MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
February 26, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 9:30 a.m., on Wednesday, February 26, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4412, 555 East Washington Avenue, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Barbara Moss, Committee Secretary
OTHERS PRESENT:
Peter D. Krueger, Lobbyist, Nevada Petroleum Marketers & Convenience Store Association
Mary Lau, Lobbyist, Executive Director, Retail Association of Nevada
Alfredo Alonso, Lobbyist, Nevada Resort Association
James J. Jackson, Lobbyist, American Civil Liberties Union of Nevada
Richard Siegel, Ph. D., Lobbyist, President, American Civil Liberties Union of Nevada
Joseph L. Johnson, Lobbyist, Toiyabe Chapter/Sierra Club
Gerald Gardner, Chief Deputy Attorney General, Criminal Justice Division, Office of the Attorney General
Chairman Amodei:
I will open the work session. There are three bills under consideration contained in the Work Session Document (Exhibit C. Original is on file in the Research Library.) We will begin 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)
Chairman Amodei:
There are several amendments to be submitted on S.B. 91.
Peter D. Krueger, Lobbyist, Nevada Petroleum Marketers & Convenience Store Association:
I submitted a proposed amendment to S.B. 91 (Exhibit D). Working independently, Mary Lau and I arrived at the same concept in order to make S.B. 91 more complete and powerful. We want to remove the word “knowingly” and insert language already existing in statute regarding the use of tobacco by underage people. Therefore, we are suggesting “compliance checks,” sometimes referred to as “stings.” We are adding subsection 3, which spells out the parameters for a compliance check by law enforcement.
Second, we suggest subsection 4, which would add additional safeguards for retailers. That is our proposal and we commend it to the committee’s attention for swift and positive action.
Chairman Amodei:
Ms. Lau, please provide your thoughts.
Mary Lau, Lobbyist, Executive Director, Retail Association of Nevada:
We previously submitted an amendment to S.B. 91 consistent with our testimony and, at a later time, saw Mr. Krueger’s amendments. Our amendment reached a total comfort level with Mr. Alonso’s amendment, which will be discussed later.
During testimony on S.B. 91, there was discussion on the case, Garcia v. Sixth Judicial District Court. Mr. Garcia was 20½ years old, had grown a goatee, was wearing a hat, and volunteered for the project. In my opinion, it was entrapment and did not reflect “knowingly,” “willingly,” or anything else. The criteria on tobacco stings, set by this body, is the child must look like a child and honestly refrain from altering, or attempting to alter, his or her appearance. One of the test questions is: Are you of age? The next statement would be: Let me see identification. Under requirements regarding tobacco stings, if a person is asked, “Are you of age?”, he or she must answer honestly, which stops the procedure right there. The sting was over because the person was presumed to be in compliance due to the fact identification was checked and verification begun.
Our concern is the manner in which the sting was conducted. The sting was mentioned to Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department and Nevada Sheriff’s & Chief’s Association. He reviewed several amendments at the time, but did not have a chance to peruse ours.
We request standards be set on conducting stings. The committee may remember Kathy Bartosz, Grants and Program Analyst, State of Nevada Juvenile Justice Commission, Department of Human Resources, who gave testimony regarding how the stings were going, the level of compliance, and how well the operation was proceeding.
Senator Care:
In Garcia v. Sixth Judicial District Court, it was my impression law enforcement used the underage criteria because they knew the person appeared to be under the age of 21. I recall signs posted in convenience stores regarding whether or not a person appears to be a certain age, let us say 30 years old. I hate to get into how a sting should be operated because the test is whether or not a store clerk exercises a statutory duty to seek identification to verify or contradict whatever an individual might say. It is almost like saying a mistake of fact is not a defense, similar to saying in statutory sexual seduction, “She looked like she was …,” fill in the blanks. I have reservations about that.
I reviewed Mr. Alonso’s amendment and am inclined to agree with it. I still think the operator of a store, regardless of a person’s appearance, has a duty to request identification. I do not want to restrain the Las Vegas Metropolitan Police Department (METRO) from whatever way they conduct sting operations.
Ms. Lau:
We do not want any kind of restraint on METRO, or anyone else. We are concerned that the person altered his appearance, appeared in court clean shaven, and so forth. The procedure has worked well with tobacco stings and has in no way prohibited success. Your reference regarding age had to do with tobacco itself. Clerks are required to check whether or not a person is 21 years of age when selling alcohol. Although that is not the legal limit for tobacco, store clerks must automatically check identification in any event. This was put in place many years ago and we are seeking a way to accomplish more artful compliance.
Chairman Amodei:
Are there any more questions of Mr. Krueger or Ms. Lau?
Alfredo Alonso, Lobbyist, Nevada Resort Association:
There is an amendment contained under tab F of your Work Session Document (Exhibit C) we believe adequately protects the retailers of alcohol and, to some extent, members of the public from unintended consequences. There are a couple of changes. In section 2, subsection (a) of our amendment, the language “was over the age of 21” could imply a person would have to be over the age of 21. We are attempting to change the language to, “21 years of age or older.”
The other issue is whether we should have administrative proceeding language in a criminal statute. When putting the amendment together, we thought it would clarify the issue, but we defer to counsel.
Chairman Amodei:
Are there questions of Mr. Alonso?
Senator Titus:
Would this legislation have any affect on Nevada’s dram shop provisions?
Mr. Alonso:
It is my understanding it is separate. Senate Bill 91 is separate and deals only with the criminal statute. Since we cannot have the word “knowingly,” that standard cannot be in there anymore. This is essentially the best we can do to protect people on the criminal side.
Chairman Amodei:
Are there any more questions or testimony on S.B. 91? With the committee’s permission, I would like to work session S.B. 91 one more time in order to hear testimony from R. Ben Graham, Lobbyist, Nevada District Attorneys’ Association-South, and Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department and Nevada Sheriff’s & Chief’s Association, in regard to the amendments. Is there any objection? Seeing none, the work session discussion on S.B. 91 is closed.
The work session is open on Senate Bill 106 (Exhibit C).
SENATE BILL 106: Authorizes county clerks to impose additional fee for filing of certain actions and responses thereto in district courts to offset portion of costs of providing technology to courts. (BDR 2-614)
Chairman Amodei:
I asked Mr. Anthony to put together a compendium of all court-fee bill draft requests (BDRs) to ascertain what is in play so far.
Is there any testimony with respect to S.B. 106 in a work session context? Seeing none, the work session on S.B. 106 is closed.
The work session is open on Senate Bill 38 (Exhibit C).
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)
James J. Jackson, Lobbyist, American Civil Liberties Union of Nevada:
You have before you a memorandum (Exhibit E) that is a compilation of comments by Dr. Rich Siegel, Lobbyist, American Civil Liberties Union of Nevada, on S.B. 38, along with those of JoNell Thomas, American Civil Liberties Union (ACLU) and Nevada Attorneys for Criminal Justice (NACJ). I will turn the presentation over to Dr. Siegel.
Richard Siegel, Ph. D., Lobbyist, President, American Civil Liberties Union of Nevada:
The ACLU will be actively involved with the Senate Committee on Judiciary this session. We have a five-person staff working with the Legislature and are the most rapidly growing organization in the State of Nevada in the context of privacy and liberty issues that emerged since September 11, 2001.
Senate Bill 38 is a very broad bill intended to do much the same thing as Assembly Bill (A.B.) 99.
ASSEMBLY BILL 99: Makes various changes regarding murder committed with intent to commit certain acts of terrorism. (BDR 15-751)
Dr. Siegel:
I reviewed both S.B. 38 and A.B. 99 and found A.B. 99 to be a skeletal version of what is intended in S.B. 38. In section 1 of S.B. 38, terrorism and threat of terrorism are defined as “more than one person,” and we would prefer the language, “of many people.” The murder statutes say there is a possibility of murdering two people and endangering more than one person. In September 2002, a person entered a bank in a small community and killed four or five people. That was not terrorism, it was multiple murder. We are seeking the term, “many people,” which is understood as terrorism.
Section 6 of S.B. 38 is problematic, and the definition of an act of terrorism is critical in both S.B. 38 and A.B. 99. An overzealous prosecutor, or a prosecutor under pressure in certain directions, could perceive a labor strike involving the interest of organized labor as disruption of a government entity, a public infrastructure, or communications. Another example is a large scale public demonstration in Washington D.C., in which 80,000 people are E‑mailing the federal government. It may be a criminal action when a demonstration prevents federal offices from operating, but it is not terrorism. A definition of terrorism should be short, to the point, and involve the threat and use of violence to a significant number of people. It should distinguish terrorism from other kinds of murder.
There are many words in section 6 of S.B. 38, such as “disrupt,” “affect,” or “influence” the conduct of policy. We give awards for affecting or influencing the conduct of public policy, therefore, from our perspective, section 6 of S.B. 38 needs to be rewritten.
Section 9 of S.B. 38 raises issues about actions which, arguably, support terrorism. It came to a head after 9/11 that to conceal, aid, further, house, send communications, and send money are criminal activities, but are not exactly the same as terrorism itself. We would like to more clearly address actions to abet which would be distinguished in some regard, at least in penalty, from other actions. The naïve and uneducated immigrant population, and others, have been arrested and charged for providing money to charitable organizations. I, myself, have been in that position during the past 6 months. I have written checks to charities when I am not exactly sure what they do. I do not know whether they provide charity to people in Israel, the West Bank, and Gaza. It is not in my control to know whether or not the charitable organizations do wrong things with the money. We must be careful about abetting behaviors because many of them are not genuinely under the control of the people involved.
In reference to Page 2 of Exhibit E, regarding section 15 of S.B. 38, JoNell Thomas reflects, “Defense lawyers should not do their job.” Section 15, paragraph 1, of S.B. 38 states, “A person shall not knowingly hinder, delay or obstruct the prosecution of a terrorist.” As every judge will tell you, both sides hinder, delay, and obstruct prosecutions. I understand what is intended. I imagine there are violent things a person could do, such as blow up the courtroom. Lawyers hinder, delay, and obstruct every single day, but we do not want it to be referred to as terrorism.
Chairman Amodei:
Dr. Siegel, do you think the process of providing defense to an accused person in this State, by definition, involves the words hinder, delay, or obstruct, or do you think it is a constitutional right to which a person is entitled as a citizen of this country? As a member of the bar, I do not do much defense work these days, but I am troubled by a description of my colleagues who do defense work as hinderers, obstructers, or delayers.
Dr. Siegel:
JoNell Thomas, an eminent member of the bar, recognizes at any one time a lawyer is one judge away from being accused of hindering, delaying, or obstructing. It is in the eye of the beholder.
Chairman Amodei:
It would be good if I just leave it at that. Thank you. Please continue.
Dr. Siegel:
I did not mean any offense.
Chairman Amodei:
I am hard to offend, so please continue.
Dr. Siegel:
Section 20 of S.B. 38 addresses the issue of possessing lethal agents which relate to other actions. The language excludes things that have other lawful purposes. Every office and home has a lethal agent, particularly in relation to a small child. We must be careful how we deal with the question of possession of so-called lethal agents. Poisons are lethal agents and are everywhere within our society.
Finally, in section 21 of S.B. 38, First Amendment violations, we find language that an act would “frighten, alarm or distress any person,” which is also related to section 6 of S.B. 38. This has been the subject of considerable amusement. We are all distressed from the moment we wake up in the morning by all we encounter within this context. The terms “frighten,” “alarm,” and “distress,” are extremely subjective.
Much of S.B. 38 would not be a problem if you or I were the ones interpreting all the words. However, a prosecutor or sheriff under pressure to do something about a strike, a police chief in Washington D.C. facing 80,000 electronic communications and told the function of government is being obstructed, the actions in Jarbidge, Elko County, in which people clearly disrupted, with probable violence, the actions of government, may very well be criminal acts, but they are not terrorism. Thank you very much.
Chairman Amodei:
Are there any questions of Dr. Siegel?
Senator Washington:
In reference to section 6 of S.B. 38, in regard to undeclared war, would the Oklahoma bombing be considered an act of terrorism or undeclared war?
Dr. Siegel:
The Oklahoma bombing was a clear act of terrorism, not an act of war. Individuals cannot make acts of war. Perhaps organizations, such as Al Qaeda, could make an act of war, but Timothy McVeigh and his buddies could not. At present, it is interesting to note we do not have a condition of declared war, nor an official condition of national security or emergency. One might wonder why we do not have an official declaration of national emergency, but we do not. There is no legal term for undeclared war. This is a legal document, and there is no legal term entitled, “undeclared war.” Legally speaking, there is the model of police action created in the Korean context, and there is an act of declared war. The phrase “act of undeclared war” is a problem because we really do not know what it means.
Chairman Amodei:
Are there any more questions for Dr. Siegel? Is there any more testimony on S.B. 38?
Joseph L. Johnson, Lobbyist, Toiyabe Chapter/Sierra Club:
I have comments from the Sierra Club supporting Dr. Siegel’s points. The Sierra Club is concerned about the impact upon natural resources. From a personal standpoint, much of my career I was employed as a geologist. Part of that time I worked in the mineral industry in the exploration of uranium minerals. I have a sizable collection of ore grade uranium minerals. By the definition in S.B. 38, I could easily be categorized as a terrorist. The definition is too broad when uranium radioactive elements are widely distributed in the natural environment.
Granted, these definitions are strictly liability crimes, but in times of crisis there could be an overly broad interpretation of many acts committed. In essence, the desire to protect against terrorism and the preventive character of passing punitive laws was faulted in 9/11 because we did not anticipate people would be willing to sacrifice their lives to harm general society. Senate Bill 38 does not address that issue. It is not preventive in nature, it is only punitive in retrospect. I urge you to consider the definitions, tighten them up, and recognize potential abuses. Thank you.
Chairman Amodei:
Are there any more questions for Mr. Johnson?
Gerald Gardner, Chief Deputy Attorney General, Criminal Justice Division, Office of the Attorney General:
I am pleased to be here this morning on behalf of the Attorney General to testify on S.B. 38. The Office of the Attorney General strongly supports this important antiterrorism measure. As a prosecutor, and chief of the State’s criminal prosecution unit, I am deeply concerned about Nevada’s vulnerability to terrorism. I am deeply concerned with the fact that we experienced a brush with the terrorist element responsible for 9/11 in Las Vegas. At that time we would have been powerless to do anything about it in terms of criminal prosecution. I am therefore grateful to see lawmakers taking immediate steps to ensure we have tools for effective prosecution of these dangerous criminals.
I believe S.B. 38 is strong legislation that, when put in place, will allow prosecution and severe punishment of those who try to further such terrorist motives within our State. As a prosecutor, I would like to address a few aspects of the bill I believe are important statutory tools for a criminal prosecutor. These tools not only allow prosecution of those who commit acts of terrorism, as defined by the bill, but those who commit other crimes in furtherance of terrorism. It also provides important punishment provisions for those who commit murder as part of a terrorist act.
The first aspect of S.B. 38 I would like to address is that which provides enhancement for punishment of felonies committed with a terrorist motive or to conceal terrorism. This enhancement is much like enhancements already in place in Nevada’s criminal statutory system. We have criminal enhancements that punish those who target the elderly, use weapons, commit crime in furtherance of gang activities, and commit crimes out of a motive of hatred for people of another race, ethnicity, or sexual orientation.
The Office of the Attorney General strongly supports the idea of an enhancement to existing crimes committed as part of a terrorist scheme, furtherance of terrorism, or to conceal terrorism. We believe the enhancements will be fully enforceable and pass constitutional muster. Our courts have upheld the constitutionality of similar enhancements and routinely upheld the doubling of criminal sentences for use of weapons, or in cases of age, gang, or hate enhancements. The courts have routinely held these doublings of sentence are not disproportionate to the crime. We are therefore confident that a terrorism enhancement would receive the benefit of the same reasoning in our appellate courts.
I would also point out an enhancement of this nature does
not in any way lessen the prosecutor’s burden of proof or obligation to prove
the elements of the offense. The prosecutor still has to prove the underlying
offense to a jury and, under well-established constitutional law, it would have
to prove the enhancement facts to a jury beyond a reasonable doubt. Therefore,
none of the constitutional protections currently afforded a criminal defendant
would be reduced in any way. This would clearly fall under recent U. S. Supreme
Court
cases, Apprendi v. New Jersey, Ring v. Arizona, and others
that require a jury to be the deciding fact finder in determining the existence
of such an enhancement.
The second important aspect of S.B. 38 is the portion of the bill which provides that murder committed in the perpetration, or attempted perpetration, of an act of terrorism will be considered first-degree murder. It is similar to our felony murder rule. The principle is certain felony crimes are so inherently dangerous, and put the lives of others at such risk, that they should be considered first‑degree murder if commission of those crimes results in the death of another person. The prosecutor does not have to prove expressed malice, premeditation, or deliberation. The circumstances of the killings themselves, being so dangerous and of such disregard for the lives of others, elevate the killing to first-degree murder by theory of implied malice.
Therefore, if robbery, burglary, kidnapping, and such offenses, result in murder and can be elevated to first-degree murder, then surely acts of terrorism, acts that put the lives of many other people at risk, as defined in section 6 of S.B. 38, demonstrate terrorism as an act so inherently dangerous it elevates a killing to first-degree murder. This is a very important part of the bill. You might think it would be an easy matter to convict a terrorist of first-degree murder if he or she kills somebody, but that is not necessarily so under our current statutory system.
Mr. Gardner:
In a murder prosecution, to get first-degree murder you must generally prove premeditation, deliberation, and intent to kill a person. A terrorist, for example, may argue or provide evidence that suggests an intent to target an infrastructure, a building, or a mode of transportation, and can hide behind the lack of expressed intent to kill a human being in an effort to avoid first-degree murder because of the way murder statutes read. Under such circumstances, the terrorist may well be eligible for a second-degree murder conviction, and that is improper.
Senate Bill 38 prevents that argument. It states if someone commits an act of terrorism, a violent act that by its very nature puts the lives of others at great risk of harm, and if the terrorist in fact kills somebody, he or she should quite properly be subjected to a first-degree murder prosecution. The appellate courts of the State, and the United States Supreme Court, have consistently upheld the theory of felony murder.
Third, S.B. 38 provides that an act of terrorism will be considered an aggravating circumstance for the purpose of the death penalty. I believe the overlap in A.B. 99 is with aggravating circumstances for murder. The main concern in an evaluating circumstance for the death penalty is whether that aggravator sufficiently narrows the class of person who will be eligible for the death penalty. In the past we have had constitutional challenges and problems with court decisions that have declared certain aggravators to not narrow the class of persons. We have all heard the motive behind the death penalty is to reserve it for the worst of the worst. Applying the death penalty to a murder committed in furtherance of acts of terrorism clearly has this in mind. Senate Bill 38 is mindful that aggravated circumstances should narrow the class of person eligible for the death penalty, and will only make eligible for the death penalty that narrow class of person who actually commits a murder with attempt to commit, further, or conceal an act of terrorism.
Finally, I will address the portion of the bill that actually creates the crime of terrorism. I know everyone is familiar with this portion of the text and I will not go through it line by line. I believe testimony today, and commentary in past weeks, suggests that the crime of terrorism would be used to prosecute people for exercising their First Amendment rights for protesting against the government. These accusations are false. The statute is clear and must be read in its entirety: to prosecute for acts of terrorism the State must have evidence of a combination of act and intent. In a joinder of act and intent, as is required in virtually every criminal statute in the Nevada Revised Statutes (NRS), a person has to commit an act involving sabotage, threats, or fear of violence, and intend to intimidate or coerce the civilian population, and destroy, contaminate, impair, or disrupt the government, and retaliate against the government through substantial disruption, destruction, and impairment.
Most of these acts are already crimes, as Dr. Siegel pointed out. We are not talking about lawful civil disobedience; we are talking about anarchical, terrorist acts that need to be punished in the strongest possible manner. Senate Bill 38 does not criminalize lawful behavior, it punishes acts that, for the most part, would already be criminal, but which rightfully should be treated much more seriously when they are committed as part of a terrorist scheme.
In conclusion, as most of you know, some of the terrorists responsible for the 9/11 attack stayed in Las Vegas shortly before launching their attacks from Boston and Maine. Although we do not know what they were doing, we can assume there was some plotting or conspiring about their future actions during those months. If we had uncovered the plot while the terrorists resided in a downtown hotel in Las Vegas several months before the attacks on the World Trade Center and the Pentagon, under State law we would likely only have been able to prosecute them for a Category B felony with imprisonment of 2 years to 10 years under conspiracy to commit murder. That is at the outside. Under current State law, that is the biggest hammer we would have had over them before committing the act. They would be eligible for parole in 2 years. That does not seem appropriate. As a prosecutor, I hope I never have to employ any of these statutes. I think we would all be content to see them go unused forever.
Those who think this bill is offered merely for public consumption are naïve. The fact is, there are hundreds of terrorist cells in this country. They have touched our communities, they stayed in Las Vegas before launching their attacks, and their goal is to literally destroy our country. I would like to thank the authors and supporters of S.B. 38 for contributing in an effort to ensure that will never happen. Thank you.
Chairman Amodei:
Are there any questions for Mr. Gardner?
Senator Nolan:
I would like to offer the scenario of a bank robbery wherein the intent is to rob and create fear with the use of force and violence, and a person is unintentionally shot in the process. In that event, what would prevent the district attorney from using this provision in the plea bargaining process while indicating to the perpetrator that his or her action could be taken as an act of terrorism should he or she not plead down to these particular charges and, because of an act of terrorism, could face the death penalty.
Mr. Gardner:
The main issue with that scenario is there must be evidence that the target of the terrorist intent is some form of population, either a large or civilian population, a government entity, or a community in which they intend to instill panic or unrest. As in the Symbionese Liberation Army (SLA)-Patricia Hearst robberies of the 1970s, if the crime was committed as a way of funding future terrorist activities, it would be appropriate to charge it under the terrorism statute. However, if a person or group of people rob a bank with the purpose of stealing money and in that action they injure individuals, first, you must count on reasonable prosecutorial discretion to understand where this statute is intended to go, and second, you would not have the element, in that particular scenario, of an act intended to target either a civilian population, a governmental entity, or to cause widespread panic. I do not think that particular scenario would be a problem.
Senator Nolan:
I am closer to your philosophy on this issue than I would lead you to believe, but I am concerned S.B. 38 could be used in a situation not intended to be terrorism. I think that is the major concern of individuals who testified before the committee.
Mr. Gardner:
Would you like me to provide a scenario in which I believe the statute might be abused?
Senator Nolan:
Yes, that is the question.
Mr. Gardner:
If we were to strike down every law because of potential abuse, there would be few criminal statutes on the books. In a statute such as this, there are certain forms of domestic activism that might wrongly be deemed terrorism when they are not. As a prosecutor who values the obligation to pursue justice, I would hope prosecutors in the State would understand the difference between real terrorism and something other than that. If that fails, and a prosecutor simply does not understand, then we have many layers of judicial review to make sure the prosecutor does understand.
This morning, the United States Supreme Court reversed a pair of cases in which the federal government achieved racketeering and extortion convictions against antiabortion protesters. The United States Supreme Court said that was not the intent of the statute and reversed the convictions. That is the system under which we live, and it works.
Senator Care:
I am glad you brought up the SLA and Patty Hearst. In the 1970s we had the “Weatherman” (the Weather Underground Organization) as well. We are now struggling with the definition of terrorism. You referred to prosecuting these dangerous criminals. This suggests that a terrorist falls under the heading of criminal. What is different about a terrorist as opposed to a criminal? In the first hearing of S.B. 38, the committee pondered there might be something more, perhaps not definable. I think we have the attitude there is something more to it, perhaps on a grander scale.
With that in mind, the definition in section 6 of S.B. 38 addresses an act of undeclared war. Would you comment about the distinction between an act of war and an act of anarchy, and whether there is a distinction to be made between the conduct of someone who is domestic and someone who is foreign. Dr. Siegel earlier referred to Timothy McVeigh’s action as an act of terrorism. Somewhere it gets a little muddled, and perhaps my question is muddled, but would you please address it.
Mr. Gardner:
I am certain Dr. Siegel is more expert on issues of international relations and war than am I. It is a difficult question. I believe we are in a state of undeclared war at the present time. I believe the foreign terrorists who attacked us on September 11, 2001, and continue to plot against us, are an organization that has decided they are at war with our country. Through my years of prosecution experience, I have occasionally encountered domestic groups that indicate they feel a sense of war with the federal government, and perhaps to a lesser degree, with the state government as well. Those entities are out there. At what point do their lawful protests or civil disobediences turn into acts of terrorism? It is hard to say prospectively.
An individual like Timothy McVeigh may act in concert with
one of these groups, committing clear acts of violence, or threatening
violence, coupled with a stated intent to overthrow or disrupt the government.
In recent months, in a northwestern state, a plot by a militia-type group was
uncovered. The group had conspired and plotted to lure every law enforcement
agent in their jurisdiction to their compound and kill every one of them. They
also intended to kill judges, prosecutors, and every person in their community,
with intent to disrupt or overthrow their small government. I do not know how
they intended
to carry it forward on a statewide or nationwide level, but that was their
stated intent. That threat, in my opinion, is an act of terrorism under the
statute, and appropriately so.
I think it is easy to spot these acts when we come across them. However, prospectively, to define every type of event that would possibly be considered a terrorist act, at least domestically, is difficult.
Senator Care:
In regard to the part of section 6 of S.B. 38 that talks about undeclared war, I think now in retrospect after some 30-odd years, I would say the SLA and Weatherman were engaged in acts of undeclared war against the United States. I know there are those who say it cannot be an act of war unless it is actually a political entity of some sort, as opposed to a group with no agenda except to do destructive acts. I do not know. Thank you.
Chairman Amodei:
Is there any further testimony or questions?
Senator Washington:
As we grapple with this proposed legislation, we are trying to define whether domestic or foreign acts of terrorism are undeclared acts of war, and what flexibility would be needed by the Office of the Attorney General to prosecute under enhancement. There were two recent incidents, one at Ruby Ridge, which could have been deemed an act of terrorism, and the anthrax scare in Nevada, which could have been deemed an enhancement of terrorism as well. If you were to prosecute those two acts, would you use the enhancement for terrorism as a tool to prosecute?
Mr. Gardner:
In regard to the anthrax event, I believe the person was apprehended with inert samples of anthrax and ultimately released. Had the anthrax proven to be a legitimate, dangerous biological sample, and it was proven the person’s intent was to poison the water system, infect the population, or even threaten to do those things, it would be appropriate to prosecute for terrorism. The questions regarding Ruby Ridge, Waco, and other dark periods in our history, are more difficult to answer. I am not an expert on the facts of those cases. As a prosecutor, I would look for actual intentional acts on the part of the individuals.
We cannot prosecute people for merely disagreeing with the way government is run or deciding they want to separate themselves from government. We can prosecute them for committing crimes that violate the law. If those crimes are committed with intent to disrupt or overthrow the government, or terrorize the population, it is appropriate to enhance acts that are already crimes. Again, in order to apply an enhancement to any of these crimes, a person has to have committed a serious crime that is on the books and passed both legislative and judicial scrutiny.
Chairman Amodei:
The work session is closed on S.B. 38, but will be addressed again in a work session the week of March 10, 2003. Please provide any proposed amendments to the staff by March 6, 2003, and I will request a matrix for the committee. There will be an opportunity for additional testimony on what I hope will be the final time to address S.B. 38. I also request Mr. Wilkinson and Mr. Anthony to deliver the work session documents on S.B. 38 to the members of the committee the day before the hearing.
With respect to S.B. 91, I anticipate hearing it in work session some time next week. We will need a matrix of the various amendments in play at the present time. Individuals interested in S.B. 91 should provide amendments to Mr. Anthony by Friday, February 28, 2003.
Finally, with respect to S.B. 106, the matrix should provide the committee a global view of all the bills with respect to fee increases at the district court and Supreme Court levels in the State. Mr. Anthony, please give us examples of fees in district courts in Clark, Washoe, Churchill, and Humboldt counties, which will provide us a feel for urban and rural applications. I am not sure whether or not there is a difference, but the matrix will show it.
In addition, I would like a present fee structure for the Nevada Supreme Court with the addition of other measures presently pending, or in the queue, that have not yet dropped.
Senate Bill 105 went to the Senate Committee on Finance, the Senate Committee on Judiciary has S.B. 106, and we recently introduced a bill that has a probate application. Therefore, the committee can take a look at what is in play in terms of the present fee structure, what has been passed, and what we are being asked to vote upon.
It is my intention to work session S.B. 106 Thursday, March 6, 2003, or earlier next week. Any other data to be submitted on S.B. 106 should be given to Mr. Anthony no later than Friday, February 28, 2003.
I request a motion to introduce Bill Draft Request 43-37.
BILL DRAFT REQUEST 43-37: Repeals prohibition against certain use by governmental entity of photographic, video or digital equipment for gathering evidence for issuance of traffic citation. (Later introduced as S.B. 220.)
SENATOR CARE MOVED TO INTRODUCE BDR 43-37.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR NOLAN VOTED NO.)
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Chairman Amodei:
There being no further business to come before the committee, the hearing is adjourned at 10:35 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: