Finding an attorney to represent them in immigration court can be a challenge for people facing deportation proceedings who often don’t have the financial means to seek legal counsel.
In an attempt to bridge the gap, Nevada Assembly lawmakers on Wednesday approved AB376, which allocates $500,000 in state funds for the UNLV Immigration Clinic to expand its no-cost legal services for immigrants.
The bill advanced along party lines, with Republicans voting against it. Bill sponsor and Assemblywoman Selena Torres (D-Las Vegas) introduced AB376 during a hearing in the Assembly Ways and Means Committee on Tuesday alongside Majority Floor Leader Teresa Benitez-Thompson (D-Reno), who called the funding allocation a “smart use of money… an exciting use of money.”
“We have folks in the community who are doing really great work who are providing pro bono services to our immigrant community, and we know we have populations in need, so how do we help our helpers? And the answer was, get more support to the UNLV Immigration Clinic,” Benitez-Thompson said.
Nevada has the largest per-capita population of undocumented immigrants in the U.S.
Michael Kagan, director of the UNLV Immigration Clinic, said the funds would be used to create a community advocacy office off the UNLV campus intended to be more accessible for the community and to hire two new lawyers as part of the Immigrant Justice Corps, a fellowship program for law school graduates interested in practicing immigration law.
In addition to allocating half a million dollars to the clinic, the measure would also implement the “Keep Nevada Working Act,” establishing a task force headed by the lieutenant governor’s office and intended to generate strategies to bolster the state’s workforce and economy, including expanding pathways for immigrant workers and entrepreneurs.
The measure also requires the task force submit a report to the Legislative Counsel Bureau by July 1, 2022 with a summary of the work accomplished and recommendations for legislation.
Another section of AB376 requires the attorney general’s office publish model policies for local law enforcement agencies with the priorities of fostering trust between communities and state or local law enforcement, limit to the fullest extent legally possible interactions of state or local law enforcement with federal immigration authorities for the purpose of immigration enforcement. A subsequent section includes the limitation of immigration enforcement at public schools, colleges and universities, health care facilities and courthouses.
Various groups turned out in support of the bill, including the Nevada System of Higher Education, Legal Aid Center of Southern Nevada and the ACLU of Nevada.
“It's a policy failure that we have not declared legal counsel a right in immigration proceedings, and you have an opportunity to take a step forward by passing this bill and appropriating these funds to this program,” said Holly Welborn, policy director of ACLU Nevada.
The bill also saw opposition from the Nevada Sheriffs and Chiefs Association, members of the Independent American Party and the Nevada Republican Party.
Eric Spratley, speaking on behalf of the sheriffs and chiefs association, pointed to the provision in AB376 that requires the attorney general’s office provide model policies for local law enforcement agencies to adopt. He expressed frustration at the lack of a fiscal note in regards to the funds it would take for local law enforcement agencies to implement new policies.
“Each Nevada law enforcement jurisdiction is different and unique,” he said. “Law enforcement leaders across Nevada are elected or appointed by the people of that jurisdiction, and as such, their local law enforcement operations have policies which reflect how those Nevada residents want their jurisdictions to function.”
Torres clarified that local agencies are allowed to opt out of the model policies drawn up by the attorney general’s office.
“Over the recent months we've seen local law enforcement agencies asking, even in interviews in the media, for there to be model policies and expressing distress that there was no model policies. This would give the opportunity for them to create model policies and local law enforcement agencies can choose to adopt those if it's so appropriate,” she said.
AB376 has survived key legislative deadlines after it was declared exempt in April and has been significantly watered down from its original version, which focused more explicitly on curbing collaboration between local law enforcement agencies and federal immigration authorities (such as ICE).
For years, Nevada immigrants rights advocates have fought for the end of ICE detainers, practices by local law enforcement that hold undocumented immigrants for no legal reason other than to allow federal authorities to pick them up. Advocates argue this violates immigrants' constitutional rights.
A few Nevada agencies continue to participate in the 287(g) program, a formal partnership with ICE, including Nye County, but the informal practice of detaining immigrants for small infractions and flagging them on a database for federal authorities continues.
The measure must still pass through the Senate before heading to Gov. Steve Sisolak’s desk by Monday, when the session ends.
The various costs of deportation
Kagan, the UNLV Immigration Clinic director, said the $500,000 investment from the state general fund to the clinic over the biennium “might be more like $900,000 in impact,” explaining that deportation proceedings cost Nevada money and families separated by deportation end up depending on the state for more resources.
“When someone from Nevada is deported, that means that a family loses a breadwinner,” Kagan said. “That means a child loses a parent, that means that children are more likely to go into foster care, that means that schools may have additional costs for interventions to help that family, and I hope, for the sake of child safety, that is ultimately the state's responsibility and that's why it's important for us to do that work.”
When people avoid deportation and obtain legal permission to work, they can be self-sufficient and pay their taxes, he said, adding that a similar program in New York City generated $1 million in new tax revenue by expanding access to legal work permissions.
People are able to avoid deportation four out of five times, or 80 percent of the time, when they have lawyers to represent them in court, Kagan said, adding that the opposite is true as well.
“Just because they're in immigration court does not mean that people need to be deported,” he said.
The immigration clinic is the only place people facing deportation can turn to, he said, as most don’t have the means to hire a lawyer, especially unaccompanied children, who often face immigration proceedings alone. Immigration courts are civil courts, meaning that children facing deportation do not have a right to a government-appointed attorney, which is the case for criminal courts.
Kagan said unaccompanied children are the largest group of clients the clinic works with.
“Most of our child clients have been middle school or high school age but we have had clients as young as three when they first walked in the door. That's not something law school prepares you for very well, that's not a normal kind of client, but those children are victims of violence in their countries and often of child abuse as well,” he said.
With the goal to provide legal services to a growing population of people, Kagan said the funds allocated in AB376 could help propel the immigration clinic’s reach further in the long term.
“It would be the beginning of something bigger,” he said. “This is essential for the community in which we live, for our neighbors, and generally for the value that when someone's family is in jeopardy, they should not stand alone.”
As Nevada’s eviction moratorium comes to a close, a recently introduced bill aimed at ensuring tenants are connected with rental assistance faced opposition Monday from property managers, who argued that the measure disproportionately favors tenants and could prove ruinous for landlords across the state.
During a joint hearing of the Assembly Ways and Means and Senate Finance committee, lawmakers presented AB486, which aims at avoiding an eviction cliff once moratoriums are gone after June 30. Assemblyman Steve Yeager (D-Las Vegas) said the legislation seeks to integrate the rental assistance program into the state’s eviction and mediation process, ensure that people have access to neutral third parties to settle disputes and provide greater assistance to smaller “mom-and-pop” landlords who may not be able to access federally funded rental assistance.
“Assembly Bill 486 [is] a measured plan that balances the interest and pressing needs of all Nevadans to ensure tenants are able to maintain their housing, landlords are able to be made whole and our courts and social services systems aren't overwhelmed,” Yeager said.
Clark County’s housing assistance program has helped about 27,000 households to date, averaging about 1,000 a week, even though it has enough funding to support 40,000. It has a backlog of 9,000 applicants, down from the 20,000 reported at the end of last year, possibly as a result of the assistance program having new income and documentation requirements.
Trade groups representing property owners came out in strong opposition against the measure. Their opposition was summed up by Southern Nevada property manager Molly Hamrick, who said the bill would only serve to “keep landlords from providing a product in the marketplace that tenants desperately need.”
“It has been a struggle to get many of our tenants to apply for rental assistance, much less respond to us. We know that both landlords and tenants alike have found it very difficult to navigate the governor's directives, the eviction moratorium and local ordinances to determine what applies to them, and when it applies,” Hamrick said. “The legislative changes this session will only confuse matters worse.”
The $360 million in federal rental assistance left in Nevada is generally out of reach for tenants who make more than 80 percent of the area median income, or the midpoint of a region’s income distribution, and tenants must be involved in the process to secure the funds, which ultimately are sent to the landlord. The bill includes a separate $5 million allocation aimed at providing a safety net for small landlords who may be falling into a “doughnut hole” of support.
“So if for whatever reason, there's a tenant who is not being responsive, and we cannot get them to be responsive through the eviction mediation process,” Treasurer Zach Conine said, “what we wanted to create was a safety net for small landlords starting at $5 million. That if nothing else works, we could still try and make them whole.”
One of the goals of the legislation, Conine said, is to be able to reach the tenants that may be unresponsive to their landlords, to find a middle ground through the mediation process and get all the Emergency Rental Assistance money the state received “out the door,” instead of burning too quickly through the $5 million slated in the bill.
Under the bill, any eviction proceedings would be required to go through mediation to ensure that rental assistance dollars are used and that landlords and tenants can resolve cases out of court whenever possible.
Conine said that it is critical to pass the legislation because landlords and tenants are only eligible for assistance before an eviction takes place. Integrating the rental assistance process into the individual eviction mediation cases will ensure that landlords don’t lose out on payment, he said.
The bill offers landlords with unresponsive tenants the opportunity to collect 75 percent of the rent that is in arrears in exchange for not evicting the tenant for 90 days. Opponents said that provision would “deprive” landlords of their property rights and the $5 million set aside in the bill is not sufficient to make up for lost rent.
“Simply put, AB486 is an impairment of a landlord's right to contract and a violation of due process as a deprivation of property rights,” Susy Vasquez, executive director of the Nevada State Apartment Association, said during the meeting. “The $5 million dedicated to fund this bill is a drop in the bucket – the apartment association is bleeding over $17 million a month in rental arrears.”
A major provision of the bill allows tenants to use a landlord’s refusal to accept rental assistance money as an affirmative defense in an eviction proceeding. If the measure passes, courts would be required to dismiss eviction proceedings if a tenant receives rental assistance while proceedings are underway or if a landlord refused to accept rental assistance on behalf of the tenant.
Courts would also be authorized to impose civil penalties on a landlord found to have wrongfully evicted a tenant and would also require the landlord to pay a plaintiff’s costs and attorney fees.
A friendly amendment proposed by Yeager and attached to the bill would make the bill effective as soon as it is passed, something supporters say is needed because the state-level moratorium ends June 1 and the original July 1 effective date would have been too late. It would also expand the protection to apply to all nonpayment evictions, both rapid “summary” evictions and formal unlawful detainer civil actions.
Supporters said that the measure will help to smooth out confusion and delays when connecting landlords with federal dollars available through rental assistance, and that the bill will help smaller landlords.
“This bill will ensure that we don't leave a single federal dollar on the table for rental assistance. It will also make sure that there's no tenant who gets evicted when there are funds available to keep them in their homes,” Conine said.
Holly Wellborn of the ACLU of Nevada testified in support of the bill, saying the bill is necessary as a response to the “impending eviction crisis.”
“This crisis affects all Nevadans but the history of toxic and discriminatory housing policies and the persistent racially exclusionary practices caused this crisis to disproportionately impact people of color,” Wellborn said. “This bill is necessary to ensure that vulnerable residents do not fall off the cliff of an eviction crisis.”
The committee did not take immediate action on the bill.
A wide variety of state and federal laws and policies treat minors differently from adults.
People must be 21 to buy alcohol. The youngest someone can be to enlist in the military is 17. In Nevada, a person must be 16 to apply for a full driver’s license.
The differences have been perpetuated by case law, as well. In Roper v. Simmons (2005), the U.S. Supreme Court ruled the death penalty unconstitutional for minors, and in Graham v. Florida (2010), the court held that life-without-parole for non-homicide crimes is an unconstitutional punishment for minors.
“I think there's more realization now that children aren't able to make decisions the way adults do,” Ohrenschall said. “And trying to hold children accountable to the same standards we hold adults is not fair.”
Lawmakers this session are seeking to further separate the juvenile justice system from the adult criminal justice system at nearly every level, with legislation aimed at reducing referrals into the system, promoting rehabilitation programs and housing young offenders separately.
“I think the big effort on our part was to try to either keep kids from getting in the system if we can,” Ohrenschall said. “And if they are in the system, to try to see if there can be programs that can keep them closer to home, closer to their community.”
The efforts of Ohrenschall, who chaired the Legislative Committee on Child Welfare and Juvenile Justice during the interim, and others have made the 2021 legislative session a particularly active one for the subject. More juvenile justice bills were introduced this year than in each of the 2019 and 2017 sessions.
Though the 2017 session featured sweeping legislation such as a bill that established the Juvenile Justice Oversight Commission and another that enacted the Juvenile Justice Bill of Rights, Holly Welborn, policy director for the ACLU of Nevada, said juvenile justice issues are often overlooked — adult criminal justice bills on the death penalty and police reform have been at the forefront of the Legislature this session.
“The issue of juvenile justice really gets pushed down in the broader conversation … amongst the very controversial adult criminal justice reform topics,” Welborn said.
Many of this year’s juvenile-focused bills have received broad support. Bills aimed at easing penalties for youth cannabis or alcohol possession, expanding record sealing for youth offenders and creating a new Miranda warning for minors all passed unanimously out of the Assembly.
“I think that a lot of my colleagues are concerned about the school to prison pipeline,” Ohrenschall said. “They want to try to see reform and see as much done as possible that can divert children from getting caught up in the system.”
Below is a roundup of the ongoing efforts to reform the juvenile justice system this session.
Reducing points of contact and racial disparities
Nevada’s Juvenile Justice Oversight Commission — a body of 20-plus juvenile justice experts and stakeholders — has found that “African American youth are overrepresented at almost every contact point” in the juvenile justice system.
The commission’s racial and ethnic disparities report for the 2020 federal fiscal year, which ended September 30, 2020, found that while less than 15 percent of the state’s youth population was African American that year, the group made up more than 32 percent of the youth arrests. As the commission and the Division of Child and Family Services actively engage in efforts to reduce those disparities, lawmakers have introduced multiple bills aimed at helping children of color.
AB158, a bill from Assemblywoman Daniele Monroe-Moreno (D-North Las Vegas), would significantly lighten penalties for minors who purchase or possess alcohol or cannabis, including prohibiting jail time and fees for first and second offenses.
In an interview with The Nevada Independent, Monroe-Moreno said she brought the bill forward on behalf of A’Esha Goins, an advocate in the cannabis industry and the mother of a young Black man, who “had seen how other young kids of color have been charged with possession of marijuana and or alcohol.”
Monroe-Moreno discussed the importance of being constructive with children who make mistakes, rather than strictly punitive, and recalled her own experiences growing up.
“In our household growing up, you got three chances,” she said. “If you were stupid enough to do something that third time, then you really got in trouble, but the first time was my mom explaining why this behavior was wrong.”
For people under the age of 21 found guilty of a misdemeanor for possessing, consuming or purchasing alcohol or possessing less than one ounce of cannabis, the bill would replace misdemeanor penalties of up to six months jail time and up to a $1,000 fine with penalties of up to 24 hours of community service and a requirement to attend a meeting of a panel of victims injured by a person who was driving under the influence of alcohol or a controlled substance.
The bill would also revise the penalties for a second violation to require up to 100 hours of counseling or participation in an educational program, support group or treatment program.
The measure is intended to reduce the number of minors who enter into the state’s criminal justice system.
In 2019, more than 8,000 youth were arrested in Nevada, with possession of marijuana being the second most common charge. In 2020, the number of youth arrests declined by more than 2,000, and possession, sale, or use of an illegal drug dropped to the fourth most common charge.
“I do think this bill will help a lot of kids not get caught up in the system,” Ohrenschall said during the hearing. “And possibly just get the guidance they need without having to either be in court or in a detention facility.”
AB158 STATUS: The bill passed unanimously out of the Assembly on April 20 and awaits a vote on the Senate floor.
In the oversight commission’s racial disparities report, the group highlighted specific types of race-focused training for officers and dispatchers as a way to reduce disparities at the front end of the justice system. Though the report found that “police officers statewide generally receive training in racial profiling and implicit bias,” a bill this session is aimed at expanding that training.
SB108, created by the Nevada Youth Legislature, a program that allows a group of high school students to present one bill to the Legislature each session, would require all employees who interact with children in the juvenile justice system in the state to complete implicit bias and cultural competency training once every two years.
“It is urgent more so now than ever to address the inequality faced by minority youth within the Nevada juvenile justice system,” youth legislator Julianna Melendez said during an April 23 hearing. “I personally have friends who have been targeted by school police and treated differently compared to our white counterparts, specifically because of the color of their skin.”
Another youth legislator, Melekte Hailemeskel, shared how her worldview changed following the death of Trayvon Martin.
“From that day on, I began to see the world for what it truly was. My heart filled with fear every time my father stepped outside the house. I transitioned to fearing the police rather than feeling protected by them,” Hailemeskel said. “This bill gives the youth the opportunity to live life without fear of being victimized by implicit bias.”
The original version of the bill from the Youth Legislature would have mandated the training for all people employed in the criminal justice system; however, the amended version applies only to those employed in the juvenile justice system, such as juvenile public defenders, youth parole officers and school police officers.
The training would include explanations of the negative effects of implicit bias and the importance of understanding implicit bias, as well as cultural competency information focused on sexual orientation, gender, race, ethnicity and religion.
Kathryn Roose, a deputy administrator at the Division of Child and Family Services, said that the bill is aligned with the division’s goal of addressing racial disparities and noted that the agency would already have a process in place for implementing the required training.
SB108 STATUS: The bill passed 20-1 out of the Senate in mid-April and faces a possible vote in the Assembly.
New Miranda warning for minors
As other ongoing juvenile justice efforts attempt to limit entries into the system, Assemblyman Edgar Flores (D-Las Vegas) has introduced a bill that he hopes will help youth offenders better understand their rights when they are facing arrest.
AB132 would establish a plain-language Miranda warning system for minors. In the expanded list of disclosures, a police officer would have to say the following to a minor, before starting an interrogation:
You have the right to remain silent, which means you do not have to say anything to me unless you want to. It is your choice.
If you choose to talk to me, whatever you tell me I can tell a judge in court.
You have the right to have your parent with you while you talk to me.
You have the right to have a lawyer with you while you talk to me. If your family cannot pay for a lawyer, you will get a free lawyer. That lawyer is your lawyer and can help you if you decide that you want to talk to me.
These are your rights. Do you understand what I have told you?
Do you want to talk to me?
The original Miranda warning was established through the U.S. Supreme Court caseMiranda v. Arizona (1966). The case held that police cannot question defendants in custody until they are made aware of their rights. Once those rights have been explained, defendants can voluntarily, knowingly and intelligently waive their rights and agree to answer questions or make a statement.
During a hearing of the bill in early May, Flores said the bill came from the idea that children typically do not knowingly and intelligently waive their rights because they do not have a full understanding of what rights they are entitled to.
Flores explained that he tested the new warning language used in the bill by giving it to teachers at Manuel J. Cortez Elementary School and the K-12 school, West Preparatory Academy, both located in Las Vegas, and having those teachers read both the current and proposed language to children.
“This language that is in Assembly Bill 132 seemed to really go further into the understanding and comprehension of a child,” Flores said during the hearing.
Flores also said that the case law established by Miranda v. Arizona only set the bare minimum and that the state can go beyond that minimum by creating a new set of warnings that is easier for children to understand.
John Piro, a public defender in Clark County, explained that many police officers carry cards that have the Miranda warning language on them, so officers would not need to memorize all of the revised wording.
Piro also said that even if officers are unsure whether the person being taken into custody is an adult or minor, they could recite the new Miranda warning for minors because the revised language fulfills the legal requirements for all people.
AB132 STATUS: The bill passed unanimously out of the Assembly on April 19 and awaits a possible vote on the Senate floor.
Limiting direct file
Juvenile justice advocates have longsought to keep youth offenders within the juvenile system and out of the adult criminal justice system — for certain crimes, a prosecutor may override the jurisdiction of a juvenile court by filing charges against a minor in an adult criminal court in a process known as “direct file.”
AB230, sponsored by Assemblyman C.H. Miller (D-North Las Vegas), would prohibit the mandatory direct file process for children — aged 16 and up at the time of the offense — who were charged with sexual assault involving violence or an offense or attempted offense involving the use or threatened use of a firearm.
During a hearing of the bill in April, Miller called the measure “another big step forward in giving some of our most troubled youth a chance to live a productive life.”
The bill would still permit jurisdiction of the adult court for cases that do not involve “delinquent” acts, such as murder or attempted murder (if the offender was at least 16 years old), some felonies and any offense committed after the person had been convicted of a previous criminal offense.
Miller said that direct file laws were originally created as a response to narratives about heightened youth crime in the 1990s, and he called on other lawmakers to “right the wrongs” created by those laws.
“Much of this legislation stemmed from the devastating narrative that a monstrous wave of mythical creatures known as ‘super predators’ — impulsive, remorseless, elementary school youngsters who packed guns instead of lunches would take over,” he said at a March hearing. “Today, we all know that narrative wasn't true. And it led to more problems than it could have ever solved.”
Kelly Jones, a public defender in Clark County, said that youth sent to adult facilities are more likely to be victims of sexual abuse and to commit suicide and have higher rates of recidivism.
Jagada Chambers, a rights restoration coordinator with a civic engagement advocacy group called Silver State Voices, also pointed out the disparate impact of direct file. Chambers said that of the 219 youths directly filed to the adult system in Clark County since 2013, roughly 200 were children of color.
However, the bill still faces an uphill battle because of its associated costs. A fiscal note from the Department of Health and Human Services states that more resources would be needed to house the increased number of minors that would no longer go to the Department of Corrections. The corrections department estimates the bill would save the agency close to $300,000 over the upcoming biennium.
The estimated cost to Clark County, the only county in the state to have direct files recorded in the past five years, though, would be more than $6.5 million over the next two years — that cost would come from a combination of increased staffing, mental health resources, food and nursing.
The bill also would require the Legislature’s interim juvenile justice committee to conduct a study on the need for and cost of housing young offenders awaiting certification for criminal proceedings as an adult. Miller said the study is necessary because the infrastructure and resources necessary to completely eliminate direct files are not currently available in the state.
AB230 STATUS: Though the measure is exempt from legislative deadlines because of its fiscal impact, the bill has not been discussed since its April 21 hearing. There has been broad support for the measure, however, as 30 lawmakers have signed onto the bill as primary sponsors or co-sponsors.
Jurisdiction over juvenile cases
A bill introduced on behalf of the Nevada Supreme Court, SB7, would also contribute to transferring greater jurisdiction to the state’s juvenile courts.
The bill would ensure that a juvenile court has exclusive jurisdiction in cases in which it is alleged that a minor who is the adverse party to an order for protection has violated a condition of the order. A protective order is typically issued to protect a certain person or entity from harassment, abuse or sexual assault.
The juvenile court would only maintain jurisdiction for violations that involve delinquent acts, meaning some acts, such as murder, would not fall under the jurisdiction of the juvenile court.
During the initial hearing of the bill in early February, John McCormick, an administrator for the state’s Supreme Court, said the legislation is meant to establish statutory clarity where none exists and create a uniform system for jurisdiction across the state.
SB7 STATUS: The bill passed unanimously out of the Senate in mid-April and next awaits a vote on the Assembly floor.
Changes to juvenile housing
Youth offenders certified as adults are housed by the Department of Corrections at Lovelock Correctional Center, a policy that has long been a concern for youth justice advocates, such as Welborn.
“My very first day with the ACLU of Nevada, the first call that I took was a call with a national organization to talk about the boys who are housed in Lovelock and the conditions that they're living in, the inhumane conditions that they're living in, how inappropriate those conditions are for youth,” Welborn said.
Two different Department of Justice investigations announced this year have highlighted issues with the state’s methods of housing youth offenders. One investigation is examining whether staff at two state correctional facilities — Summit View Youth Center and Nevada Youth Training Center — use pepper spray in a manner that violates youth’s rights under the Constitution. The other investigation is examining whether the state unnecessarily institutionalized children with behavioral health conditions in violation of the Americans with Disabilities Act.
As youth advocates and lawmakers seek to improve housing conditions for youth offenders, several bills introduced on behalf of the juvenile justice committee this session would make significant changes to housing policies.
One bill, SB365, would require the state to develop a pilot program for housing youth offenders convicted as adults in a child and family services division facility, rather than in an adult correctional facility.
Welborn said that legislation and other bills that address youth housing are important because of the differences between minors and adults and the time it takes for the youth brain to fully mature.
“Most of these young people will be released at some point in time,” she said. “So ensuring that they have the adequate therapeutic services, educational opportunities, exercise, etc. for their full healthy development, in order to ensure that they will be successful when they leave. And that has to be the right types of interventions and treatment that is age appropriate.”
In past years, there have been roughly 20 youth offenders, at any given time, held at the Lovelock Correctional Center because they were certified as adults in the criminal justice system. The pilot program would move eight of those offenders to the Summit View Youth Center, operated by the child and family services division.
The division estimates the financial impact of the pilot program to be more than $2.3 million over the 2021-23 biennium, with costs based on the projected need to add more beds and staff.
SB365 STATUS: With the costs attached to the bill, the measure next faces a hearing in the Senate Finance Committee; however, no action has been taken since the bill was passed by the Senate Judiciary Committee on April 8. There are no future hearings scheduled for the legislation.
Two other bills would work collectively with SB365 to address housing for youthful offenders.
SB357, a bill from the juvenile justice committee, would require the Department of Corrections to track expenses related to housing youth offenders, meaning the department would need to report all costs associated with the minors living at Lovelock Correctional Center.
SB356, another bill from the interim committee, would require the oversight commission to study the feasibility of housing youthful offenders, who are between 18 and 24 years old and who will be released from prison before reaching 25 years of age, separately from offenders who will continue to be incarcerated past age 24.
“It's also tough to go from taking a kid from the juvenile system and then shocking them into this very hardened adult system, when there's really something in between that works better for those young offenders,” Welborn said. “So that's why all of these bills are a part of a lot larger, broader conversation.”
SB357 STATUS: The bill passed 20-0 out of the Senate on April 13 and faces a potential vote on the Assembly floor.
SB356 STATUS: Though the bill is exempt from legislative deadlines because of its small financial impact, the measure has not been picked up by the Senate Finance Committee since being passed by the Judiciary committee on April 8.
Treating youth found incompetent
One bill from the juvenile justice committee, SB366, would address housing for a narrow portion of youth offenders: those ruled incompetent.
Roose, from the child and family services division, explained that the state does not have in place a facility to help restore children to competency. In a note attached to the bill, Ross Armstrong, administrator of the division, wrote that the agency “does not have the qualified staffing to serve the population with developmental disabilities” — children ruled incompetent typically suffer from an untreated mental illness or developmental disability.
“This is a really complex bill on a complex service and system that would need to be developed in collaboration with sister agencies,” Roose said. “It's just a system that doesn't really exist in Nevada. But, again, we have the opportunity to study and maybe build a solution.”
The actual impact of the bill remains unclear because of differences between the latest version of the bill and comments from the division. However, in line with Roose’s comments, a fiscal note from the division indicates the bill would fund a study to determine the resources needed for rehabilitating incompetent youth offenders.
SB366 STATUS: Though a fiscal exemption has kept the bill alive, the measure has not been acted on since passing out of the Senate Judiciary Committee in early April.
Diverting more youth
One other bill from the juvenile justice committee in line with the efforts to improve housing, SB385, is meant to keep more youth offenders out of the deep end of the juvenile justice system and out of state-controlled correctional facilities.
Though the measure does not seek to directly divert more youth offenders away from state facilities, it would require that the division conduct a study during the interim on which activities and programs help reduce the number of minors committed to state facilities.
“The spirit of this bill is to take savings in our DCFS facility budget, through savings that we achieve through reducing the number of youth coming to us,” Roose said. “And take those funds and divert them to the counties to build up their service array, with the theory being that the more resources that the counties have to provide the services to youth that they need, the less likely they will ever come into a DCFS facility.”
SB385 STATUS: The bill was approved by the Senate Finance Committee on May 12 and next awaits a vote on the Senate floor.
As lawmakers continue to address the “school-to-prison pipeline,” a bill from Assemblywoman Lisa Krasner (R-Reno) would help some juvenile offenders avoid the repercussions of having a criminal record when they become an adult.
The bill, AB251, would establish provisions for a juvenile’s record to be automatically sealed at age 18 and allow those who are 18 or older to petition the court for the expungement or destruction of their juvenile record for any infraction, arrest or crime that was committed as a child that was equal to a misdemeanor or less.
“Young offenders may face serious consequences and obstacles as a result of their juvenile record,” Krasner said during a hearing of the bill on May 10. “A juvenile adjudication can prevent a young person from receiving financial aid for higher education, admissions to colleges, getting a job, joining the military or being admitted into certain licensed professions.”
Krasner called the measure a chance to provide young people with “a fresh start and a second chance,” pointing out that minors are unable to make logical, informed decisions in stressful situations because their brains are not yet fully developed.
AB251 STATUS: The bill passed unanimously out of the Assembly on April 20 and awaits a vote in the Senate.
Structural changes within the juvenile justice system
Though much of the juvenile justice legislation this session focuses on youth offenders themselves, lawmakers also have introduced a few bills that affect the greater justice system and the operations of the child and family services division.
AB448, a bill from the Governor’s Finance Office, would designate criminal investigators employed by the division as category II peace officers. Those investigators were not previously categorized as peace officers in statute. Other officers designated under category II include other criminal investigators, youth parole officers and school police officers.
AB448 STATUS: The measure is exempt from legislative deadlines; however, it has not yet received a formal hearing in any Assembly committee.
Another pair of bills would affect workers within the juvenile justice system. SB21, a bill introduced on behalf of the division, would create a uniform process for background checks for employee hiring across different juvenile agencies and facilities in the state. The other bill, SB317, introduced by Ohrenschall, would allow juvenile justice employees to receive back pay for unpaid leave administered during an investigation, if the employee is found not guilty or has their charges dismissed.
SB21 STATUS: The bill passed unanimously out of the Senate on April 20 and next faces a potential vote on the Assembly floor.
SB317 STATUS: After passing out of the Senate on 12-9 vote in mid-April, the bill awaits a vote in the full Assembly.
SB132, sponsored by Sen. Keith Pickard (R-Henderson), would appropriate $10 million from the General Fund to the Eighth Judicial District in Clark County for support services, including educational support services at The Harbor, a juvenile justice assessment center.
SB132 STATUS: The bill is exempt from legislative deadlines but has not yet received a hearing.
Future justice efforts
Four years ago, lawmakers passed AB472, which established the Juvenile Justice Oversight Commission (JJOC). This session, lawmakers are considering a bill that would, as Roose described the measure, “put a spotlight on the great work of the JJOC.”
SB398 would require the commission to submit a report to the Legislature with an update on the progress of its 5-year strategic plan. The report would include recommendations for any legislation related to both the plan and disparities in the juvenile justice system, such as racial disparities.
SB398 STATUS: The bill passed out of the Senate on a 20-0 vote in mid-April and next faces a possible vote in the Assembly.
While SB398 is meant to bring forward more legislation aimed at improving the juvenile justice system, another bill discussed this session could hamper reform efforts, according to Welborn.
AB443, an Assembly Legislative Operations and Elections Committee bill, would overhaul the structure of interim legislative committees. The bill would, in part, eliminate the interim juvenile justice committee and instead establish a joint interim judiciary committee.
Welborn expressed concern that the initial version of the bill could draw attention away from the work being done to help young people. However, an amended version of the measure would require the interim judiciary committee to allocate five bill draft requests specifically for juvenile justice issues.
“I fear that we lose that momentum, if we abolish that interim committee, or at minimum, don’t establish … some sort of subcommittee to handle juvenile justice issues,” she said. “If we don't, then they're not going to get the attention they need.”
AB443 STATUS: The measure is exempt from legislative deadlines and was last passed out of the Assembly Legislative Operations and Elections Committee on May 13.
As Welborn, among other advocates, fights to garner greater attention for youth justice issues, she noted that reform can take lots of time and work, and she recalls a quote from Ohrenschall, another youth advocate.
“We come to the Legislature wanting revolution, but what we get is evolution,” she said.
The official line from law enforcement is that ticket quotas don’t exist in Nevada.
But on Thursday, members of the Assembly Government Affairs committee were told a different story.
Even though quotas for tickets or arrests aren’t written down in official policy, representatives of police unions told lawmakers that many agencies still operate under a cultural assumption that the more tickets issued or more arrests made, the better.
“The belief is that an officer producing high numbers in these stats is a productive police officer and vice versa, one that is not producing in these areas is not productive,” Las Vegas Metro Police Managers and Supervisors Association vice chair Troyce Krumme said. “If policing were a Fortune 500 company, this belief would be accurate, but policing is not a Fortune 500 company dependent on profits to exist.”
The touchy subject of police quotas would be explicitly banned under AB186, a bill sponsored by Assemblywoman Rochelle Nguyen (D-Las Vegas) and that attracted support from police unions and Republicans during its hearing on Thursday.
Nguyen said that while Nevada police agencies are adamant that quotas don’t exist in the state, the issue was more of a cultural one — meaning that it is easier for law enforcement to quantify things like tickets or arrests over “evidence-based policing practices” that result in more positive interactions between individuals and police.
“You can see some of the pervasive philosophy behind quotas still exists there, when you see police officers making arrests at a certain time of the month,” she said. “You can hear from supervisors and management that it is something that we have just become accustomed to in law enforcement to quantifying that number, because it is easy to quantify that number.”
The text of the bill is straightforward — it would prohibit police agencies in the state from ordering, mandating, or requiring officers to “issue a certain number of traffic citations or make a certain number of arrests over any period.” It also would prohibit agencies from considering the number of citations issued, arrests made, or amount of fines assessed from citations by any individual police officer during a performance review.
Supporters of the bill pointed to a handful of other states — Iowa, Minnesota, Missouri, Montana, Nebraska, Pennsylvania and Illinois — that have taken legislative action to ban or deter the use of quotas.
Nguyen did offer an amendment that would remove language prohibiting police agencies from suggesting that officers issue a certain number of citations or make a certain number of arrests. Backers of the bill said that change would preserve flexibility for supervisors without gutting the intent of the bill.
“I can assure anyone who has a question whether a supervisor can hold their people accountable to work productivity, in light of this bill passing, I can assure the committee that they can,” Krumme said. “They'll have to find new strategies, which is, I believe, the point of reform.”
The bill attracted a wide variety of support — ACLU of Nevada Policy Director Holly Welborn said the legislation would give civil rights organizations the “tools that we need to monitor law enforcement behavior,” pointing to an developing litigation in Rhode Island brought over similar language in that state’s law.
The libertarian-leaning Nevada Policy Research Institute also supported the proposed legislation, saying it evoked a similar issue raised with police abuse of civil asset forfeiture law.
“When police are incentivized, financially or otherwise, to locate potential criminal activity, it is lower income minority neighborhoods which suffer most,” NPRI lobbyist Daniel Honchariw said.
But police departments generally testified against the bill, saying that they were not supportive of quotas but didn’t want to be stripped of supervisory oversight of rank-and-file officers.
“The taxpayers are paying the salary for this officer and we expect them to work,” Las Vegas Metropolitan Police Department lobbyist Chuck Callaway said. “Although we don't have a quota, and we're not telling them to write X number of tickets, a supervisor needs to be able to have that conversation with employees that they need to get out and address crime that is occurring. And often that requires citations to be written and it requires arrests to be made.”
Nguyen — who is also sponsoring a bill that would decriminalize traffic tickets — said she was prepared to continue working with opponents of the bill, adding that the larger issue of over-policing wouldn’t be fixed with just one piece of legislation.
“Will this completely eliminate that? Probably not,” Nguyen said. “But I think it is a very good step in the right direction, in giving guidance on what our policy as a state to curb these negative, unnecessary, policing for profit interactions with our community.”
Lawmakers are considering a bill brought forward by Attorney General Aaron Ford that would limit but not ban no-knock arrest and search warrants, though a proposed amendment with further restrictions has complicated support for the legislation.
“We know that in certain circumstances, no-knock warrants can be problematic,” Ford said in a legislative hearing on Wednesday. “One of the most recent examples of such a tragedy is the killing of Breonna Taylor in Louisville, Kentucky… Her death gave rise to me bringing this bill forward.”
After Taylor, a 26-year-old Black woman, was shot and killed by a police officer during a late-night raid at her apartment in March, calls for police reforms grew across the nation, including a push against no-knock warrants.
When executing a warrant, officers typically follow the knock-and-announce rule, by which officers must first knock, identify themselves and their intent and then wait a reasonable amount of time before entry.
No-knock warrants are used to “capitalize on the element of surprise,” Ford said. In 2003, the U.S. Supreme Court upheld the use of no-knock warrants, stating that “the obligation to knock and announce before entering gives way when officers have reasonable grounds to expect futility or to suspect that an exigency, such as evidence destruction, will arise instantly upon knocking.”
Discussions of the legislation, SB50, became more contentious during the Wednesday hearing following the proposal of an amendment to the bill.
The proposed amendment, introduced by the American Civil Liberties Union of Nevada and the Nevada Attorneys for Criminal Justice, outlines more specific requirements for an application for a no-knock warrant than the original text and includes specific instructions for the execution of a no-knock warrant.
“Despite our support for this amendment, we maintain our position that an outright ban should be the public policy of the state,” Holly Welborn, policy director for the ACLU of Nevada, said in a statement. “No-knock warrants are a staple of this unjust system and the failed war on drugs. They turn communities of color into warzones by allowing officers to enter homes without announcing themselves.”
Some groups, including the Nevada Sheriffs’ and Chiefs’ Association and the Clark County district attorney’s office, changed their position from in support of the bill to neutral during testimony because they are still working through the language of the amendment with the attorney general’s office. And some of the language in the amendment raised concerns among legislators, including Judiciary Committee Chairwoman Melanie Scheible (D-Las Vegas), who works for the Clark County district attorney’s office.
Ford said the most contentious section of the amendment is an exclusionary rule, which could prohibit use of evidence gathered through a no-knock warrant if all guidelines for securing and executing the warrant are not followed.
Many supporters of the bill and the amendment spoke during the meeting about the death of Breonna Taylor and the history of no-knock warrants.
“The use of no knock warrants began in [the] 1980s as a part of the failed war on drugs and police militarization,” Christine Saunders, policy director for the Progressive Leadership Alliance of Nevada, said. “Countless stories, like Breonna Taylor's, who was unjustly murdered as a result of unnecessary no-knock warrants and systemic racism, exist across the nation. Senate Bill 50 would create a high threshold for law enforcement to justify why a no-knock warrant is necessary.”
Others in the meeting voiced frustration over the limited time for testimony. Those who called in to provide testimony were each given two minutes to speak, and 10 minutes each was allotted for testimony in support, in opposition and neutral. One woman, who attempted to voice support for the bill during neutral testimony, was cut off shortly after she began speaking.
“I think it's unacceptable that we only get 10 minutes to talk, especially for impacted persons,” she said.
The hearing was the first for the bill and did not include a vote, as Ford said he plans to meet with stakeholders to hash out remaining points of dispute. He also noted that the bill would not completely prohibit the use of no-knock warrants, but rather allow for their use in situations where one is necessary to ensure someone’s safety or to prevent the destruction of evidence.
However, the bill would also restrict the types of crimes no-knock warrants are used for by prohibiting their use for misdemeanors, property crimes and low-level drug possession.
“Nevada's police have done a good job of policing themselves on the use of no-knock warrants,” Ford said. “However, the restraint we have seen exercised here is the result of internal policy, not law. SB50 seeks to enshrine these policies into law by providing that no-knock warrants can only issue in very limited circumstances.”
The bill is one of several pieces of proposed legislation derived from the sustained protests against police brutality last year, a list that also includes Sen. Dallas Harris’s (D-Las Vegas) bill draft request aimed at policing reform.
While the state budget is sure to dominate discussions during the ongoing legislative session, lawmakers haven’t shied from queuing up some heavy-hitting proposals for criminal justice reform.
They plan to take another shot at abolishing the death penalty, work to decriminalize traffic tickets and implement policing measures such as tracking use of force incidents and making it easier for people to sue officers when they believe their rights were violated. Meanwhile, court decisions since the 2019 session have forced lawmakers’ hands after they previously hit an impasse on whether to abolish cash bail.
“We are going to do everything in our power to ensure that that is a focal point of this session and taken very seriously by lawmakers and to ensure that it doesn't get lost in the sea of what is sure to be a session based on the budget,” said Holly Welborn of the ACLU of Nevada.
The 2019 session was viewed in large part as the “criminal justice session” because of a major bill — AB236 — that sought to reduce the prison population through a series of changes to penalties for lower-level crimes and by increasing access to diversion programs.
Representatives for district attorney’s offices said they were in the Legislative Building more than ever before trying to hammer out the details of that heavy lift.
But momentum for action on the issue of police reform swelled last summer when the death of George Floyd in Minneapolis touched off a new wave of Black Lives Matter protests in Nevada and elsewhere. Lawmakers limited police use of chokeholds and rolled back some of the protections afforded police officers who are accused of misconduct, but activists said they want to hold lawmakers to their statements that the legislation from the special session was just a start.
“We had a very modest step forward. Ending chokeholds in Nevada was a 35-year effort, and we finally did that in the state. But what is that worth if there aren't layers of accountability?” Welborn said. “What does that mean if law enforcement has no neutral body who is overlooking and taking a second look at whatever investigations might come out? What does that mean if police unions are able to to shield individuals from accountability?”
Below are some of the themes Nevadans can expect at the forefront of the legislative session.
There are already two bill draft requests seeking to abolish the death penalty in Nevada. A bill to end capital punishment got a hearing in 2017 but died, and the concept was not even brought up for discussion in 2019.
Members of the ACLU nationally and Nevada were “completely in mourning” over a string of federal prisoner executions in the final days of the Trump administration, Welborn said. She called capital punishment a “draconian policy that should no longer exist in state law” and pointed to problems the state has had implementing it, including a protracted legal battle over execution drugs when the state moved in 2018 to put Scott Dozier to death.
“We don't want to be in a situation where — and I doubt that the governor wants to be placed in a situation where — we have an execution order that goes out in the state,” Welborn said. “We have pushed for it every session but we're doing a stronger push because now is the time.”
Sisolak said during his gubernatorial campaign that he generally opposes the death penalty except in extreme cases, and a poll by The Nevada Independent in 2017 showed a majority of Nevadans in support of keeping capital punishment legal. But more recent data has not yet been released, and Sisolak’s office on Friday did not commit to signing or vetoing such a bill if it came to his desk.
While the Assembly is more favorable to abolishing capital punishment — even putting the official committee stamp of sponsorship on the proposal — Senate Majority Leader Nicole Cannizzaro (D-Las Vegas) was noncommittal recently when asked whether she would give such a bill a hearing in the Senate.
Cannizzaro works for the Clark County district attorney’s office. Prosecutors say they will be opposing efforts to end the death penalty in Nevada this session, as they have in the past.
“The majority of Nevada voters support capital punishment in the right circumstance,” said Jennifer Noble, who represents the Washoe County District Attorney’s Office. “The Nevada Supreme Court says it’s constitutional, U.S. Supreme Court says that, and our position is just that the voice of the jurors who sat and heard that case should be honored, not second-guessed by our Legislature.”
Rochelle Nguyen (D-Las Vegas), the vice chair of the Assembly Judiciary Committee, said she thinks the conversation will be broader than what it was in 2017, potentially including faith-based, economic groups, counties and others to consider implications of the policy.
“I think in the past it has always been, like, either you were for or against it,” she said. “I think even between 2017 and going into 2021, the conversation is including a lot more people and I think that is important.”
Sen. Dallas Harris (D-Las Vegas) said she took cues from Colorado to develop an ambitious slate of 10 policing reform changes that will be rolled out in two separate bills.
After what critics viewed as a heavy-handed police response to protesters over the summer, Harris wants to bar police from shooting rubber bullets at people’s torso, head or back.
She also wants to require police to give ample warning and space for people to disperse before deploying tear gas.
“It's not a ban, necessarily. But it makes it very clear that ‘hey, you know, this squeezing people in on both sides and then tear gassing them — no,” she said.
She also wants better recordkeeping on incidents of police using force. Harris pointed to an interview a Metro deputy chief gave to KLAS-TV indicating that she had access to a dashboard where she could see — for every officer in the department — how many complaints had been lodged against them, how many use of force incidents they were in and how many traffic incidents they were in.
“We need to see that,” she said. “That way we can track trends.”
If that’s not feasible because of cost, she at least wants police departments in the state to report data to the federal government. A federal database on use of force incidents only reflects data from agencies representing about 41 percent of officers in the country.
Harris is aware that some reports may be unsubstantiated and said she’s mindful of not sabotaging someone’s career with false information, but is more concerned about aggregate numbers.
“These aren't designed to punish anyone,” she said. “That's the very nature of something that’s systemic. It's not about you, or how great you are, or your partner is ... it's about reforming the whole system so that it operates a little bit better.”
She hopes to require more education of police officers, too. Rather than just a high school diploma, she wants at least an associate’s degree or two years of military service as a prerequisite.
“There's a strong correlation between education and remaining calm under pressure, critical thinking skills, handling stressful situations, being exposed to people who are a little bit different than you just by nature of being on a school campus,” she said.
Another idea in her bill is either a pilot program or a study on crisis response call centers, in hopes that 911 is not a caller’s only option when help is needed. An alternative could connect people in distress to agencies that could dispatch trained mental health professionals to the scene; she’d like to study whether police officers should accompany those personnel.
She compared it to how the gas company is dispatched to the scene of a gas leak because they are best suited to the call, even though a leak is a dangerous and potentially life-threatening emergency.
“Why are we sending police officers to gas leaks?” she said. “That's what I feel like we're doing when it comes to the homeless man who is in front of your business, or when it comes to the person who's clearly just experiencing a mental health crisis.”
She wants to put limits on the use of force, including the presumption that someone is not a deadly threat if they are pregnant or elderly. That presumption could be overcome with proof.
If an officer fails to reactivate a body-worn camera as required by law, Harris proposes there be a “permissive inference” that the missing footage would have reflected misconduct. A permissive inference is a suggested conclusion for a jury but they are not required to make that finding, and it would apply in investigations for legal proceedings but not in criminal proceedings against an officer.
She’d also like to create a “state cause of action” that can be invoked if a person believes an officer violated their rights. If the person is just seeking a policy change, an officer could not invoke “qualified immunity” — the principle that government officials are shielded from civil liability unless the person can prove the officer violated clearly established rights, usually through a previous and very similar case. But the officer could use that defense if the person is seeking monetary damages and if the officer had a good faith belief at the time of the conduct that they were not violating the law.
Her bills also would call for collecting data on traffic stops and have UNLV analyze the findings to see if they are more common in communities of color.
She also wants police departments to establish an early warning system and intervene in some way if there are red flags for a particular officer, such as a high number of citizen complaints, a high number of use of force incidents, or instances of improper detentions or searches.
“Let's give them some more training, maybe it's more intense supervision, before that bias manifests itself in a way that's not reversible,” she said.
And finally, she wants to ban restraint chairs that are used in jails.
“Sometimes they strap people in very uncomfortable positions. They'll leave you there for days. It's just inhumane,” she said.
Harris said she is trying to meet with as many people as she can to get feedback on her ideas before they go primetime. Her only concern is that the issue may be losing momentum, and she’s reminded advocates that with the budget and redistricting taking up oxygen, she may need them to fight a little bit harder for these changes.
“My focus is trying to keep it in the forefront,” she said. “We don’t see the protests in the streets every day like we did. But the issue just — it hasn't gone away.”
Adjustments to 2019 Reforms
One of the capstone accomplishments of the Democrat-led Legislature in 2019 was the passage of AB236, an omnibus bill filled with law changes that ultimately sought to reduce the prison population in Nevada and avert hundreds of millions of dollars in corrections spending over the coming decade.
It was the culmination of intensive data analysis conducted by the Crime and Justice Institute and work in the interim from the diverse membership of the state’s Advisory Commission on the Administration of Justice. The bill, which made a variety of changes that headed off some parole revocations and eased some drug crime penalties, passed on party lines in the Assembly and on a broader, bipartisan basis in the Senate in spite of prosecutor opposition.
Prosecutors note that much of the bill took effect only six months ago — meaning it may be both hard to tell its full effect, and lawmakers may be hesitant to make significant changes as they watch for how things play out. The male prison population in Nevada in November was only about 84 percent of what it had been projected to be, although it’s unclear how much of that can be attributed to the bill and how much might be linked to unusual inmate movement trends related to COVID-control measures.
“We're still working out a lot of kinks,” said John Jones, who represents the Clark County district attorney’s Office. “Some issues have sort of bubbled to the top.”
But there are a few changes prosecutors will be pushing for this session. One is about parole revocation hearings — prosecutors say the bill in some ways tied the hands of judges.
“It used to be a judge could revoke for any violation of probation,” Jones said. “But after 236, a judge is limited in what they can do, depending on what the violation is that's in front of them at the time. So we've had some defendants show up in court with some pretty serious allegations … that don't meet the requirements for actual revocation.”
One example is that while felons are prohibited from having a gun, people with gross misdemeanors are legally allowed to have guns. But some people with gross misdemeanors are on probation and are prevented from having a gun as a term of their probation; prosecutors think it should be easier to revoke their probation if they are found to have one.
“So far, the conversations that we've had with legislators — they've been open to changes, but I think because the bill is so new, they don't want to make any drastic changes right now,” Jones said. “There's some desire to defer, at least until [the] 2023 session, so we can really have a longer period of time to see how the bill actually plays out.”
The Washoe County district attorney’s office wants to study the effect of the bill on the community and public safety at large, rather than just on incarceration numbers. They’ve obtained a grant from the Crime and Justice Institute and are trying to figure out what metrics to be using to quantify it over the next few years.
“With the pandemic, that's sort of hard to quantify because people are staying in their homes,” said Noble. “Is this making our communities safer? Is it an improvement? Do we have better criminal justice outcomes? And that's a question that only time is really going to answer.”
Welborn said she’s also curious about the legislation’s impact, and how much of the current decrease in the prison population derives from the bill as opposed to the unusual trends brought by the pandemic.
“I think it's too soon to tell what the long term impact will be,” Welborn said. “This is going to be over the course of, I believe, a decade where we will really see that large dollar impact and large population impact.”
Advocates have been pushing for years to get rid of cash bail, saying the practice leads to poor people languishing in jail because they can’t afford bail while richer people leave almost immediately. But negotiations on bills to reform bail broke down in the 2019 session, and Cannizzaro pushed a resolution to study the issues surrounding bail as a compromise to keep the issue alive.
“We look forward to shining a light on some of the inequities in the criminal justice system that bail has wrought and bringing that to this body next session to, hopefully, find a solution,” public defender John Piro testified at a hearing for the resolution in 2019.
In a move that upped the urgency of the changes, the Nevada Supreme Court issued a ruling in April 2020 that required significant guardrails as to how the state administers bail. The ruling came in the case of Jose Valdez-Jimenez, who was assessed a $40,000 bail that he couldn’t afford after stealing merchandise from a Victoria’s Secret in Las Vegas.
An interim legislative committee over the summer advanced a list of 16 recommendations for reforming the way the state administers bail, in large part incorporating the decisions from the Supreme Court. The committee has five bill draft requests codifying the recommendations in the committee’s final report, although the actual bills have yet to be introduced.
Among them are requiring bail hearings to be conducted in a reasonable amount of time and requiring the use of federal poverty guidelines when determining a defendant’s ability to pay bail.
Another recommendation puts the onus on the state to prove, by clear and convincing evidence, that the conditions of release they’re seeking are the least restrictive needed to ensure community safety and the defendant’s return to court.
And another proposal requires quarterly reporting of certain information about bail, including data about who is in jail and why, and reports about people who are held on bail less than $2,500 for more than a week.
“A lot of the arguments that we have had in the past were answered by the Nevada Supreme Court in the Valdez-Jimenez decision,” Jones said. “What we're really arguing about is the implementation of the Supreme Court's decision.”
Among those points is how the Legislature should define a “prompt” hearing. Prosecutors say they don’t want to violate a defendant’s rights, but also want to make the requirements feasible for rural courts that do not have the resources to do what Clark County has done — hold initial appearance hearings twice a day, every day of the week and every week of the year.
Prosecutors also want to secure the ability to ask for a short continuance that might extend the time someone is behind bars when they need more time to work on a case.
“Sometimes we need more time when our spidey sense goes up about a defendant based on what we've read,” Jones said.
Decriminalizing Traffic Tickets
Nguyen wants to re-up a discussion about decriminalizing traffic tickets. Under the current system, an unpaid ticket can escalate to an arrest warrant, leading to people being jailed and facing the related consequences for nothing more than an overdue fine.
That can be particularly life-altering for undocumented immigrants, with an unpaid ticket turning into an interaction with immigration authorities through the jail and potentially deportation.
During the pandemic, some local jurisdictions have eased their rules on traffic violations. The Las Vegas Justice Court suspended enforcement of about 270,000 outstanding traffic warrants in April, meaning people would not be arrested for them if stopped.
Nguyen said she hopes to draw on experiences like those that were driven by the pandemic, as well as that of Carson City, which in 2019 stopped adding additional warrant fees and stopped arresting people on the basis of a traffic warrant.
“I was kind of inspired to see that they were able to do it, they're still standing,” she said. “It's convenient when you have someone who tried to do it on their own and we're being innovative, because they can tell us what some of the pitfalls are.”
Prosecutors say they do support the idea of making traffic tickets civil offenses rather than criminal.
“We've looked at some other jurisdictions that do it and I think we can make that work here in Nevada,” Jones said.
Under a civil model, the district attorney’s office would be out of the business of prosecuting traffic offenses, and instead, anyone seeking to contest their ticket would show up to court, along with the officer, and the judge would make a determination based on the preponderance of evidence. Prosecutors say they rarely have the bandwidth to put their full effort into minor traffic cases anyway.
“We're focused on the robberies, the murders, the sex assaults, the serious property offenses,” Jones said. “Oftentimes traffic doesn't get the attention that maybe it should, because our priorities are focused elsewhere, our eyes are elsewhere due to our high caseloads.”
One snag is that traffic ticket fines fund court operations and local government operations. They would have to find another revenue source if income from tickets dropped.
“I think most people would agree it's a horrible way to fund your judiciary, but that's where we are right now,” Jones said.
But, prosecutors say, it’s unlikely that there are large swaths of people who would only pay their fines if they had jail time hanging over their heads, and would flout the penalties under a civil system.
Nguyen said the current system — with penalties that grow if they go unpaid — can even make people less inclined to pay an overdue fine.
“If you get a $200 ticket, and then you miss a payment and all of a sudden that's a $550 ticket, you're probably less inclined or don't have the resources to pay the $550 ticket,” she said. “But if the ticket remained at $200, you might be more inclined or might be more able to do so.”
The strictures of Marsy’s Law, a constitutional amendment approved by voters in 2018 that requires more notification of crime victims during the proceedings against the person they’re accusing, can sometimes be at odds with the goal of holding bail hearings more promptly.
The Washoe County DA’s office is using electronic notifications — including texts and email depending on the victim’s preference — to notify victims of hearings. But prosecutors said it’s been a challenge to have the kind of system where victims can easily log on and understand what’s happening with their case.
“I think people do default to us to be the de facto implementer of Marsy’s Law, and it is just as much the obligation of the court as it is our office,” Jones said.
The ACLU of Nevada has several concerns about Marsy’s Law, including whether requirements to notify victims about court proceedings will interfere with the need to hold initial hearings within 48 or 72 hours.
“If that indeed happens, then that's a clear rights violation,” Welborn said.
There’s also concern about how the law’s requirement that victims be paid full and timely restitution has led to large cuts of money sent to inmates by their loved ones being diverted to restitution. Families complained that the prison system’s initial 80 percent garnishment was too oppressive and prevented inmates from getting funds they needed to buy basics from the commissary; the rate was recently reduced to 50 percent.
“What limitations are we going to place on that implementation?” Welborn asked. “I think we're getting closer and closer to needing the courts to weigh in on exactly what it is that law means.”
Inmate advocates are asking Gov. Steve Sisolak to order the liberation of prisoners who are close to their release dates after COVID-19 cases within the Nevada Department of Corrections (NDOC) have nearly quintupled in the last two weeks.
In a virtual press conference on Thursday, representatives from the ACLU of Nevada, the Mass Liberation Project and family support group Return Strong called on Sisolak to use his emergency powers to reduce the prison population, which stands at nearly 14,000. They want the release of people within six months of their release date, or those two years out from their release date if they are considered by Centers for Disease Control and Prevention criteria to be particularly vulnerable.
“This isn't about partisan politics. It's about fighting for the survival of people and seeing the humanity in those who are not defined by the worst thing they've ever done,” said Leslie Turner of the Mass Liberation Project, which is affiliated with the Progressive Leadership Alliance of Nevada. “And we all should believe that COVID-19 shouldn't be a death sentence for anyone, including those who are incarcerated.”
Sisolak provided a statement to The Nevada Independent on Friday praising the state’s “creative solutions” to the matter — including a new $10 million contract with Quest Diagnostics funded by CARES Act dollars that aims to reduce turnaround time for tests. Testing inmates accounts for 26 percent of the testing volume at the Nevada State Public Health Laboratory.
But he did not directly answer calls for releasing more people early and instead pointed to an expected announcement about further coronavirus mitigation measures.
“The Governor remains deeply concerned about the increased spread of COVID-19 in our communities, and that includes spread from the communities making its way into vulnerable populations,” his office said in a statement. “In addition to taking immediate actions to address outbreaks in our facilities, we must also address the root source of the problem: the community spread that has reached wildfire levels throughout the State. As mentioned earlier this week, he will be announcing a mitigation plan in the near future.”
The request for depopulation is similar to calls made by the ACLU as early as March, but has intensified as an outbreak at Warm Springs Correctional Center in Carson City led to 470 inmates testing positive as of Thursday, which is 90 percent of the facility’s population. On Friday, the state announced that 79 inmates at the Humboldt Conservation Camp in Winnemucca had tested positive for COVID-19, or 83 percent of the population.
Nine are reporting symptoms, including chills, cough and loss of taste and smell. Six of the 11 staff are also out with COVID-19 or after being exposed, and relief workers are being assigned from Lovelock Correctional Center, according to the agency.
One inmate at Carlin Conservation Camp near Elko has tested positive, and results for the rest of the inmates are pending.
Systemwide, the prison agency reports 971 cases on a state dashboard — more than four times the case count from Nov. 6, when 208 inmates and staff had tested positive.
NDOC has suspended visitation, conducted rounds of widespread testing and lists a series of policies on its website aimed at preventing the spread of COVID, including screening employees for symptoms, requiring masks and sanitizing surfaces. But Nikki Levy, an attorney with the ACLU of Nevada, said “we have not really gotten much of a substantive response” from state officials to their calls for a more dramatic response to the pandemic within the prisons.
Efforts to identify larger groups of inmates who could be released early stalled this spring and led to no large-scale release. And after the Board of Pardons Commissioners — headed by Sisolak — asked the agency to identify people who could be eligible for early release, prison officials said they have only deemed two people to qualify.
During the press conference, women with incarcerated family members described the fear they felt for their loved ones.
“I think for a little while we were deceived into thinking maybe they did have it under control. We were focused on when visiting would reopen and now we are looking at ‘will he make it out alive?’” said one woman, who gave her name as Shasta and said her partner was incarcerated in Warm Springs.
Advocates pushed back against criticism expressed by NDOC Director Charles Daniels in April that “we can't just see this as an opportunity … to further or to hasten sentencing reform or criminal justice reform if we don't have a plan.”
“This is not an attempt to try to expedite some sort of quote criminal justice reform agenda. This is a human rights crisis occurring in Nevada prisons,” said Holly Welborn, policy director at the ACLU of Nevada. “And if we can't be moved by the stories of people who are baring their hearts for us today, consider how this is going to impact the community at large, with correctional officers who likely were in the community.”
Jodi Hocking, founder of Return Strong, said the prison system should be more proactive about communicating information about their response to coronavirus and the condition of inmates, such as how many people are hospitalized for COVID-19. She said Washington state provides more granular information about coronavirus in prison facilities.
“I just don't want us to leave this meeting and think that this is normal, that this is what is expected, that NDOC has to hide behind the screen and keep everything secret. That is not normal,” she said. “Now we have to hold them accountable because they didn't do that themselves.”
As Nevada lawmakers publicly debate cutting $1.2 billion from the state’s budget, the business community, progressive activists and unions are behind the scenes pressing lawmakers to consider a host of proposals from criminal justice reform to liability protection during a second special session.
Although lobbyists and members of the public have been barred from the physical legislative building, a host of interest groups are making their demands known and pushing for their priorities to be included in the proclamation that will establish the parameters of what lawmakers can consider in their second special session. Gov. Steve Sisolak is expected to call the next session once lawmakers finish finalizing cuts to the state budget during the first special session, which started Wednesday.
In announcing the first special session, Sisolak said that he planned to issue a subsequent proclamation to “consider policy items that rise to the extraordinary occasion of a special session.”
Although Sisolak and top legislative Democrats have previously expressed interest in taking up topics related to police misconduct and criminal justice reform, a host of other potential special session topics have bubbled to the surface, including efforts by some of the state’s top businesses and casinos to include liability protection for businesses against COVID-19 related lawsuits. Other possible topics include election reform and worker protections.
Here’s a look at proposals that are being pushed for behind the scenes.
COVID liability protection
A consortium of powerful business groups — including the Nevada Resort Association, Vegas Chamber of Commerce, Nevada Builders and Retail Association of Nevada and others — launched the hashtag #ProtectNVJobs on Saturday to promote adding liability protections for businesses against COVID-19 related lawsuits.
But the effort to bring the topic of COVID-19 related liability to the special session has been in the works since before Saturday.
Backers of the now-public effort — which is also mirrored on a federal law — say it’s necessary to protect against frivolous lawsuits aimed at businesses struggling to reopen their doors and attract customers amid the state’s new health and safety requirements during the reopening process.
“Businesses have been financially hit hard by this pandemic. We need to make it easier - not harder - for them to recover and preserve jobs,” Vegas Chamber president and CEO Mary Beth Sewald said in an email. “The Vegas Chamber is urging the Governor and legislators to pass this legislation as soon as possible as a major step forward in rebuilding our fragile economy,"
Legislators in both political parties have said they’re open to the concept. Democratic Assemblywoman Teresa Benitez-Thompson said on a call with members of the Reno-Sparks Chamber of Commerce prior to the legislative session that many lawmakers had a “comfortable level with ensuring that we have language in the law so that employers are protected,” while keeping in place gross negligence standards.
Republican Sen. Heidi Gansert, who sent out a campaign email prior to the start of the special session last week listing “COVID19 liability reform” as a pressing topic, said Monday that “the longer businesses are open without protection, the greater the threat.”
She added that she had heard radio advertisements for potential lawsuits against long-term care facilities related to their COVID-19 response, and wanted to avoid the issue by nipping it in the bud.
“If there's an opportunity, we're anticipating that the lawsuits will follow,” she said.
The Nevada Resort Association, the politically powerful trade group representing many large casino gaming properties, has also publicly backed the concept of liability protections related to the coronavirus.
The group’s president, Virginia Valentine, sent a letter to Sisolak last Wednesday asking the governor to take up liability protections during the upcoming legislative special session, writing that the “risk of frivolous litigation that mounts each day threatens the Resort Industry’s continued operations.”
“We ask you to consider enacting a targeted and limited safe harbor from liability for companies that implement strict public health guidelines related to the transmission of COVID-19,” she wrote in the letter. “Nevada businesses cannot wait any longer for purported federal action.”
In a statement sent Monday, she said that the resort association was concerned with the “threat of opportunistic lawsuits that would derail our ability to bounce back from the economic crisis and further threaten Nevada jobs.”
“Given the importance of this issue and the need for immediate action, we’ve asked the Governor and legislative leaders to bring liability protections up for discussion during a special session,” she wrote in an email. “Without liability protections, large and small businesses face a daunting choice of closing or staying closed and risking bankruptcy or reopening and risking a business-crippling lawsuit – any of which will only further damage Nevada’s already fragile economy.”
But the Nevada Justice Association, a trade group composed of trial attorneys, sent a separate letter to Sisolak on Friday urging the governor to not “incentivize unsafe practices,” and to avoid rewarding “those businesses who engage in unsafe practices and penalize Nevada workers, consumers and tourists who contract COVID-19 because of those unsafe practices.”
The letter stated that the association wants to find common ground with the state’s business community on the issue, and included several proposals including:
A heightened fraud-level pleading standard, which would require lawsuits be pled with “particularity,” with the intent of allowing frivolous lawsuits to be more easily and summarily dismissed
Creating a “rebuttable presumption” standard, meaning that any business following the rules is presumed to have no liability, and thus immune from negligence lawsuits
Allowing workers who return to work and contract COVID-19 to have a rebuttable presumption that they obtained the virus from their workplace. The group said that would ensure contracting COVID-19 is covered under the state’s worker’s compensation law, and that it “will provide comfort in knowing they will be cared for were they to become sick upon returning to work.”
Attorney Matthew Sharp, who serves as a board member on the group, said the state’s current laws around negligence were adequate to cover any potential lawsuits related to the pandemic, and that the state had bigger issues to face during the current pandemic.
“You're searching for a problem that already has a solution,” he said. “That's why I don't think a special session is necessary; the law already provides the solution.”
Several left-leaning groups also panned the proposal, saying that legislators should focus on protections for workers and not cover for businesses that do not take proper precautionary and safety steps. Progressive Leadership Alliance of Nevada Executive Director Laura Martin said her organization was staunchly opposed to the proposal, instead saying legislators should take up topics such as police reform, vote-by-mail, ballot collection for tribes and evictions.
“Protections for unfounded liability already exist and it’s up to the courts to decide whether or not a lawsuit is warranted, not for-profit businesses,” she said in an email. “Nevadans are dying and the only thing these corporations care about are being shielded from lawsuits. What a shame.”
A spokeswoman for Sisolak did not return an email asking whether the governor planned to include that item on a special session proclamation.
Adolfo Fernandez bill
Casino workers, however, are pushing their own bill headed into the second special session.
The Culinary Union, which represents 60,000 workers in Las Vegas and Reno, has proposed legislation that would require enhanced cleaning procedures, mandatory social distancing, free testing for all workers before going back to work or after being exposed to someone with COVID-19, temperature checks for workers, detailed plans for how to respond when a worker contracts the virus or is exposed to someone who has it and additional safety training for all employees.
The union has nicknamed the legislation the Adolfo Fernandez Bill after the 51-year-old utility porter at Caesars Palace who passed away last month after contracting COVID-19. His daughter, Irma Fernandez, shared in a statement the concerns her father had about returning to work amid the ongoing coronavirus pandemic.
“My father would tell me every day ‘I’m gonna get sick - the company is not keeping us safe.’ He would constantly tell me how stressed out he was,” she said. “He would call me on his break all the time to tell me about what was going on and how he was feeling. He would say that he didn’t want to go back to work, but he had to because he needed to financially support his family.”
Nineteen Culinary Union workers and members of their family have died after contracting COVID-19, according to the union. In advance of the special session, Geoconda Argüello-Kline, the union’s secretary-treasurer, sent Gov. Steve Sisolak a draft of the bill and a letter urging him to place it on the agenda for consideration.
“In these uncertain times, it is imperative that we protect Nevada’s workers, tourists, and economy,” Argüello-Kline said “Another economic shutdown could have disastrous effects on our economy which would make recovery even harder. We believe that the measures in the Adolfo Fernandez Bill would put Nevada on the path towards a full economic recovery.”
The finer details of the bill, however, are not yet clear. Neither the Culinary Union nor the governor’s office responded on Monday to The Nevada Independent’s request for the union’s draft language of the bill.
Advocates working on expanded voting access want to see legislators adopt policies that vastly expand mail-in voting and send a postage-paid ballot to all active voters and potentially inactive registered voters, too.
While Secretary of State Barbara Cegavske ordered the mostly mail approach for the June primary, the setup of November’s election remains undetermined. Clark County Registrar Joe Gloria is open to repeating the mostly mail election, but advocates don’t want the policy enshrined only in emergency directives or at the discretion of individual clerks.
“Then it kind of gives everybody room for interpretation,” said Emily Zamora of Silver State Voices, a voter rights advocacy group.
Zamora said advocates are also interested in expanding the number of ballot drop-off sites for voters who are uncomfortable dropping their mail-in ballot in a mailbox. Voters had the option of dropping off their ballots at in-person early voting and Election Day sites, but Zamora said the drop-off box plan wouldn’t necessarily align with the early voting sites.
Another ask — her group is hoping for policies that would allow people to turn in ballots for people beyond just themselves and their immediate family. Rules against “ballot harvesting” prevent that, but Zamora said it adversely affects people who live in remote areas including Indian reservations, which have been in lockdown for some of the pandemic.
She said she’s received positive cues from multiple legislators that there’s an appetite to take up election reform during a special session.
“I think folks overall did walk away from the primary election really with the understanding that we can do better for the general,” she said.
Criminal justice reform
Republican Assemblyman Tom Roberts, a former Las Vegas Metropolitan Police Department assistant sheriff, said he hasn’t seen language of any proposals from Democratic leadership as of Monday, but said he believed draft language of a proposal existed and was being worked on.
Nonetheless, Roberts said that there were a litany of possible changes that could garner bipartisan buy-in, including:
Adding more community members to various law enforcement advisory boards in the state
Changes to the state’s Peace Officer Standards and Training agency to add citizen participation and review misconduct
Changes to use-of-force policies, including limits on vascular neck restraints and requiring training on “duty to intervene.”
Roberts said that the truncated nature of special sessions made it hard to delve into complex policy issues in a limited time. Additional pressure to not draw out a second special session comes from the lack of input from the public owing to limits on entering the physical legislative building, as well as the recent COVID-19 positive test of a legislator.
“There might be some things that you might be able to know right away from feedback that you got from stakeholders on both sides of the issue, that you might be able to find some middle ground and make some changes now, and then come back for some more substantial discussion about some of the more complex issues,” he said on Monday. But, you know, I think there could be room for some, but really some of the really more complex things, we probably should or could wait.”
Holly Welborn, policy director at ACLU of Nevada, said the reforms her organization is seeking to get passed during the special session don’t even scratch the surface of criminal justice reform needed in Nevada. But she said it would be “more than a disappointment” if legislators did not pass something in the wake of nationwide Black Lives Matter protests.
“The community is demanding action, and if there isn’t action at a time when this group of legislators is convened, that is going to be a failure for the community,” she said.
One of the most discussed potential reforms is a repeal of provisions in SB242 — a bill sponsored by Democratic Senate Majority Leader Nicole Cannizzaro in the 2019 session that, among other things, bars comments police officers make during an internal investigation from discovery in any civil litigation stemming from misconduct. With officers seldom facing criminal charges when people die at the hands of police, removing the provision would make it easier to hold officers accountable civilly.
“They’re definitely open to discussing the problems with the bill,” she said about legislative leaders.
ACLU leaders are also calling for a ban on chokeholds, mandatory collection of data on police activity in Nevada by demographics, and legislation that would mandate independent, rather than internal, investigations into police misconduct.
While the ACLU has signed on in support of a call for repealing the death penalty, Welborn acknowledged that the request was a “heavier lift” and something like banning chokeholds or addressing SB242 is more “low-hanging fruit.”
It was about 7:30 p.m. on Saturday in downtown Las Vegas when Mauricia Watkins yelled, “Your phone is your only advocate,” her voice cracking until someone arrived with a megaphone to help her. She urged the crowd to document everything to hold the police accountable.
Even at the protest against police brutality after the killing of George Floyd in Minneapolis last week, demonstrators were concerned about law enforcement violence. Watkins was one of the thousands of protesters in Las Vegas and Reno this week who have participated in peaceful demonstrations that have been punctuated by looting, vandalism and violence.
The protesters Saturday were angry — angry about systemic racism, angry about police brutality, angry enough to put their health at risk in the middle of a pandemic. Their frustration filled Las Vegas Boulevard. Marchers made their way down the boulevard and back to Fremont Street.
A line of police was blocking off access to 8th Street. Officers in riot gear broke through the line and cuffed a protester. Occasional water bottles were flung at police as arrests started to pick up. In one arrest, a man was thrown down, his feet came off the ground and his glasses flew off.
With more arrests, came more water bottles and other items targeted at police. A glass bottle shattered, followed by another. As the tension between the two sides continued to mount, one protester near the back of the crowd said over a megaphone "I feel like shit's about to pop off."
Shortly after, police deployed tear gas canisters and fired non-lethal projectiles.
The crowd scattered almost immediately.
“We were having a very peaceful protest on Saturday,” said Korey Tillman, a Ph.D. candidate at UNLV who is studying police violence. “When we marched downtown, every time we turned a corner, there would be another blockade by Metro. They were setting up these barricades.”
Tillman said it felt like the Las Vegas Metropolitan Police Department was waiting for violence.
“It's an example of them baiting protesters into violence,” he said. “When they respond to violence, the violence to police officers occurs. And then they start to call the arrests.”
But for police, especially in Las Vegas, the protests around the country have little precedent.
“From people I’ve talked to, these protests are like nothing they’ve ever seen in their entire career,” said Tom Roberts, a Republican assemblyman and former Metro police officer, in an interview Wednesday. “And this is from all over the country. They are all talking about the same thing. Bricks being thrown at police officers. Frozen water bottles. Fireworks. Glass bottles.”
On Tuesday, Roberts called for the Legislature to convene a special session to discuss police reform, a tweet that was liked by legislators in both parties. Roberts, in an interview, said that it was important for elected leaders to talk publicly about the issue and start a dialogue.
He said that Metro has progressive policies compared to other agencies, but there is space for improvement, and a legislative session would send a signal to protesters that leaders are responding.
“If these protests are truly about police reform..., our leaders should be talking about it,” Roberts said. “And they should be out in the public saying we hear you and we’re going to talk about it.”
Escalating tensions, recorded on video
Law enforcement officials from both Washoe and Clark counties have characterized the majority of protesters as peaceful. Clark County Sheriff Joseph Lombardo even went as far as saying Sunday that “less than 1 percent” of people demonstrating intended to cause destruction.
Still, both police departments have deployed large groups of officers in tactical gear, prepared to launch tear gas and projectiles. On Saturday evening in Reno, the National Guard was on call, and guardsmen were also called to assist in Las Vegas, Metro announced on Tuesday.
It comes as questions, across the country, have emerged about the excessive use of non-lethal crowd control weapons to police the George Floyd protests. In Nevada, weapons from tear gas and projectiles to flashbangs and pepper spray were deployed to disperse the protests.
During a press conference on Tuesday, Metro presented a clear narrative. Deputy Chief Jim Seebock said that Metro shared the protesters’ frustration at the killing of Floyd and respected their right to protest. But he said as the nights had gone on, the protests had grown violent.
“Those that seek to break the law stay behind,” he said, describing how the protests evolve into the night. “These people are clearly not here for peaceful purposes. They are set on damaging our community, our businesses and to cause harm to our officers and the people in the area.”
Seebock said these demonstrators have used rocks, bats, axes and glass cutters. Seebock said that, as of Tuesday, at least 25 Metro officers had been injured while patrolling the protests. On Monday, an officer was hospitalized after being shot during a demonstration. That night, another officer shot and killed, 25-year-old George Jorge Gomez after police said he raised a firearm.
Metro lobbyist Chuck Callaway, on Wednesday, presented photos at an emergency Clark County Commission meeting of weapons brought to protest. He said the force has seen an increase of violence unlike what Las Vegas saw during the Rodney King riots in the 1990s.
“I’ve never seen anything like it before,” he said. “It’s disturbing, quite frankly.”
On Wednesday, federal prosecutors charged three white Nevada men in a right-wing conspiracy to instigate violence during the recent protests. The three men with military backgrounds met at earlier demonstrations this year to reopen businesses shutdown by the coronavirus pandemic.
Law enforcement officials in Reno, which saw a day of large protests on Saturday, presented a similar narrative. A peaceful demonstration that turned to violence and vandalism, warranting a heavy police response. On Saturday evening, demonstrators threw rocks and water bottles at a police line. Those responsible for the unrest were agitators from out of town, officials said.
But reported arrests, at least from Reno, show most people arrested were from the area.
And photos, videos and firsthand accounts show a forceful police response on large crowds that included demonstrators who were not instigating violence, an action that some advocates worry might have contributed to a cycle of force between protesters and police over the past week.
Several of these videos, posted on social media, were shared widely. Rapper Lil Nas X tweeted a video posted by Las Vegas Locally that showed a Metro officer grab a man walking across the street, and drag him by his backpack on a sidewalk. It has 18 million views. At the Clark County meeting on Wednesday, Commissioner Justin Jones recounted how an attorney in town was waiting for a ride after a protest and thrown to the ground and handcuffed by police officers.
In Reno, videos showed rounds of tear gas deployed in crowds, affecting journalists and demonstrators alike. The activity in Reno has prompted an ACLU observer to file a complaint. At a meeting Wednesday, Reno Police Chief Jason Soto, who is serving as acting city manager, said he was instructing the acting police chief to review the department’s use-of-force policy.
“To get back to peace, that moment's always contextualized and very hard to define,” Tillman said during an interview Tuesday. “I think the problem lies before the violence starts.”
He said the issues lie with the policies and mechanisms police use to respond.
That the protests are occurring during a pandemic, Tillman said, creates that much more risk.
“Having to go through this protest to show solidarity has forced me to battle this question, he said. “Do I go risk my life and exposure to COVID for a cause that is threatening my life daily?
‘Really tough conversations’
Everett George traveled from Fallon with his brother Saturday to attend the protest in Reno.
George, a 27-year-old Paiute and Shoshone artist, joined the peaceful demonstration around 3:30 p.m. in downtown Reno and continued to march throughout the day. George said he never felt in danger but said the hurt and fear were palpable. At one point, he heard glass break.
A small group of people had broken into City Hall. The group caused extensive damage to the building, even setting a fire while there were still people working there.
Then the police arrived with tear gas. George, a bystander, was talking after the protest as he was hit by the gas. George said that it came so quick he “didn’t even know what it was” at first.
“People started running cause it affected anybody in the plaza. It doesn't matter if they were part of the protest,” George said in an interview Tuesday. “It doesn't matter if they were part of the people that actually did the stuff at City Hall. It was whoever was around, they got hit.”
Reno Mayor Hillary Schieve imposed a curfew and police told the crowd to disperse. Still, around 8:00 p.m., a crowd of more than 100 was gathered in downtown Reno, standing on the Virginia Street Bridge, opposite a police line in front of City Hall. Most people in the crowd remained largely peaceful, but a small group occasionally threw water bottles and rocks.
In successive intervals that seemed to grow faster throughout the night, the police responded with tear gas and projectiles to disperse the crowds. They were aimed at the large crowd, which included many non-violent demonstrators holding signs that were condemning police violence.
Two of those point-shoot projectiles hit Holly Welborn, an ACLU attorney observing the protest, and another projectile hit her colleague.
“This was an incredibly exhausting and multi-faceted day,” she said.
When incendiary graffiti was scrawled on its headquarters, the department turned a cheek. At the earlier protest by the federal building, she said the police showed an incredible amount of restraint with barely any law enforcement present. She added that the department’s tactical response to the City Hall break-in was appropriate, given the immediate risks that it posed.
But she said putting the National Guard on-call and using tear gas and flashbangs to disperse the crowds in the evening amounted to a show of excessive force, given that there were only about 200 people left at that time. On Wednesday, she filed a complaint after she was hit twice by a nonlethal projectile, despite wearing a vest identifying her as an observer.
Similar equipment was used in Las Vegas over the past week. After media reports surfaced over the weekend that Las Vegas police had indiscriminately fired rubber bullets into a crowd, striking two journalists, Metro clarified Monday that they did not use the rubber bullets being used elsewhere in the country, but instead “pepper balls” or pepper-spray bullets.
A non-lethal projectile loaded with a chemical irritant similar to pepper spray, pepper balls, much like their rubber-bullet counterparts, can still cause severe injury or death if they strike a person in the wrong place — such as when a 21-year-old college student, Victoria Snelgrove, was killed by Boston police using pepper-spray bullets to suppress a baseball-related riot in 2004.
Welborn wonders if the response could have been more targeted toward those inciting violence.
“It seems like the default solution are the militarized weapons or these so-called non-lethal weapons that actually inflict a lot of harm on individuals,” Welborn said in an interview.
For Reno, the issue is a newer one, and Welborn acknowledges the challenges that face law enforcement officers who must distinguish peaceful protesters for violent agitators in a crowd.
“We’re going to have really tough conversations,” she said
Both urban and rural police departments have taken advantage of a Department of Defense program, known as a 1033 program, that has allowed Nevada law enforcement agencies, like others around the nation, to acquire military equipment.
In Nevada alone, police departments have spent hundreds of thousands, sometimes millions, on surplus equipment ranging from mine-proof vehicles to night-vision goggles to helicopters, according to a review of government documents by the nonprofit Marshall Project.
Among the 31 local law enforcement agencies in Nevada that participated in the program, the single largest buyer by far was Metro, which spent more than $7 million on military surplus for helicopters, engines and tactical gear, according to federal records of those transactions.
In comparison, many of Nevada’s smaller departments or sheriff’s offices spent as much or more on similar tactical equipment. The Washoe County Sheriff’s office — the second largest buyer through the 1033 program in the state — spent more than $2 million through 2014, including nearly $1 million on a utility helicopter, $41,000 on 83 rifles and another $20,000 for 22 sets of “night vision viewing sets.”
Today, local police departments in Nevada still maintain millions of dollars worth of military equipment that could be used when law enforcement intervenes. At least one agency — the Henderson Police Department — has sought to enter into the 1033 program in 2020.
The conversation starts
In Reno and in Clark County, the really tough conversation turned public on Wednesday.
In the morning, Metro came before the Clark County Commission advocating for an ordinance that would ban demonstrators from carrying backpacks, coolers, strollers and luggage, a move the agency argued would enhance public safety for the vast majority of peaceful protesters and officers. But it was criticized by the public for potentially making it harder to protest at rallies.
And throughout the meeting, they engaged in a larger discussion about the protests and Metro’s response to them. Commissioner Lawrence Weekly raised the incident of an attorney being handcuffed after leaving a protest this week and waiting for a ride-share. Weekly noted that the attorney was also hit by pepper spray bullets, which left a large purple and black mark.
“We all cried on the phone yesterday in tears,” Weekly said. “A bunch of men crying.”
He said that Metro had an opportunity to provide a model, but needed to address some issues.
“We have an opportunity to be a model for the state and talking to commissioners across the state, they are saying ‘wow, you guys really are doing some good stuff from community policing to the whole nine yards,” Weekly said. “But there’s also still some other underneath-the-skin type issues — there are some blatant issues that really need to be addressed.”
Metro has touted dozens of reforms made in the last decade that have sought to boost transparency and broadly reduce the use of deadly force by its officers.
Those reforms came, in part, in the wake of a 2011 investigation by the Las Vegas Review-Journalthat found Metro alone was responsible for 310 shootings and 115 deaths between 1990 and 2011. That investigation later triggered a review of the department’s use of force by the U.S. Department of Justice and ultimately led to the massive internal overhaul of the department’s use of force policies.
Callaway noted that it was frustrating that police officers were being painted with a broad brush across the country, but said it was unfortunate that peaceful protesters were being painted with a broad brush too, with their actions conflated with agitators who are seeking violence.
Commissioner Jim Gibson emphasized accountability for use-of-force in real-time.
“We're definitely not perfect and, yes, you hit the nail on the head — accountability on the frontline, especially in these situations we've seen over the weekend where emotions run high and passion is out there, and people are very passionate about these issues,” Callaway said.
On Wednesday, Reno took one formal step to bolster accountability.
In a press conference, Soto said that it has been an expectation, for years, that officers step in to stop inappropriate use-of-force if they see an officer using it on the frontlines.
“We don’t have that in policy,” Soto said. “And it’s a policy that we should have written down so our officers understand that if they don’t do that, they’re subject to discipline.”
Charges of excessive force are not unique to Metro.
According to the Mapping Police Violence project, which tracks police shootings, use of force by the Reno Police Department killed 14 people between 2013 and 2019. Combined with Reno’s relatively small population of roughly 225,000, it puts the per capita killings from the department at 8.9, or more than double the 4.2 per capita killings attributed to Metro.
Soto said the city’s numbers don’t support that finding, and he wondered if the report included other agencies in the region, including the Washoe County Sheriff’s Office.
“That was a shocking statistic to hear,” he said. “Our data doesn’t support that.”
In Las Vegas, volunteer legal observers will now be at the protests to answer questions about what rights protesters have, Gov. Steve Sisolak said in a press release on Wednesday.
“To all Nevadans lawfully protesting in the Valley this evening and this week: volunteer lawyers will be observing these protests,” said in a statement. “These legal observers will be wearing red T-shirts that say “LEGAL OBSERVER” — if you have any questions about how to lawfully express your rights or what conduct is lawful, please seek out one of these volunteers."
By 11 p.m. on Saturday night in Reno, law enforcement officers had pushed protesters toward a parking lot straddling downtown and midtown. Most of the crowd had dispersed. Vehicles had been damaged, including one set on fire. And individuals had looted several stores.
As tear gas filled the parking lot, some people were watching in front of an adjacent bar. Javon Williams said he had participated in the protest earlier in the day, but at this point in the evening, he was trying to observe what was going on. He said he felt a lot of animosity and anger.
Williams, who introduced himself as a comedian, said that he was there to get material.
“As a comedian, I wanted to put myself in everyone else's shoes and actually see the situation as it was going on,” he said of the protests, which were being live-streamed on local TV and social media. “You can't really understand it by sitting at home and watching it on TV."
In an interview later this week, he said that police “could have done a better job.”
And in a reference to UNR alumnus and former quarterback Colin Kaepernick, he said: “They could have prevented a lot of what happened Saturday if they had just taken a knee.”
The Nevada Independent photographer Daniel Clark, intern Tabitha Mueller, reporter Jazmin Orozco Rodriguez and reporter Jackie Valley contributed to this story.
The Nevada Department of Transportation called off the scheduled cleanup of a homeless encampment along the Truckee River in Reno on Wednesday morning, and said it would suspend cleanings on highway rights-of-way throughout the pandemic — the decision aligns with the City of Reno's suspension of homeless camp cleanups in mid-March.
The cleanup was announced to campers through flyers passed out on Tuesday morning that indicated any belongings found by crews would be discarded, not stored. The plan drew criticism from advocates who noted that the Centers for Disease Control and Prevention discourages sweeps of homeless camps that force people to move and could accelerate the spread of the virus.
Some people at the camps heeded the flyer and left the property, while others, including Christina Edwards, remained behind.
"We don't bother anybody. We want to stay away from people because we don't want to get sick. And everywhere that we go, we are shoved out and pushed away, and we're not making a mess, we're not defacing property or anything like that," said Edwards. "So, I really don't understand, but to find out that we don't have to leave now is this big giant relief."
Edwards, who is pregnant and became homeless for the first time after she could not pay motel rent because of COVID-19 layoffs, said she was unsure of where she would have gone if the department had not stopped the cleanup.
"We're practicing social distancing and I feel like we're safer on the outskirts of town than we are in the inside of town because everybody that I know that's at the shelter is coughing or sick, and I don't want to be," she said.
Holly Welborn, the policy director for ACLU Nevada, came to the site where the cleanup was supposed to take place as a legal observer for the ACLU. She said that she was appreciative of the department’s quick response to criticism surrounding the cleanups.
"We are highly disturbed by [the notice to vacate] because the CDC guidelines or recommendations are quite clear that we shouldn't be doing any type of enforcement along encampments," Welborn said in an interview. "Encampments should be able to sustain themselves because it's a better, safer approach for people who are unsheltered."
In an email to The Nevada Independent, state transportation officials said that the cleanup was part of an effort to protect public and water quality safety, but that they had suspended it to reduce movement and potential virus spread.
Welborn acknowledged the importance of environmental safety but said there are better ways to address those issues.
"If there are environmental concerns, then I think that we need to provide proper sanitation services near encampments so people can utilize those and keep themselves safe," she said.
Even though the agency informed Welborn and other advocates that the cleanup was no longer happening, many residents of the encampments were unaware of the suspension until Welborn spoke with them while handing out "know your rights" pamphlets.