, whether your e-mail is excluded, and whether or not you choose to exclude anything with “adv” in it, we certainly would not be opposed to changing the abbreviation. We just went with one that seemed to be commonly used in other states. I believe the bill now is worded so that “adv” or “advertisement” is the first word in the subject line.
Chairman Anderson:
I think that Mr. Mortenson is indicating that, apparently, we would be taking care of this. I am sure that there are many businesses that might alter their name to make “adv” the big part of their title if that were the out.
Kevin Higgins:
If I might add, Mr. Chairman, in prior high-tech bills, the one complaint we have heard from Internet industry people is that every state does it differently, and they don’t know how to do it to satisfy everybody. So perhaps if we pass this, Apple could be convinced not to use “adv” as the very first word in the subject, but put it further down inside the subject which would not exclude it. That was one of the complaints we received from Internet service providers; that the requirements in Nevada are different than in California, and it is too difficult to figure out who lives where.
Assemblyman Mortenson:
If “advertisement” is also, you said “adv” or “advertisement,” I think that’s good forethought. Thank you.
Chairman Anderson:
Are there any other questions from members of the Committee? Does anybody else wish to testify relative to the bill A.B. 93? We’ll close the hearing on Assembly Bill 93. The Chair will entertain a motion.
assemblyman geddes moved to do pass a.b. 93.
assemblyman gustavson seconded the motion.
the motion carried. (Ms. Ohrenschall was absent for the vote.)
The Chair will assign the bill to Mr. Gustavson.
Let’s turn our attention to Mr. Brown’s bill, A.B. 99.
Assembly Bill 99: Makes various changes regarding murder committed with intent to commit certain acts of terrorism. (BDR 15-751)
Assemblyman David Brown, Clark County District No. 22:
Good Morning, Mr. Chairman. I am encouraged by the Chairman’s desire to move things out of here. I look forward to having this; I am a true optimist. Mr. Chairman and members of the Assembly Judiciary Committee, I thank you for the opportunity to sit before you as sponsor of A.B. 99.
During my childhood, I often heard people refer to rare historical events which were so significant and traumatic in nature that a person could actually state where they were when they heard or learned of the event. I really associate only two events with a person’s ability to do that, the bombing of Pearl Harbor and the assassination of President John F. Kennedy. I grew up with no personal memory of those events. I am sad to say that we have lived through another such event that unfolded on the morning of September 11, 2001. It was a staggering event of human proportions that is difficult to assimilate in both reason and emotion, and I daresay each of us can probably tell the other where we were when we learned of that event.
The events of September 11, in conjunction with the events that unfolded over several weeks associated with the sniper case in the Virginia and Maryland area, were the events that prompted my request of this bill. In the sniper case, the prosecution elected to prosecute in Virginia because it had the harshest penalty with the specific death penalty aggravator for acts of terrorism. This bill is not intended to induce a debate on the merit of the death penalty in the state of Nevada, that currently is the law, rather it is intended to provide the most harsh penalty for acts which are first, murderous and second, terroristic in nature. The September 11 and the Virginia sniper cases each turned the community, even the civilians, of several states and our entire nation, on its head. The events terrorized lives, they altered lifestyles, invoked fear and panic in a widespread nature. Their impact was so severe, the reach so broad; this was all the result of what I consider the coldest, most deliberated acts that I have ever witnessed as a bystander.
Thus, I feel that Nevada’s harshest penalty should be applied to those who are engaged in these types of acts. With that introduction, I would like to turn to the content of the bill. You have also been handed out a sheet (Exhibit D) that has some amendments on it. As I really rolled up my sleeves and got more into the bill, particularly the definition of an act of terrorism, I felt that some changes were necessary. First, to describe the bill, generally A.B. 99 amends NRS 200.030 to include a murder resulting from or related to acts of terrorism as a murder subject to the first-degree status. It then adds to the list of the death penalty aggravators in NRS 200.033, the same acts of terrorism.
The first amendment that I thought was essential was to limit this definition to NRS 200.030 and NRS 200.033, which are the first-degree murder statute and the aggravator statute alone. The reason I felt this was essential is because I know there are some concerns, and there are some sacrosanct rights that we have in the First Amendment that I don’t want to jeopardize or impede on. So I felt that we should only look at the definition. It should only be triggered after you have an intentional, deliberate, premeditated killing. So there must be, unfortunately, a dead body before we even trigger an analysis and look at the defining elements of an act of terrorism.
On the sheet that has been handed out, under the portion that states, Section 4, subsection 6, below it says, “As used in this section;” I have amended paragraph (e) to read, “For purposes of NRS 200.030 and NRS 200.033 only, ‘act of terrorism’ means. . . ” If you look at the bottom of the page in the Section 5 amendment, NRS 200.033, which is the aggravator statute, “is hereby amended to read as follows,” and then subsection 15 states the new aggravator, “The murder was committed with the intent to commit, cause, aid, further or conceal an act of terrorism. . .” and the added language would be, “as defined in NRS 200.030.”
The concern is that if we include language that discusses disrupting or attempts to influence the conduct of policy of the government, there are many of us who would engage in those types of activities, but it certainly is not related, or rises to the level of any type of terrorism. So I feel that that limiting language should be implemented into this.
I have also added to the definition under Section 4, subsection 1, which states that any act of undeclared war, the brief phrase, “against the United States of America.” The additional amendment is a deletion. I can go to a copy of the bill and cite the page and line. If you wish to look at page 2, Section 3, line 4. If I can take lines 3 and 4 that further defines act of terrorism as “…any act that involves the use or the threatened or attempted use of sabotage, fear or violence and is intended to…” In the amendment that I propose, it adds a comma after “sabotage,” and deletes the word “fear.” The reason I have done this is because “fear” is not an act of a perpetrator, it is an emotion, it results from the actions of the sabotage or violence, and I don’t think it is useful in that definition. We can generally state that someone may use fear but in reality that is a resultant emotion, and I don’t think it necessarily belongs in that line.
I also have added to the statement, “Any act that involves the use or the threatened or attempted use of sabotage,” the word “fear” already deleted, “or violence and is intended to intimidate or coerce a civilian population. . .” I have added the word “injure” [in front of the word “intimidate].”
Finally, in paragraph (c) where it states, “Retaliate against a governmental entity or cause widespread panic or civil unrest through the substantial destruction, contamination, impairment or disruption of the public infrastructure. . .” I have inserted there so it reads, “. . .as public or private buildings, infrastructure. . .” and it goes on.
Mr. Chairman, that is the extent of the amendment that I would propose. I am happy to take any questions that the Committee might have. I know there are others who are eager to address some of the issues arising from the definition. Thank you.
Assemblyman Horne:
Mr. Brown, I am pleased with the intent of this bill and also your amendments. I thought at first that it cast a very broad net; however, I still have one concern in the area of Section 4, subsection 6, part (c), “Retaliate against a government entity. . .” You talk about the disruption of public or private buildings. Will we risk bringing in civil disobedience?
Assemblyman Brown:
Thank you, Assemblyman Horne. [I have] two responses to that. One, I would clearly state it is not the intent of this individual, nor, as I see it, this bill, to impede on the rights of civil disobedience. That is one of those sacrosanct rights that we hold very dear to us, and if this were to pull in sit-ins or even more in-your-face type objections to governmental actions and policy decisions, it’s certainly not intended to do that. So, one, I would state that it is not the intent of this bill to do that. Two, that is why I have limited the definition to NRS 200.030 and NRS 200.033. You have to have a dead person before you even have a discussion as to whether an act was terrorism, and not just a dead person, you have to have an intentional killing that was deliberate and premeditated, so we wouldn’t even get to the point. If someone is out there exercising their constitutional rights to object and be a real pain or thorn in the side of the government, more power to them; I would not want this to touch them at all.
Assemblywoman Buckley:
I support the intent of this bill, and I know we have two other similar measures and I think this is going to be one of the toughest things that we work on because we know it when we see it. It’s Pearl Harbor; it’s JFK; it’s the plane crashes; but the civil rights movement is still the best example; it was a movement that involved a lot of violence. The theme of it was a nonviolent protest, but people got killed. Could it be considered sabotage that is designed to disrupt a policy? It might fit in there, and yet, of course, that would not be any of our intent. Have you looked at any other states, NCSL (National Conference of State Legislatures), any other definitions that might be useful? Or is everybody in the same boat we are in?
Assemblyman Brown:
I am eager to engage in that debate, frankly, and you have hit the nail on the head. Chairman Anderson has indicated that [I am] extremely cautious. This really is a fascinating issue and I want to come up with the right bill. I have looked at other amendments and really wrestled with some of the language in my mind. I have thought it might be warranted to remove any reference to government in this because that merely suggests a motive, and I am not sure we are necessarily looking at motive as much as we are looking at the actions. That would certainly create a safer harbor for those who exercise those rights. Clearly, my feeling on those types of civil rights movements is [the dread of] most unfortunate loss of life. If I were to be a juror on a jury, I don’t think [I would like] those circumstances; there was so much at play, so much emotion. I don’t want to say mob mentality, but there is group mentality that really affects intent. So there are certainly some real issues here, and [I would be] happy to debate them. I look forward to a work session, whether it is on A.B. 99 or the Senate or the subsequent terrorism bills that, frankly, are much, much more broad in scope. I do believe that the core issue in those [future discussions] will be determining the definition [of terrorism].
To answer the rest of your question, I did look at other statutes. This is patterned after Virginia, which, frankly, is patterned after the federal statute. I think that most states have it, if they have adopted something. If Nevada can do it better, then we need to go through that exercise and come up with the right statute and perhaps they will be looking to Nevada for amending their statutes in the future.
Assemblyman Mortenson:
In any dispute, you have two groups or two individuals, usually two groups, one that is trying to define the terrorist, and the other that opposes it. I am not familiar with these NRS chapters. When you say there needs to be a dead body involved for this to come into play, can that dead body be in either of the groups, or does it have to be one that is dead because of the terrorist, or so-called terrorist group, or could it be the enforcement group, or the group that opposes them who kills a terrorist? In other words, how do those chapters work for a dead body?
Assemblyman Brown:
NRS 200.030 is the statute on murder. It sets forth the definitions for the various degrees of murder, one of which is first-degree murder, and it sets forth the elements that must be established, such as the premeditation, deliberation, et cetera. There is a list, if you will turn to it. It starts out, “Murder of the first degree is murder which is: (a) perpetrated by means of poison, lying in wait, or torture, or by any other kind of willful or deliberate or premeditated killing.” It goes on and discusses a killing that accompanies an attempted perpetration of sexual assault, kidnapping, arson or robbery, so these are things that we say, this is not your garden-variety murder, this is extra egregious, and we will consider it the most heinous, and it will be given a first-degree murder status. So, we would add to that list of “poisoning, lying in wait, in perpetration of a sexual assault, arson, robbery. . .committed to avoid or prevent lawful arrest. . . ”—we would add to that list, “A killing that results from the perpetration or attempted perpetration of an act of terrorism.” So when I say there must be a dead person, it results from those particular acts. Somebody had the intent to kill someone, and in this instance, they did so through the perpetration or attempted perpetration of an act of terrorism. I hope that helps you.
As far as NRS 200.033, that is that lengthy list of aggravating circumstances that a jury may consider when it is deliberating. “We have a first-degree murder; it is a conviction; now we have to see what penalty, as a jury, we are going to hand down. Will it be life without the possibility of parole? Will it be life with the possibility of parole? Will it be a fixed sentence, or will it be the death penalty? These are a list of aggravating circumstances that we feel elevate this first-degree murder so high that we think the appropriate penalty may be the death penalty.” NRS 200.033 adds to that list one more aggravator, which is when it results from an act of terrorism. It has been my intent to keep these definitions limited to that, so in order to even look at this definition, there must be the first-degree murder, you have to have that conviction, and then you get into the issue of looking at the aggravating circumstance.
Assemblyman Mortenson:
I guess I should have used an example. I think it is called Kent State [University], where a passive group was demonstrating and the National Guard came in, and there was a shooting. The National Guard killed the passive people. Now, here is suddenly a body, and whether or not the guy did it with intent, and it could have been called murder. I don’t know; I don’t recall that clearly. Does that now, because there is a dead body, because of the demonstration, even though it was passive, and even though it was one of the passive people who got murdered, does this suddenly call into effect a definition of terrorism? Because if you used “intimidate or coerce a civilian population,” and there is a dead body now, do we have this problem?
Assemblyman Brown:
In my opinion, the answer is an absolute no, because it was not an intentional killing by an individual protesting; there was no intent formulated on any protesting individual’s part to kill someone. It is a killing, or death that arose from the circumstances, but those persons that were objecting, to whatever the case, did not commit the crime.
Chairman Anderson:
I think I understand the concerns that Mr. Mortenson raises. In [my teaching career], we always have a tendency to focus on things that kids will understand. We have several filmstrips and movies on Kent State. There may be a question that I guess I had not contemplated with this particular part for a law enforcement agency or a group such as the National Guard, which is called out to carry out riot control and inadvertently, or purposely, uses the weapons they have, the result of which is someone dies. Is the action then a question of terrorism? I guess then you would have to look at what was the purpose or the law enforcement agency or the National Guard, in this case. Their physical presence on the Kent State campus at the time, and I believe that, just like the Boston Massacre, the troops were put on trial of some sort. Dr. Siegel will probably recall this better than I, but I don’t ever recall any strong penalty against the individual soldiers in this regard. Unlike the Boston Massacre, I do recall that there was an investigation, however, after which the soldiers were branded for the rest of their lives as a result of their actions. Of course [the British soldiers in Boston] had a good attorney—some guy named Adams!
Assemblyman Brown:
That I believe is a statement. Is there a question? I am happy to give my comments on that.
Chairman Anderson:
Do you think there is a possibility that a law enforcement agency or a National Guard group that would be called out to put down a peaceful demonstration may violate the intent of an act of terrorism because clearly they are there to frighten the crowd into submission? That is really what their purpose is, if you think about why they are out there.
Assemblyman Brown:
In my opinion, it would be no. I don’t think we would have problems with this statute, whether it be termed they are there to frighten the crowd into submission, or they are there for crowd control purposes; they have a legitimate purpose to be there. It would be most unfortunate if their exercise of force exceeded any necessary means and a loss of life resulted. I would imagine there would be an inquest, much like the police inquests that we have, to see if that use of force was justified or if it exceeded reason. There may be, at that point, some type of penalty given if it did exceed the bounds of reason or justification.
I don’t think there is the intent to injure, intimidate, or coerce the civilian population or to spread widespread panic. The purpose is to maintain the crowd control. Certainly any group, inquest committee, or a jury would have to look at the circumstances in their totality, consider why they were there, and what unfolded in terms of the protesters that invoked the actions of the Guard. I find it frankly impossible to see how we could reach this definition or statute with that authority behind them, unless someone just pulled out their weapon and decided in really a malicious, willful way [to harm the crowd] for no good apparent reason. I think that if that were the case, that would come out in an inquiry, and I think that individual would then have a pretty hard time with the system from there.
Assemblyman Carpenter:
I have had a little firsthand experience with this in regard to our “shovel brigade,” and I guess that if someone had wanted to, they probably would have had a case against us because we did a lot of the things that are mentioned in this bill. We did not have a dead body, but dead animals. I think I understand what we are trying to do, but I think we need to be very, very careful. I think I can understand the first one here, “any act of undeclared war against the United States of America.” To me, September 11 was kind of that situation. However, if we get into some of these other definitions, I think we might really be treading on our rights because when we were doing the “shovel brigade,” we had people that actually said that we were terrorists because we were doing some of these things that were mentioned here. I guess that we have to be very careful; the federal government is fairly powerful and they filed two suits to try to stop us from demonstrating, and both times the judge said that he would not stop us because we had those rights. On two different occasions they did bring action against us, and some of their arguments were contained within these definitions here. So I just say we have to be very careful with what we do here.
Assemblyman Horne:
I’m sorry to belabor the point on bringing in unintended actors under this bill, but in Section 5, for instance, subsection 15, where the murder is committed with the intent to commit, cause, or further conceal an act of terrorism, particularly the word “aid,” I think of circumstances where we had individuals that make phony identification for people. It may not be necessarily to aid a terrorist act, but they may be doing that. I know you have this intent element in here, but that concerns me, particularly in the light of times. Some may argue, in some instances, of overzealous prosecution if you were a criminal actor, but your actions weren’t to aid terrorism, but yet did so. Would you be drawn in under this bill?
Assemblyman Brown:
Thank you, Assemblyman Horne, excellent question, and I think the answer is no. For instance, if you have someone who produced some false identification, that is all they have done. This states that the murder was committed; the killing was committed in aid of the act of terrorism. So, the situation would be something like. . .let’s take the initial bombing of the World Trade Center. Somebody goes in to set up the bombs. Somebody for instance, the security officer comes upon them [and asks], “What are you doing?” He starts making an inquiry. The act of terrorism is blowing or attempting to blow the building up. The aiding of the act of terrorism, the murder, which aids in the act of terrorism, is the killing of the security guard who came upon that person who was trying to set the bomb. The act of terrorism was the act of attempting to blow up the building. So, the aid has to go to the murder and it wouldn’t be, in that case, merely someone manufacturing false identification.
Assemblyman Horne:
So in circumstances where aid—we will stay with this scenario—if someone’s sole purpose here is to aid terrorists who come into Nevada, or to states, with phony identification, the argument would be, were it not for someone giving terrorists phony identification, they would have been discovered. This terrorist act would have been prevented, and he knew that he was giving it to them to avoid detection. He would be, I think, largely drawn in with this bill because under those circumstances, he has aided them to commit their crime, knowingly. But someone also can do the same thing and not know.
Assemblyman Brown:
More excellent questions. I believe that it would fall out this way, a couple of circumstances. If one knew, and it was his intent to assist, and the act of terrorism was committed and resulted in loss of life, then yes, I think he could be brought in almost in conspiracy-type theory as one of the group. If, however, that were not the case, if the act of terrorism were not committed and was unsuccessful and there was no loss of life, I don’t believe, because there is not a murder, one would be drawn into this. There could be charges of conspiracy to commit offenses, but I don’t believe this would apply to that particular individual in those circumstances.
Assemblyman Sherer:
Mr. Brown, I think you have done a great job on this. I have a question. How would the Columbine juvenile situation fit into this?
Assemblyman Brown:
Well, let’s look at the language. Were those acts that involved the use or threatened use or attempted use of sabotage? I don’t think there was sabotage or violence that would fit that. If we add the word “injure,” which is presently not in the drafted bill, we certainly know it resulted in injuries, so that would affect our analysis. However, if that weren’t in there, if the act of violence was intended to intimidate or coerce a civilian population, I am not sure that those young men intended to intimidate or coerce. I think they had some real serious disturbances. I read many newspaper articles, and I don’t recall the specific reason that they stated for committing those crimes. It may have been, “we wanted to see what killing was like;” it may have been, “we didn’t like certain people,” but it certainly had a random effect, so I am not sure if it was for the purpose to intimidate or coerce. I think if you had the word “injure” in there, I do believe that you could draw them into this definition.
Let’s assume that the word “injure” is not, and perhaps then that “A” would not apply. Going on to “B,” was it to “disrupt, affect, or influence the conduct or policy of the governmental entity by intimidation or coercion?” I don’t recall that that was their purpose, so I think “B” would probably not apply. “C,” “Retaliated against a governmental entity” I don’t know if that was the case, “or cause widespread panic or civil unrest.” I believe that those were not their intentions, as disturbing as their killings were. “Through the substantial destruction, contamination and impairment or disruption of public infrastructure, communications, transportation. . .” I actually think without the word “injure” that probably would not be included. That is my personal assessment.
Chairman Anderson:
That is already covered in the existing statute.
Assemblyman Brown:
Particularly as an aggravator, multiple deaths would come in as an aggravator.
Chairman Anderson:
Current law would take care of Columbine if that were to take place here in the state of Nevada. It would be covered by taking place on a school ground, and the preparation or attempted preparation, or sexual assault, [subsection] 14, child abuse, (d) committed on a property of a public or private school, would be covered.
Assemblywoman Angle:
I want to get back to the original intent of the bill, which is the aggravator. I think that is the main thing that terrorism would be an aggravator for. Murder is capital murder, and, since we are sticking on the definition of terrorism, is there a terrorist or terrorism definition somewhere in U.S. statutes? We are dealing with this now, and it would seem to me that people have already made these definitions. Could we just extract the definition like that? I guess I want to get away from this sticking point on the definition and get to the crux of the matter here.
Chairman Anderson:
Let me help you out, Mr. Brown. Mrs. Angle, I believe that is the very issue at stake. We have to come up with what we are going to be including in this definition and that is why this is a difficult bill.
Assemblywoman Angle:
Thank you, Mr. Chairman, I understand that; that is why I was asking Mr. Brown if there might be a definition we might grab out there that would be more suitable.
Assemblyman Brown:
If I may, very briefly, again, this came straight out of Virginia statute, which, if my information is correct, came out of the federal piece. I think you may hear testimony today that the federal piece was not deliberated by members of Congress. It was perhaps rammed through rather quickly, and maybe it was the bill drafters and consultants who came up with that language. That was not deliberated by Congress, and I [am not sure of] that, and if it wasn’t, then certainly this body should deliberate most fervently over this issue.
Chairman Anderson:
I think if we are going to move with any kind of definition, either in Mr. Brown’s bill or any of the other statutes that it’s going to be dealing with, this is going to be a key issue. One of the reasons why I think we are spending a great amount of time on this is because if we can come up to something that we can sand fairly smooth while the Senate is dealing with their particular piece, while we have yet other pieces to come forward, we will have then a major piece and have raised the issues that we need to take under full consideration.
Assemblyman Oceguera:
Mr. Brown, I appreciate the intent here, and I concur with you on the aggravating circumstances being an important part of our statute, but don’t you think that possibly this is already covered, like the examples we have given—the World Trade Center, the snipers—in the aggravating circumstance number 3, which is, the murder was committed by the person who knowingly created a risk of death to more than one person by means of weapon, device, course of actions that would normally be hazardous to the lives of more than one person? Do you think that most of the circumstances we have talked about fall under that aggravator?
Assemblyman Brown:
Is that 3 or 13?
Assemblyman Oceguera:
It is 3, Section 5, in the bill on page 3.
Assemblyman Brown:
I think that much of that is accomplished in that. My response would be, in adding, twofold. One, I personally believe that the act of terrorism is so great, if it truly is to fall within a definition of an act of terrorism, I have no problem with that standing alone as a separate aggravator, because I personally feel that the harshest penalties that Nevada has should come down upon anyone who commits such a terrible crime. Therefore, to have that as a separate, stand-alone aggravator, I can accept that.
Also, I think, whether it happens in this particular statute or not, I think Nevada needs to address and define these issues, so I would include that. Again, that does not necessarily need to happen under NRS 200.033, but I think we should address that issue.
Thank you, Mr. Chairman; thank you, members of the Committee.
[Chairman Anderson called for supporters of the bill to come forward.]
Lucille Lusk, Cochairman, Nevada Concerned Citizens:
[Introduced herself] I appreciate the opportunity to address this today. We are in support of A.B. 99 because of its narrow application to murder one and an aggravator for murder one. The types of things that we all know, as Ms. Buckley says, when we see them as terrorism should certainly be among those that would obtain the greatest penalty that is available. We, too, have concerns about the definition of terrorism and I [offer] you one possible amendment (Exhibit E). I would not represent this amendment as the “be all and end all” by any means, but merely as one to be considered.
Among the things that we have recommended for the definition is that the phrase “retaliate against a government entity” be removed. There are several others, and I will not go through them in detail. Mr. Brown has proposed several. I did want to share with you in order to show you how much discussion is taking place around this and the wide variety of items being considered with regard to this definition.
One proposal that is being discussed in the other house would remove most of the language that is there and replace it with a phrase that says, “Any activity which involves a violent act or an act so dangerous to human life as to constitute a violation of the criminal laws of this state, in which is intended to intimidate or coerce the civilian population of this state,” and then say, “Influence the policy of this state or political subdivision of this state by intimidation or coercion,” remove all the rest of it, and add a statement to effect, “The conduct of this state or political subdivision of this state by assassination or kidnapping.” I only share that to let you know just how much discussion is going to take place around this definition. Whether it is carried in this bill, the Senate bill, or the bills we understand are yet to come, we, too, would encourage the state of Nevada to seriously engage in this debate and develop its own definition that addresses the issue of terrorism, which seriously needs to be addressed, and at the same time protects the rights of its citizens as we know you intend to do. Thank you.
Chairman Anderson:
[Are there any] questions for Ms. Lusk? Thank you very much. Mr. Jackson, you indicated a desire to speak but you did not indicate whether it was for, against or neutral. [Mr. Jackson indicated he was here with Dr. Siegel]
Janine Hansen, President, Nevada Eagle Forum:
[Introduced herself] Mr. Chairman, members of the Committee, I appreciate the opportunity to be here today. I also appreciate the careful deliberation of this bill. We have had considerable discussion over in the Senate, and a little bit of fireworks, and I certainly appreciate your careful questioning today. I also appreciate Mr. Brown and the amendments he has brought forward, and I think that I can support those amendments and appreciate his careful consideration.
I would like to discuss a couple of issues in the definition. I think your consideration of the definition is most important because if this definition goes in one part of the statutes it will influence the others; I think the deliberation of the Senate and their far-reaching bill needs to be taken into your concern.
In Section 3 in the definition where it talks about fear, Mr. Brown suggested taking that out and we certainly support that. But one of the sections that has greatly concerned us is Section 3, 2(b), where it says “disrupt, affect, or influence the conduct or policy of a governmental entity by intimidation or coercion.” We had some experiences, and the reason that Lynn Chapman is here today is we have had most of these experiences together in the last year in which we might be guilty of disrupting, affecting, or influencing the conduct or policy of the government by intimidation, in particular. I appreciate what Mr. Carpenter said about the “shovel brigade” in Jarbidge; I was there in Jarbidge and was also involved in some activities since then.
In the year 2000, Lynn [Chapman] and I were petitioning on a legal petition to get an issue on the ballot. We were at the Department of Motor Vehicles, and they came out of the Department of Motor Vehicles and told us that we had to have permission to petition. We said we did have permission in the Constitution of the United States and in the Constitution of the State of Nevada. They sent out the security guards and told us we had to have permission. Then they called the police, and an un-uniformed policeman came to tell us that we were going to be arrested. The next thing they did was send the paddy wagon. By that time, the media was there. I told them that was fine if they wanted to arrest me, but to please give me their names so I could sue them for violating my civil rights. I was planning to stay there. Well, they didn’t arrest me, and for the next two and a half hours I stayed in the snow and we got cold and I said finally, “If you are not going to arrest me, I am leaving.” The next day, we had an interesting occurrence in the newspaper. The Reno Gazette-Journal was supporting us, which was an epiphany for me, and also the ACLU, as well as an editorial supporting that.
Lynn [Chapman] and I almost got arrested four more times in petitioning. This is an issue on which we were challenging the government, although it was a legal petition. So we are concerned with this language and the way it talks about disrupting or affecting or influencing; we felt that the government felt like we were trying to do that.
Since that time we have been involved in some other activities with regard to the land issues. We handed this (Exhibit F) out to you, where we were demonstrating out at Palomino Valley and where the officer from the BLM (Bureau of Land Management) became very excited as Kenny Greenwell moved his lunch box and his coat and his holstered pistol from the front of his truck into the back in order to be able to get out of the cold, and this overzealous BLM official told him to get on the ground. He did not do that; this was a standoff that could have proved harmful. There could have been a dead body involved in this; thank goodness there wasn’t. We were simply peacefully demonstrating out at Palomino Valley with signs and so forth, trying to express our concerns about the illegal auction of Ben Colvin’s cattle.
Previous to that, we had been at the auction yard in Fallon, and they were trying to hold an auction to sell these cattle. As they were doing it, we kept yelling every time they would try, “Don’t buy stolen cattle.” The cattle auction failed because no one was willing, with us there watching them, to participate in buying stolen cattle. Certainly, we were engaging in free speech, but it did result in intimidation. Ultimately, the BLM decided they needed to just take bids by fax and e-mail so that no one had to show up. They tried to limit, by putting a sign up [that read] “Demonstration Area,” where we could stand. So our concerns extend to this in terms of disrupting, affecting, or influencing the conduct or policy of a government entity by intimidation, because we think that free speech and legitimate free speech activities don’t even cross the line into civil disobedience. There may be an important time that civil disobedience is necessary, but that these could be by overzealous people in the government, particularly the federal government, used against us to deny us our free speech. So your careful consideration of these will be greatly appreciated and your careful determination of the definition of terrorism will have wide-ranging impact.
I might just mention one thing. The federal definition of terrorism that comes forth in the Patriot Act—there was less than 24 hours’ time from when the federal government put that bill forward. Most of the congressmen never even read it, and they had no hearings. So your careful consideration is very important on this issue, and I hope you won’t be in the same situation of—you won’t be, you have already shown that—of voting on something you haven’t even read as far-reaching and significant as that legislation. Thank you, Mr. Chairman.
Lynn Chapman, Vice President, Nevada Eagle Forum:
[Introduced herself] I just wanted to reiterate that we are concerned about the definition. Janine [Hansen] keeps taking me to all these fun and exciting activities, but it is our right to do these things, although my husband would rather I didn’t, I think, sometimes. But look this over and carefully take some words out and move things around; I am really very concerned because I don’t want to end up in jail for something like a terrorist when I am not trying to be a terrorist. I am just trying to be a good American citizen. Thank you.
Chairman Anderson:
My spouse often asks me the very same question about various things that I ask her to come to with me, so I can clearly understand. Ms. Hansen, I think the big burning question is, how is there a body involved in any of these activities? That seems to really be the reason why we are on this particular bill, and I obviously know your reputation that precedes you wherever you go, either in this state or any other state. I think that you obviously have stood for these issues for a long, long period of time, very admirably, I believe. We appreciate your zealousness in facing these issues, but in this particular instance, how do you perceive that your group would fall into the category in terms of a body?
Janine Hansen:
Mr. Chairman, thank you very much for that question because we do support the intent of this bill with regards to applying it only to terrorist acts that would have a body, and that does not apply to us. And, certainly, the narrow focus of this bill is very admirable. I think it is much better than the way the Senate bill is and we support that. My only concern is that if a definition of terrorism is placed in one portion of the law, then they may use that same definition of terrorism in other areas which would have broader application, but this narrow application we do not oppose; we support that.
Chairman Anderson:
[Are there ] questions for Ms. Hansen or Ms. Chapman? Thank you very much. Dr. Siegel, I see you brought your counsel with you.
James Jackson, representing the American Civil Liberties Union of Nevada and Nevada Attorneys for Criminal Justice:
Mr. Chairman, thank you and good morning. My name is James Jackson and I am here on behalf of the Nevada ACLU. With me is Dr. Richard Siegel, the President of Nevada ACLU. I am also here on behalf of the Nevada Attorneys for Criminal Justice.
This is the second time in a week that Ms. Hansen and I have been on the same side, and I suppose we should alert the media as to that. I think that one of the things Ms. Hansen said that I would echo is that some sparks flew because of S.B. 38 because that bill is much, much more broad; it is modeled much more closely after the federal law. We can certainly debate for hours, if not days, as to the process, if you will, of how that particular federal law came into effect. Certainly, one of the things that never happened on that bill was a lot of discourse and debate as to what the intent of that bill was. That was the tone and tenor of most of my comments last week, and again, yesterday, that in dealing with these issues it is abundantly important, if not paramount, that the clear intent of what these laws are to go to is made very obvious on the record.
One of the things that I would also point out, though many arguments that have been presented by myself and Dr. Siegel and others, not necessarily in contravention to these proposals but at least in terms of the concerns that we have as to individual’s constitutional rights and individual liberties, is that none of the concepts that have been passed and adopted and placed into effect in the federal law have been challenged in any manner, shape, way, or form in any court in this land. There have been some trials that have occurred, but there have been no appeals and legal challenges to date, that I am aware of, to test the constitutionality of some of the aspects of those laws.
I think what Mr. Carpenter said here today is absolutely the important consideration for this Committee, or any other committee in any other part of this legislative body, including the body as a whole, as we move forward with consideration of these terrorism bills. We have to go forward very carefully so that we do only what is intended, and that is to get at the root of the evil and not to create a situation where an individual, such as Janine Hansen and those who act and behave and do things as she does, as is her constitutional right to do so, is not taken in by overzealousness or somebody whose political or philosophical views are different.
It has been heartening to hear in the testimony on S.B. 38 from Metro and from a various number of prosecutorial agencies, including the Attorney General’s Office, and representations by the Clark County District Attorney’s Office, that these bills, as a whole, are intended to get at terrorism and nothing more than that. I thank them for that and I hope that that intent will carry forward to each and every other prosecutorial agency that might ever, God forbid, be forced to face these issues.
With that I will turn it over to the real expert on these matters, Dr. Siegel. If there are any questions I can take them either now or later, whatever you wish.
Dr. Richard Siegel, President, American Civil Liberties Union of Nevada:
[Introduced himself] First of all I want to reiterate two points that were made. One is that this is the narrowest of the bills we have seen so far. We are working on three antiterrorist bills, S.B. 38, S.B. 82, and this one. If there is going to be a terrorist act we think that this is the one we think would be the soundest in terms of working through the problems we have raised; I think this is the one that is on the best track. I also would like to thank Mr. Brown for responding to the kinds of concerns already that we had in Section 3 (Exhibit G); that saves us a lot of time this morning for me not to have to go through the kinds of issues you have already heard.
I want to see the amended bill in its next iteration and review what we have left and continue that discussion. This Committee is the most interesting committee I have worked with in a very long time. It feels like a graduate seminar, and we are all struggling and working towards excellent goals, and I look forward to what Mr. Brown said of really doing a little intellectual gamesmanship and coming up with the best answer for Section 3. I think that would be a great idea.
I do want to say a couple of things. One is that the existing aggravator, the one that refers to killing more than one person and aiding and abetting and so on, already covers everything that we honestly want to do. Any case that we could have, including September 11, those people could have been brought up in Nevada if it happened on that aggravator and I think almost certainly they would have been sentenced to a death penalty on first-degree murder on that aggravator. As such, I think to some degree we are working at a symbolic level. This is not something that absolutely requires us to have this additional aggravator, but I have a feeling we are going to want to do that and do it narrowly.
Finally, the point about the dead body, I want to respond to the Chairman on that point about the dead body and the First Amendment rights. Yes, we have to have a dead body, but dead bodies happen; as Ms. Buckley said, in civil rights, in antiwar protests, people do sometimes die in the context of public demonstrations, and of course we can raise questions about intent, but if somebody does die, some prosecutor can connect it to First Amendment activity that we would not want them to do. Our own experience is that the First Amendment is poorly understood by many people in law enforcement. I think the best people in law enforcement appreciate that it is a problem of training and so on, at times. So we are still concerned and we will be working with Mr. Brown and with the Committee on the narrowest definition of terrorism. Thank you.
Chairman Anderson:
I am sure Lord Boycott would have appreciated the Irish and their longstanding tradition and would have probably looked on their act of withholding services an act of terrorism itself. [Are there] questions for Dr. Siegel or Mr. Jackson? Okay, thank you very much. Now we move to the neutral parties.
Ben Graham, Nevada District Attorney’s Association:
Mr. Chairman, members of the Committee, Lt. Olsen asked me to lend the support of the Sheriffs and Chiefs to this matter as well.
It really marvels me, as I sit here this morning and listen to this and the discourse we have had over the years. I wrote down sometime back a real, full-blown, upper-division, ten-hour course that we are getting in the death penalty and the various aggravators. It does not seem appropriate, but every now and then we hear that we are going down those bunny trails and that is really not appropriate for a death penalty case, but that is what we did here; we went down a lot of trails to discuss what terrorism is. It has always amazed me too that garden-type killings are just okay, not okay, but they don’t lend themselves to a death penalty. I think what we have here is another growth from Ms. Hansen’s position that the woman’s place was in the home, now the woman’s place is on the picket line, which is quite a progression, I think.
We, too, are working carefully as we can to try to come up with a very narrow scope here. The only one reason that I think may be that aggravator is needed so far is, we are talking about a terrorist act that kills one or more than one, or threatens more than one, and I think there possibly could be a scenario where that would not be the case, so this particular aggravator could apply. Keep in mind as you go through the aggravators over the next couple of months that most of these aggravators came from within the body, as opposed to outside agencies and sources, an interesting approach, an interesting program for us over the next several months.
Just one other thing, Mr. Chairman, my experience in this
area goes back to the Viet Nam era where I had the privilege of working for one
of the greatest
liberals in my mind and many minds that one of the two that voted against the
Gulf of Tonkin Resolution, and many years later was probably proven to be
correct.
Chairman Anderson:
I guess I am mindful of the fact that during the Viet Nam era it was not unusual for ROTC departments to be bombed and blown up on most university campuses throughout the United States, so an act of terrorism is kind of a difficult thing to see. When you recognize that we have some pretty strong statutes and most states already deal with the internal kinds of problems, I am hopeful that we are going to be able to do something with this particular piece of legislation and see if, with one of them, we can work out a good, clean definition so that we don’t feel that we have done the impossible. Since I am not a big fan of the death penalty, it makes it a real difficult scenario for me, personally.
Benjamin Blinn, Citizen, Carson City, Nevada:
[Introduced himself] I would like to add I am in support of Mr. Brown’s bill, although I do not agree with you that the death penalty is the severest penalty. I won’t go into that, but the points, Mr. Brown, some of those we have discussed privately, I would like you to take in detail to the Committee.
If I read Section 3 correctly, under line (c), it says we underline the words “a civil unrest” and then on the next line, “impairment or disruption of,” and the next line—because there are commas between them, we are picking these out—transportation services, and then to comment, historically, we did not bring up Rosie in the back of the bus, and that was transportation; that was civil disobedience in the sense it upset the South, and the disruption of transportation and services of the sit-ins, but we didn’t have a body. We could have that day if Rosie didn’t have the courage of her convictions. There were people who would have obliged her as we found out later when the four social workers, and the ones who went down there to demonstrate, and like Kent State, they wound up lynched or killed or whatever was done to them, and we don’t have any records that show any lynchings, which were acts of terror against the Americans of African descent, and I believe that the KKK and those that hid behind their white hoods. . .you know, some people don’t call that “peaceful demonstration” that killed Dr. Martin Luther King—we had a body, they don’t want to take off the holiday in his name, so they call it James Earl Ray Day, in that they politically have a different view to this day of their prejudice, and we as teachers have to teach both sides of the issue.
But the one thing that I like about the terrorism [bill] and why I would support death in this situation, is in the wise scriptures, which we study it says there is a time to kill. By demonstration we saw the prophet of God, Samuel, slice up the leader of the opposing nation with a sword and that is a body; I certainly would not want to kill the first prophet of Israel. Then also we have General Sisera who was fleeing the army and he went to the lady’s tent, Deborah, I think was her name, and he asked for a drink of water and was needing water, and she said, “Come right in here,” and she served him warm milk. His head in her lap, she put a spike through his temple. So, was that an act of terror?
There are some questions on a death, on a time to kill. I believe in any undeclared war, or war against our flag, Americans or whatever ethnicity or religion you are, I don’t care, I think we all protect one another in that. Narrowing this demonstration, I don’t like the civil unrest being an excuse for the military to drop the peaceful demonstration like the people at Kent University. I remember those times. I remember when Kennedy got assassinated; I might not have been with all his political persuasion or ethical persuasion or viewpoints, but he’s still the President and we are all behind him. You won’t be knocking off the main man in charge of our government. That’s another time to kill, in my opinion.
I don’t consider the transportation being disrupted in the services because I didn’t get my strawberries because the truckers decided to block the bay and rot the bananas in the harbor out there, that type of civil disobedience to destruct; the union boys were getting it down and we deserve a right to a living wage. So those civil disobedient acts, that is, transportation truckers are also Americans of many different political persuasions, but that’s civil disobedience.
So in defining your civil unrest, and for those reasons I would support the bill and say you have to clear this up on the bus and the counters and the transportation. Thank you.
Chairman Anderson:
Is there anybody else who would like to speak to the A.B. 99?
We close the hearing on A.B. 99. The Chair’s intent here is quite clear, we have a couple of more bills coming on this particular issue. Additionally, I think we need to do a considerable amount of crafting relative to some suggestions, both from the bill drafters and from Research, and I have a couple of questions that I have raised that I want to make sure I am comfortable with.
I would suggest that if you have questions that you raise
them so that you can get comfortable with the topic, and so that Dr. Siegel
will feel that the
“graduate seminar” is moving at the proper pace; I wouldn’t want to destroy the
vision of one of my teachers. With
that, [are there] any other issues to come before the Committee?
[Chairman Anderson adjourned the meeting at 10:04 a.m.]
RESPECTFULLY SUBMITTED:
Sabina Bye
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: