MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
February 19, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:00 a.m., on Wednesday, February 19, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark E. Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Terry Care
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
GUEST LEGISLATORS PRESENT:
Senator William J. Raggio, Washoe Senatorial District No. 3
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Jo Greenslate, Committee Secretary
OTHERS PRESENT:
Stan Olsen, Lieutenant, Lobbyist, Las Vegas Metropolitan Police Department and Nevada Sheriff’s & Chief’s Association South
Robert E. Roshak, Sergeant, Lobbyist, Las Vegas Metropolitan Police Department and Nevada Sheriff’s & Chief’s Association South
Geoffrey Crump, Legislative Intern, University of Nevada, Reno
Alfredo Alonso, Lobbyist, Lionel Sawyer & Collins and Nevada Resort Association
Lucille Lusk, Lobbyist, Nevada Concerned Citizens
Kathy Bartosz, Grants and Program Analyst, State of Nevada Juvenile Justice Commission, Department of Human Resources
Mary Lau, Lobbyist, Retail Association of Nevada
Laurel A. Stadler, Lobbyist, MADD – Lyon County Chapter
Janine Hansen, Lobbyist, Nevada Eagle Forum
James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice
Ben Graham, Lobbyist, Clark County District Attorney and Nevada District Attorneys’ Association/Las Vegas
Chairman Amodei:
We will start the meeting with Senate Bill (S.B.) 91.
SENATE BILL 91: Removes element of knowledge from crime of selling, giving or furnishing alcoholic beverage to person under 21 years of age. (BDR 15-319)
Stan Olsen, Lieutenant, Lobbyist, Las Vegas Metropolitan Police Department & Nevada Sheriff’s & Chief’s Association South:
Senate Bill 91 is brought forward to correct problems that came up through the Nevada Supreme Court in enforcement of sting operations performed throughout the State by law enforcement to prevent underage drinking. With me is Sergeant Bob Roshak, who will give you the details.
Robert E. Roshak, Sergeant, Lobbyist, Las Vegas Metropolitan Police Department and Nevada Sheriff’s & Chief’s Association South:
This bill is being presented to you based on a legal opinion due to a Nevada Supreme Court decision wherein charges for selling alcohol to minors were dismissed because of the word “knowingly” in the current statute. We are asking for removal of the word “knowingly” and the addition of a clause stating if a salesperson was presented identification from a legal city or county entity and it was proven to be false, the person selling the alcoholic beverage could not be charged.
Senator Care:
We have an amendment coming on this, correct?
Chairman Amodei:
There should be an amendment in your packet that was provided earlier in the week (Exhibit C).
Senator Care:
What this does is get rid of the idea of mistake of fact, correct? In some cases in the law, the fact that you did not know is no excuse. There would be a duty imposed here. With the removal of “knowingly,” and the amendment I have seen, a statutory duty is being established, and it is all right to ask for identification.
Sergeant Roshak:
That is what we are asking for, and we are trying to add a clause to the effect, if the identification was not correct, the seller would not be prosecuted.
Senator Care:
I know we have a statute that says it is not negligence, per se, if you violate the law and sell alcohol to somebody who then goes out and has a traffic accident. However, I am wondering if somebody sells alcohol to a minor, with existence of the statute I am referring to, and that minor then kills somebody in a car accident, whether the clerk or storeowner would then be liable on a theory of negligence.
Lieutenant Olsen:
We will talk to Ben Graham to get an answer to that question.
Chairman Amodei:
Mr. Wilkinson, there was a reference to a Supreme Court case regarding this issue. Could we get a copy of the case for our work session on this bill? It is my understanding there is a little more work needed on the amendment in terms of the administrative and criminal aspects. Therefore, we will plan to work session this next week.
Sergeant Roshak:
Chairman Amodei, for your information, the Nevada Supreme Court case was titled Garcia v. District Court, dated September 2001.
Senator Nolan:
By way of introduction, sitting at the table is my intern, Geoffrey Crump, with the UNR Legislative Internship Program. Part of the intern’s assignment is to track some bills and provide testimony on them. Geoff actually has some practical experience in this matter, and selected this bill on which to testify.
Geoffrey Crump, Legislative Intern, University of Nevada, Reno:
I am currently an undergraduate at the University of Nevada, Reno, and am here to testify on S.B. 91, concerning the sale of alcohol to minors. Originally, I was going to testify against S.B. 91 due to the wording of Nevada Revised Statutes (NRS) 202.055. Now I would like to stress the importance of the amendment. For the past 4 years I have been working my way through college as a clerk at a major grocery store chain. With the quality of fake identifications, I could not always tell if they had been altered, and there is not much more a clerk can do than check identification and make sure the information matches the person. Since this is addressed by the amendment, I support the bill with the amendment. In a situation where a clerk unknowingly sells alcohol to an underage person, the clerk is usually automatically terminated and fined. Many clerks in large grocery store chains are college students or working mothers, who cannot afford to lose their jobs for something that was not their fault. That is why I urge the committee to pass S.B. 91 as amended.
Alfredo Alonso, Lobbyist, Lionel Sawyer & Collins and Nevada Resort Association:
I just want to add for the record, we have had discussions with Lieutenant Olsen with respect to his amendment. It needs a little work. We are going to work on it and try to come up with something acceptable to the committee within the next couple of days.
Senator Care:
Mr. Alonso, you were in the room when I raised the issue about liability if we remove the word “knowingly.” Did that come up in your discussions? I know it cannot be negligence per se, because there is a statutory prohibition, but nonetheless, I think it could still be argued it is negligence if the word “knowingly” were removed and the clerk made no effort to determine the age of the buyer of alcohol.
Mr. Alonso:
Our position is it appears to impose strict liability on any sale. Sometimes our properties do things a little differently, due to an emphasis on security, regarding employees who check identification. We have some issues with S.B. 91. One issue is the “administrative” versus “criminal” aspect of the bill language. We will address that and provide you with more information regarding this issue.
Lucille Lusk, Lobbyist, Nevada Concerned Citizens:
We have some concerns with S.B. 91 that are not fully resolved by the amendment. As Mr. Alonso has stated, the amendment itself needs work. If I could direct your attention to the fact this bill says, “sells, gives, or otherwise furnishes an alcoholic beverage to any person under 21 years of age.” When you remove “knowingly,” and do not replace it with something else such as, “knew or should have known,” you create a situation where not only is the store clerk strictly liable, but the host of a big reception at which somebody spikes the punch would have a strict liability too. It seems the real intent here is to require those who sell liquor to card everyone. That requirement would provide a more easily understood law in which clerks would know exactly what was expected of them and when they were in violation. Government sting operations certainly have their place and their value. When they are utilized, however, individuals sent in should not be made to look older. They should be people the clerk would clearly be able to tell, with reasonable judgment, were minors. I encourage you to look carefully at the referenced supreme court decision to see why the court made its decision.
Kathy Bartosz, Grants and Program Analyst, State of Nevada Juvenile Justice Commission, Department of Human Resources:
I work with the juvenile justice program’s office and oversee enforcement of the underage drinking laws project for the State. First, I would like to say when this project began in 1999, the State’s compliance rates for selling alcohol to minors were at a dismal 48 percent. Within 6 months of aggressive action by law enforcement agencies and by businesses stepping up to the plate and dealing with this issue, Nevada’s compliance rates rose to over 70 percent consistently around the State. In those jurisdictions where they are continuing aggressive action, compliance rates are now over 90 percent. I am happy to report Nevada is one of the top two states in terms of aggressively dealing with underage drinking, and is considered a model state. Regarding Garcia v. District Court, two things happened when the decision came out, one good and one bad. The good thing was many local law enforcement agencies took a look at their own ordinances and strengthened them by adding strict liability and withdrawing the “knowingly” clause. Henderson, Clark County, City of Las Vegas, Reno, Douglas County, most of the larger areas, have gone to a strict liability model.
The other thing that happened was not as good, many jurisdictions looked at the Nevada Supreme Court decision and interpreted the “knowingly” clause to mean a 15-year-old could try to purchase alcohol, and if it was obvious the individual was 15 years old, but the clerk did not ask to see his identification and sold alcohol to the him, the clerk would not be in violation. This bill still allows for constructive knowledge, but unfortunately, many local prosecutors did not take that into consideration. Several local jurisdictions are now not enforcing compliance checks due to their interpretation of the court decision. They are waiting for this to be resolved or until they change local ordinances. I encourage you to incorporate this amendment to add strict liability. Again, I think our businesses and law enforcement have done a tremendous job increasing compliance rates, and I encourage you to support them.
Mary Lau, Lobbyist, Retail Association of Nevada:
I do not wish to be redundant on the testimony, and would just like to say we will continue working on the amendment with the Sheriff’s and Chief’s Association. I have concerns with some of the language such as, “defendant licensee,” and believe it is probably legalese I do not understand. We have been able to work with Kathy Bartosz and her organization occasionally and were pleased with the direction of alcohol sales to minors and other related issues. We support anything that could improve that trend.
Laurel A. Stadler, Lobbyist, Mothers Against Drunk Driving (MADD) – Lyon County Chapter:
I am here today in support of S.B. 91. Alcohol is the drug of choice for our young people, and it is a terrible problem in Nevada and across the nation. We support making sellers more responsible for providing alcohol to minors. As a layperson, I would have thought “knowingly” means you card the person, and if the person is under 21 and you sell to him or her, you are in violation. Obviously that is not the legal interpretation. We definitely support whatever will tighten up this area of law and make sellers responsible.
Chairman Amodei:
We will close the hearing on S.B. 91. Mr. Wilkinson and Mr. Anthony, I would like you to meet with the individuals who testified here today by the end of the week and see if we can reach a consensus on an amendment and report back to the committee at our Monday meeting. For those of you who have concerns and want to work on the amendment, please make yourself available to Mr. Wilkinson or Mr. Anthony to keep this process moving.
We will open the hearing on S.B. 38.
SENATE BILL 38: Makes various changes regarding certain acts relating to terrorism, weapons of mass destruction, biological agents, chemical agents, radioactive agents and other lethal agents, toxins and delivery systems. (BDR 15-89)
Senator William J. Raggio, Washoe Senatorial District No. 3:
I have asked your secretary to distribute a detailed explanation of S.B. 38 (Exhibit D). Following the events of September 11, 2001, the catastrophic destruction of the World Trade Center, the Pentagon damage, and the crash in Pennsylvania, as well as subsequent events, such as the anthrax scare, it became readily apparent to me that both federal and state laws were inadequate to cope with this kind of situation. As a result, I asked the Legal Division of the Legislative Counsel Bureau to examine our laws and determine what would be essential and necessary to cope with a similar situation occurring within Nevada’s jurisdiction. I also asked them to continue monitoring the efforts of both Congress and other states in the process of enacting legislation to deal with acts of terrorism. As a result, you have before you S.B. 38, which has been cosponsored by almost all Nevada Senators. I believe it essential to have this change in our law for future purposes. We believed we were removed from the potential damage, but I am going to quote from a few articles published in this State following those catastrophic events. An article in the Las Vegas Review-Journal dated September 16, 2001, stated:
Experts on terrorism believe that though Las Vegas probably doesn’t present as inviting a target for terrorists as commercial or political centers, such as New York or Washington, its visibility as an international tourist destination makes it more vulnerable than other cities of comparable size.
The same could be said of the Reno and Tahoe areas. Las Vegas, and I am quoting from Frank McGuire, who is an expert on aviation security and lectures at the FBI (Federal Bureau of Investigation) National Academy, indicated, “Las Vegas is a symbol of capitalist recreation.” I am sure you also noted articles and commentary about some of the more potential targets for terrorism in our country, and one was Hoover Dam.
In another article, of December 5, 2002, Clark County’s new sheriff warned that terrorists could ruin a community. One of the quotes was, “Las Vegas’s gaming industry is extremely vulnerable to possible terrorist attack.” That was a message directed to a group of casino security officials. At the time, two terrorist alerts mentioned Las Vegas as a possible target and led to a substantial number of canceled reservations. We cannot sit back and say we are relatively secure. Like every other state in the nation, we should be prepared, not only as individuals, but as families and as communities, to deal with potential terrorist attacks. We must also be prepared to deal with a potential threat in other ways. Certainly we must ensure the laws of Nevada are up-to-date and appropriate.
One of the first questions I asked was why we need State laws when we have federal laws. The answer I got, particularly from law enforcement personnel, was this kind of situation requires an immediate response, which is sometimes not available from federal authorities. We need to give law enforcement and other relevant State personnel the legal tools necessary to cope with terrorist situations.
In the interest of time, let me go through the bill. Senate Bill 38 defines new crimes and provides sentence enhancements and additional penalties, for knowingly committing crimes of terrorism, soliciting or providing support for an act of terrorism, making terrorist threats, and hindering the prosecution of terrorism. That is in sections 1, 3, 4, 14, 15, 16, and 22 of S.B. 38. Additionally, section 22 of the bill adds criminal penalties for knowingly committing an act causing another individual to believe he or she has been exposed to a harmful biological substance or device. At one point, a lot of people thought it was amusing or funny to perpetrate hoaxes. This is a clear deterrent. Sections 20 and 21 criminalize the manufacture, possession, storage, transportation, delivery, or acquisition of certain weapons of mass destruction. Included are biological agents, chemical agents, radioactive agents, and other lethal agents, toxins, and delivery systems for use as weapons.
Let me remind the committee we are only in session every other year. When I last counted, at least 33 other states had recently passed antiterrorism legislation using definitions not presently included in Nevada law, but which need inclusion, such as, “act of terrorism.” This definition is similar to federal law and to the definition now contained in S.B. 38. Section 6 defines an act of terrorism substantially the same as it is defined in federal law: an act of undeclared war or any act that involves the use of threatened or attempted use of sabotage, fear or violence intending to intimidate or coerce a civilian population to disrupt, affect, or influence the conduct or policy of a governmental entity by intimidation, coercion or retaliation against a governmental entity or causing widespread panic or civil unrest through substantial destruction, contamination, impairment or disruption of either the public infrastructure or natural resources of the environment. I think that tracks federal law. It was certainly well thought out. I looked at each of these, and asked myself if there was anything here that was going to alarm people. Are some civil rights going to be involved or impeded? I am convinced this language is essential.
I will not go through every section of the bill in detail, but will go over some of them. Section 1 provides an additional penalty for felonies committed while attempting to commit certain acts of terrorism. A number of states have included this provision. We have included in S.B. 38 what we considered the most effective provisions from those enacted by other states. At least four states have enhanced penalties in this situation. The provisions of section 1 of S.B. 38, when read with the definition of an act of terrorism, covers all threats without having to create separate offenses for each. If a prosecution proves a person committed an act which resulted in contaminating the water supply of a city with the intent to cause widespread panic or civil unrest through the substantial contamination of natural resources or the environment, that person can be prosecuted, convicted, and sentenced for committing the offense with the intent to commit an act of terrorism. That person then, because of this bill, would receive harsher penalties than otherwise.
Section 3 of the bill revises existing law to provide that murder committed with the intent to commit, cause, aid or further conceal an act of terrorism is murder in the first degree. At least 14 other states have enacted similar legislation. Section 4 is a provision that murder committed with the intent to commit an act of terrorism is an aggravating circumstance for the purpose of determining the death penalty in any case of this kind. I know this committee is dealing with statutes and other bills regarding both aggravating and mitigating circumstances. This would be included as aggravated circumstances, and I certainly commend that to you. Section 14 creates the crime of terrorism, and makes it a category A felony requiring restitution of victims. A number of other states, Alabama, Arizona, Connecticut, Iowa, Louisiana, Maine, and Michigan, have enacted specific legislation to create the crime of terrorism and providing penalties, not only for committing it, but also for providing material support for acts of terrorism. I might indicate subsection 1 also prohibits a person from providing material support with the intent such material support be used in whole or in part to commit, cause, aid, further, or conceal an act of terrorism or to aid a terrorist.
Section 9 of the bill is based on a New York and Michigan definition of material support of resources. Section 15 of S.B. 38 prohibits a person from knowingly hindering, delaying, or obstructing the prosecution of a terrorist, and makes such actions a category B felony. A number of states including Michigan and Arizona have also enacted legislation to prohibit such acts. Section 20 provides a person shall not knowingly develop, produce, stockpile, or transfer a biological agent, toxin, or delivery system. Those acts become category A felonies. Section 20 also amends the section now in place to expand its scope to also prohibit certain acts involving weapons of mass destruction, chemical agents, radioactive agents, or lethal agents. At least eight states have enacted legislation relating to weapons of mass destruction.
Section 21 is a section prohibiting threats, false information, and hoaxes concerning acts of terrorism. It pertains to such threats as anthrax or any kind of chemical or biological weapon, and it is a category B felony. I think we have to deal effectively with people who give out false information or perpetrate a hoax. Section 22 of the bill provides that for violation of S.B. 38, a person may be prosecuted, convicted, or sentenced pursuant to statutes that prohibit racketeering, tying it to the racketeering statute. Actually, this is added to provide another avenue to prosecute an organized group that violates S.B. 38. Section 23 provides a child must be prosecuted as an adult for committing an offense or attempting an offense with intent to commit, cause, aid, or conceal an act of terrorism. There was a recent situation throughout the country, and particularly in the Washington, D.C., area, where a minor was engaged in activity akin to causing panic, civil unrest, and mass destruction.
For violation of S.B. 38, there is no statute of limitations, and prosecution may be commenced at any time. Section 25 of the bill pertains to forfeiture of properties used during an attempt to commit an act of terrorism.
I hope this brief overview sufficiently explains the purpose and detail of the bill. I would be happy to address specific questions. I believe we ought to pass this bill promptly and go on record showing we have done everything we can to ensure necessary legal tools are in place to cope with this type of situation.
Senator Care:
The first day this committee met we had a briefing from the Governor’s homeland security advisor and discussed what constitutes an act of terrorism. I recollected that Timothy McVeigh’s actions were referred to as a criminal act. The way I read the bill, it has nothing to do with a foreign element or Al Qaeda or anything of that nature. It can include a domestic act of anarchy; it does not have to be politically motivated. What Timothy McVeigh did was an act of terrorism.
Senator Raggio:
The definition in section 6 speaks for itself, and this tracks Federal law. If needed, we can add something. I was not looking at that kind of situation, but it is certainly relevant.
Senator Care:
In section 14, regarding “conspiring with another person to commit,” my question is, what if the act conspired never happens? The way I read this, it is still a category A felony; the act itself does not have to be committed.
Senator Raggio:
You understand, as a lawyer, a person can be convicted of conspiracy even though the act does not happen, and I think that is essential.
Lieutenant Olsen:
We strongly support this legislation. Senator Raggio is exactly right; Nevada is woefully lacking in laws to deal with terrorism, as most states found out after September 11, 2001. The media has talked about the Al Qaeda notebook, portions of which I have seen, and Nevada is an excellent target based on Al Qaeda’s criteria. We also urge you to pass this quickly to give law enforcement tools it needs to act if and when something occurs. Regarding section 14, dealing with conspiracy, it is important to catch conspirators before they act. Conspiracy is critical to this bill. We stand 100 percent behind S.B. 38.
Chairman Amodei:
Lieutenant Olsen, we are going to work session this bill soon. We would like to have prosecutorial representatives on the record. Would you ask Mr. Graham to contact appropriate individuals in Attorney General Sandoval’s office, and let them know we would appreciate having their thoughts on the record for the work session to be held within the next 10 days? We would appreciate Mr. Bussel’s comments also.
Lieutenant Olsen:
Yes, Senator, I will.
Janine Hansen, Lobbyist, Nevada Eagle Forum:
I am the State president of the Nevada Eagle Forum. With me is our vice president, Lynn Chapman. We appreciate this legislation does not jeopardize our Fourth Amendment rights, as does federal legislation. One of the things I would like to bring to your attention for clarification is an issue under the definition of terrorism. I do not bring this forward lightly; I know this is a serious issue, with which we are all concerned. A couple of personal experiences cause me additional concern. Under section 6, in the definition of the act of terrorism, subsection 1 says, “any act of undeclared war.” When we go to war with Iraq, it will be an undeclared war. I am wondering if that definition might cause concern because the United States Congress has not yet declared war with Iraq.
Secondly, in subsection 2 it says, “Any act that involves the use or the threatened or attempted use of sabotage, fear, or violence, and is intended to,” and if we drop down to paragraph (b), it says, “Disrupt, affect or influence the conduct or policy of a governmental entity by intimidation or coercion.” Fear is certainly something that is difficult to measure, and what does it mean by intimidation or coercion? I just want to make sure these circumstances would not be identified under the definition of treason and of terrorism. During the last couple of years, I have had experiences with the government that have caused me concern. Two years ago, Ms. Chapman and I were at the Department of Motor Vehicles (DMV) legally petitioning. While in front of the DMV, we were approached by security personnel and were told we could not be there without permission. We said we had permission under the Constitution of the United States of America and the Constitution of the State of Nevada for free speech and the right to petition. Security then summoned managers from inside the DMV to tell us we had to have permission, and if we did not have permission, they were going to call the police. We told them again that we had permission. Security then sent plainclothes policemen to tell us we were going to be arrested if we did not stop, and that we did not have permission. We again told them we had permission provided by the Constitution of the United States of America and the Constitution of the State of Nevada. They then brought the paddy wagon and a uniformed policeman to tell us that we were in violation of their rules, and I told them the same thing. I said, “Officer, I would like to have your name, because when you arrest me, I am going to sue you for violating my civil rights.” I waited 2½ hours and finally said, “If you are not going to arrest me, I am cold and hungry, and I am going home.”
It was interesting because we had several discussions about this event during the last session of the Legislature in the Assembly. An unusual experience for us was that the Reno Gazette-Journal published an editorial and an article supporting us. It was unusual for the newspaper and the American Civil Liberties Union (ACLU) to support me. Nevertheless, this concerned me because government bureaucrats believed I was violating the law when I was exercising free speech. Lynn and I were threatened with arrest a couple of times, but that time was the most dramatic. I am concerned that S.B. 38 not be construed to in any way violate our free speech and petition rights.
The Constitution of the State of Nevada is even stronger than the federal constitution. In Article 1, section 9, of the Constitution of the State of Nevada, it says every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. Material support is mentioned in S.B. 38, which includes oral, written, or electronic communications. I want to ensure the free speech issue is not jeopardized by S.B. 38. Certainly I am in favor of protecting us from terrorism, but I also feel dissent and free speech are very important issues. I handed all of you a copy of a flyer (Exhibit E). This depicts another demonstration in which I participated at the Bureau of Land Management (BLM) facility in Palomino Valley. Ms. Chapman was there with me. At that point in time, Kenny Greenwell, who is pictured in the flag hat on the flyer, was removing things from the front of his truck and putting them into the back to make room for people to sit inside his truck. He was removing his coat and lunch, and he had a holstered pistol with him. He moved those into the back of his truck. After he set them down, an agent from the BLM drew a gun on him and told him to get on the ground. Kenny had been peacefully demonstrating and carrying signs, and the BLM agent screamed at him to get on the ground. Kenny, with presence of mind, said, “No, I won’t,” and finally the situation was diffused as other people became involved. Kenny filed an assault charge with the Washoe County Sheriff’s Office. Because of the overwhelming influence of the federal government, the Sheriff’s Department dropped it.
Once again, we are concerned about officials’ reactions to a demonstration against the government, which was perfectly legal. They had cordoned off a specific area with a sign indicating it was the demonstration area. We were not inside; we were outside the compound. I personally was offended they told us we could not be outside the compound, but had to be inside the designated demonstration area. They have tried to do this in town at the BLM office, as well, to jeopardize our free speech. I suspect the agent who drew his gun on our peaceful demonstrator might have believed, as identified in the definition of terrorism in S.B. 38, there was fear and violence involved, and it might disrupt or influence the conduct or policy of the government, because we were certainly trying to influence the conduct and policy of government. The purpose of the demonstration was to expose what we believed to be wrongful confiscation of cattle by the BLM. We are here today to say we are concerned about ensuring dissent and free speech are fully protected and are not jeopardized by S.B. 38.
Senator Care:
Ms. Hansen, I think we all have the same concerns, which is why we need to hear from the prosecutors. Section 15 of the bill talks about hindering or delaying prosecution. I know any number of competent defense counsel who know how to hinder or delay a prosecution, but I do not think that would be an act of terrorism.
Senator Washington:
In section 6 of the bill, which contains the definition of an act of terrorism, I had a concern regarding the act of an undeclared war, and you made a comment about that. Could you elaborate on your definition of an undeclared war?
Ms. Hansen:
Article 1, Section 8, of the Constitution of the United States of America requires the United States Congress to declare war, just as it did in World War II. In the current situation, Congress did not officially declare war. It gave President Bush certain powers to pursue a police action similar to that in Korea or Vietnam, neither of which was declared war. That is why I say even the government could be committing an act of terrorism as defined in section 6 of S.B. 38. It is a technicality, apparently, that Congress did not want or need to declare war, but the Constitution requires Congress to specifically declare war.
Senator Washington:
Based on the premise of Senator Care’s question, my concern is regarding Timothy McVeigh and the Oklahoma bombing, the act of terrorism perpetrated in New York, on the Pentagon, and the potential in Pennsylvania, were not declared wars but were acts of terrorism. I do not see why war must be declared to define terrorism.
Ms. Hansen:
I do not know that war need be declared, but this says any act of an undeclared war. Our action in the Gulf, our action in Iraq is undeclared war. Does it fall under S.B. 38? We are stretching the definitions here. I do not believe there must be a declared war in order to have an act of terrorism. I agree with you. I believe terrorism can exist where war was officially declared or undeclared. Perhaps the definition of an act of terrorism should apply to a declared war. Certainly there were acts of terrorism attempted during the Nazi regime, and that was a declared war. Perhaps “declared” or “undeclared” is not the issue here. Perhaps the definition of an act of terrorism should apply to both.
James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice:
There is not a lot more that I can add to Ms. Hansen’s comments. On behalf of my client, the concern is that use of this type of law be narrowly defined and narrowly applied. Mr. Olsen and I have had a number of conversations about S.B. 38 in which he has assured me this bill is not intended to be used against typical domestic criminal acts. I believe this should be included in the legislative history of S.B. 38. It is to be used for specific acts of terrorism, and is not to be used, as I interpreted the comments of the new Los Angeles Police Chief, against gangs. It is intended to address the specific acts and types of terrorist acts that occurred in Oklahoma City, New York City, Washington, D.C., and Pennsylvania. Another concern is adding an additional aggravating factor to Nevada’s already exceptionally lengthy number of aggravating factors in death penalty cases. I submit to you, from comments regarding recent cases, perhaps Nevada needs to narrow, rather than expand, its focus on aggravating factors. Additionally, aggravating factors currently listed in Nevada law would cover any act of terrorism.
I know there will be further work sessions on S.B. 38, and there is an interest in moving it forward. I had hoped Professor Siegel would be here today. I would like for him to bring his constitutional perspectives to the committee, because as a doctor of philosophy working in the University of Nevada, Reno, Department of Political Science, he is an expert in this field.
Senator Washington:
Senator Care asked Jerry Bussel a question when he testified before this committee. The question was, “How do you define what you would consider a criminal offense that either caused property or bodily harm versus a terrorist act?”
Mr. Jackson:
I agree that is a fuzzy area, which is why I believe it is important to include in the history of S.B. 38, it is to be narrowly defined and narrowly applied. I think the definition of an act of terrorism is a good one. I have the same concerns as have been discussed here about an act of undeclared war. I think it is undefined and too malleable a concept. I do not believe subsection 1 is needed in section 6 of S.B. 38, because subsection 2 covers all relevant types of acts.
Senator Care:
Again, we all have the same concerns. If someone goes into a courthouse in a large city and takes a hostage, he will be on the 11 o’clock news and charged with the appropriate crimes. If that same person goes into a courthouse in a county with a population of 1000 people, and as stated in S.B. 38, intimidates or coerces a civilian population, arguably that is an act of terrorism because that is a civilian population in a small county as opposed to a large city. I read an act of terrorism, even though S.B. 38 does not say it this way, to be something more. There is a nebulous threshold that separates the crime from the act of terrorism. I do not know what it is, but I believe it is what we are searching for.
Mr. Jackson:
I certainly agree, and that is why I think in drafting this type of legislation, what is said in this room by committee members, and what is said on the floors of the Senate and the Assembly, has to be exceptionally clear so law enforcement agencies, prosecutors, and offenders know exactly what they are dealing with. They will also know these laws are not going to be applied in order to circumvent the constitutional rights of any individual.
Senator Wiener:
I am looking at section 6, paragraph (b), and my concern goes beyond that of Senator Care. This interpretation may be an overzealous response. Paragraph (b) of section 6 reads, “Disrupt, affect or influence the conduct or policy of a governmental entity by intimidation or coercion.” Certainly intimidation or coercion can be interpreted in different ways. I am thinking of a school board meeting, where there are outraged parents who may be perceived to be intimidating because of their zeal and concern. From your point of view, you are talking about crimes that have already been statutorily addressed and making them something more? We need to know what something more is. Could this create a crime that is not now considered a crime, if we interpret this to the extreme?
Mr. Jackson:
Yes, and that is why it is so important for the intent of the law to be clear. I suppose under the most zealous application of these concepts what Ms. Hansen did at the DMV was a clear act of terrorism. I do not believe that is what anybody would intend. I would like to believe no prosecutor or police officer in Nevada would interpret Ms. Hansen’s actions as an act of terrorism. It might aggravate them, but that is why she does it. It is her right to do so.
Senator Washington:
The bill does not mention aggravating circumstances. Under the circumstances of Ms. Hansen’s scenario and the scenario of the parents at the school board meeting, would not the prosecutor have to take into account the aggravating circumstances under which the act of terrorism was committed?
Mr. Jackson:
I agree with you and I believe you are looking at it from the right perspective. However, for the terms that cannot be absolutely defined, we cannot be sure every prosecutor and police officer who must decide whether an act falls under S.B. 38 is going to think in the same way. Hopefully, calm heads and contemplation will prevail, and it will not be misapplied. For the record, Mr. Olsen reminded me this is not the bill that was to be brought forth by the Las Vegas Metropolitan Police Department (Metro). He and I have discussed the antiterrorism legislative perspective, and I do not believe it is anyone’s intent to apply it inappropriately.
Senator Nolan:
I agree completely with the intent of S.B. 38, and I understand the need for it. We do not want to create a piece of legislation so weak that, if needed, would not be effective against an individual who intended to commit a heinous act. As you indicated, we have other statutes we have already used to deal with acts of gang activity, or somebody coming in and taking a small courthouse hostage, or even the act that just occurred in Chicago, where an individual released a can of mace or pepper spray into a crowd resulting in a number of deaths. His intent was to take out a couple of security guards, but in fact the stampede and fear that ensued caused a dozen people to die. Certainly that was not intended to be an act of terrorism. In reading through S.B. 38, I believe as long as the intent is defined, we should be able to keep most, if not all, of the language.
Chairman Amodei:
Mr. Jackson, I only say this in the context of, as we work session this in the near future, the empty chair defense is not going to be available to anybody. If you have concerns with specific language or specific issues, then we need to know what your suggestions are in terms of alleviating those concerns so we have something specific to look at.
Mr. Jackson:
Thank you, Mr. Chairman. I will take that charge, meet with my clients, and put our concerns into writing.
Chairman Amodei:
Also, meet with Mr. Cohen or other appropriate defense representatives because, as you indicated, we are going to build a record on this. When S.B. 38 goes forward, we would like the record to be fairly complete in terms of the prosecution community, the law enforcement community, and all the concerns heard today.
Lieutenant Olsen:
Just to set the record straight, we still support this bill as written. We are concerned something may be written so restrictive it is of no use even against acts of terrorism, and I will go on the record to say law enforcement’s intent is not to go after gangs with terrorism bills.
Chairman Amodei:
You have indicated there is another bill coming out of the Assembly. Are there any other measures currently in the queue on this issue?
Lieutenant Olsen:
No, I am not aware of any other than Senator Raggio’s bill, and it closely resembles what Metro drafted.
Chairman Amodei:
What bill number is that?
Lieutenant Olsen:
It has not been dropped yet.
Senator Raggio:
I have not heard everything said about this bill. I heard some of it because of our ability to monitor committee. I have been around the Legislature long enough to know somebody usually has legitimate concerns about any measure, and I accept their testimony in that light. However, let me categorically state, this bill is terribly important, and is not a bill that should be watered down and made ineffective. I have concerns about the comments from the representative of the ACLU because those are the same kinds of concerns expressed in Congress and in many other states that dealt with this problem during the intervening time before session commenced. They were heard and rejected. We are not giving up essential rights in this bill. We are dealing with those tools that are absolutely essential and necessary to have immediate response capability, both physically and legally, to deal with terrorist situations. The committee asked some questions in my absence about the definition in section 6, and others testified about the definition of the act of terrorism. I submit to you, those questions indicate the persons asking the questions or commenting on S.B. 38 are not reading it properly.
Section 6 defines an act of terrorism, and again, this has been discussed in all the states that handled similar legislation and in Congress. An act of terrorism is an act of undeclared war, not what the United States is doing. An act of undeclared war is the bombing of Pearl Harbor, somebody lofting a missile into a city or contaminating water supplies, things of that kind. War is not conducted anymore in so-called civilized fashion, by countries. Undeclared wars are acts committed by members of groups, such as Al Qaeda, who commit acts that may not fit into a specific definition included in S.B. 38. Who knows what they will think of next? Who thought they would use an airplane as a bomb, as a lethal weapon, to go into the World Trade Center? That was not a country; that was an entity. It was a group of depraved individuals who committed an act of undeclared war.
With due respect to Senator Wiener and others, when you just pick out paragraph (b), and say, “any act that disrupts or attempts to influence the conduct or policy of a governmental entity,” that is not what it says. You have to have, first of all, an act involving the use, threatened or attempted use of sabotage, fear, or violence. Those are not the kind of people who are going to try to influence a government. That is the predicate and has to exist and be intended to intimidate or coerce a civilian population or disrupt or influence a conduct or policy of a governmental entity. If somebody came in and did that with the use of sabotage, fear, or violence, would anybody argue, even the ACLU, that somehow that is a civil right? It is not a civil right to influence, intimidate, or disrupt the conduct or policy of government by the use of sabotage, fear, or violence. I am a little annoyed when someone distorts the language. I do not think any of us are going to condone that, and I would hope the ACLU would not condone it. I could not sit back and have this misread or misinterpreted, and I do not think it is capable in that particular instance of being misread or misunderstood. If there are any other specific comments, I would be happy to address those. I am not saying this bill cannot be changed, obviously, but do not change it for some purpose that is not real. I think we really need to express ourselves on this and we need to do it quickly.
Senator Washington:
I think we wanted to clarify the intent of the legislation for the record, especially for defining declared and undeclared war. I asked for clarification, and I thought about Pearl Harbor; that was an undeclared war or an act of terrorism perpetrated against us by our enemies.
Senator Raggio:
The reason “undeclared war” is in S.B. 38 is because you cannot foresee the acts of terrorism. We know there are missiles, biological agents, and chemical agents, but who knows what else? Again, in this day and age, the act will probably not be by a country; it will be by a subversive group out for this type of terror.
Senator Washington:
You made reference to the act of terrorism in section 21, and I had a question about delivery systems, but I think you defined it quite well in subsection 2 of S.B. 38. A delivery system could be delivered by anybody.
Senator Raggio:
I cannot take pride of authorship. This language has been crafted through legislative and executive branch efforts, both federally and at local levels. If we can perfect it and make it more definitive, fine. It certainly is not intended to deal with ordinary events. I also heard the comment we should not add another aggravating factor to circumstance. I know the committee is dealing with requests to both add and delete aggravating circumstances. I do not think this bill should be part of that debate. If there ever was a reason for an aggravating circumstance to be considered by a jury in determining a death penalty, certainly an act of terrorism ought to be one of those aggravating circumstances.
R. Ben Graham, Lobbyist, Clark County District Attorney and Nevada District Attorneys’ Association/Las Vegas:
Sometimes when I feel compelled to offer testimony, it is as much to remind myself as anyone else, in reading a criminal statute establishing conduct that is or may be criminal, we need to read it in whole. It is a total body of law. In years gone by, we have talked about the rule of lenity, which means if a bill can be interpreted in favor of the defendant, that is the way it goes. Picking out an isolated situation is not a way to look at a criminal statute, especially one such as this. The State has the obligation of proving each and every element of offense beyond a reasonable doubt. The standard under which we file a case is the abiding belief we can get a conviction beyond a reasonable doubt. It does not isolate one thing such as picketing with our right of assembly; it needs to be read in whole and within the context of terrorism. We stand ready to work with concerned parties to make certain the bill is one that can be enforced and be effective.
Chairman Amodei:
We will close the hearing on S.B. 38. We will accept testimony for the next 2 days, from anybody who comes before the committee, to the extent it adds to the discussion. It will be under the heading of work session of previously heard matters. When we work session S.B. 38 for a vote, concerned parties will be specifically informed. We want to keep the dialog and input on S.B. 38 moving in a timely manner.
Mr. Anthony and Mr. Wilkinson, I think some of the things the committee needs to prepare to take a position on this are an overview of other states’ actions, the genesis of the various provisions, testimony of the Association of District Attorneys on record, testimony of defense representatives on record, and continued input from people already on record. I believe this is an important matter in terms of policy, and we want as complete a record as possible. We also need Mr. Bussel’s opinion on record.
Senator Titus:
I have not had time to study the “Explanation of Senate Bill No. 38” (Exhibit D), but there are a couple of things I would like staff to look into. Regarding section 23 that says a child must be prosecuted, I would like to know what age defines a child, the difference between “must” versus “may.” Under section 21, I wonder how making a false threat a category B felony compares with other kinds of false threats. In section 14, where it talks about the definition, and includes providing material, if indeed, the penalty is the same for all those things. Perhaps we would want to consider a different penalty for providing a means of oral communication compared to actually being involved in the terrorism. I believe there is a big range of activities there being lumped under one extreme penalty. Regarding subsection 1 of section 15, about hindering the prosecution of a terrorist, how does that apply to terrorists’ lawyers, whose job it is to defend terrorists? Would they be considered hindering the prosecution? I came in on the tail end of Senator Raggio’s remarks, when he was responding to something Senator Wiener asked. I would like to say I have sat in this judiciary committee when we considered concealed gun bills, and I have had gun advocates come in and hand me bumper stickers that say, “If you take our guns, who will shoot the liberals?” If you want to look at the language that says, “use or threatened, fear or violence in order to influence the conduct or policy,” that is it. If you want to accuse these people of being involved in terrorist acts, it would be all right by me, because I am the one they are threatening, but I do not think you want to go that far. We had better take a look at these definitions.
Chairman Amodei:
If there is no other business to come before the committee, we are adjourned at 9:34 a.m.
RESPECTFULLY SUBMITTED:
Jo Greenslate,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: