10-5-15 Nevada:
CARSON CITY — An attorney representing 24 unnamed previously convicted sex offenders told the Nevada Supreme Court on Monday that a state law that would change the way such individuals are classified is a "one size fits all' approach that is inappropriate and unconstitutional.
Alina Shell argued that Assembly Bill 579, passed by lawmakers in 2007 to make the state compliant with the federal Adam Walsh Act, should be prohibited from taking effect until the constitutional claims can be resolved in court. The law was named after Adam Walsh, the 6-year-old son of TV personality John Walsh, who was abducted and murdered in Hollywood, Fla., in 1981.
Shell was appealing a January 2014 ruling by Clark County District Judge Douglas Smith that denied a request for a temporary restraining order to stop enforcement of the law while the constitutional claims are litigated.
The law has not yet been enforced. An effort to fix what critics said were flaws in the original law was successful in the 2015 session of the Legislature. But that measure, Senate Bill 99, was vetoed by Gov. Brian Sandoval because it also eliminated a requirement that certain sex offenders stay at least 500 feet away from schools, parks and other places frequented by children.
AB579 would create a classification system for sex offenders that places them into one of three risk tiers based solely on their crime of conviction.
Shell said the new rules will treat all convicted sex offenders the same whether or not they are rehabilitated, and subject them to onerous and humiliating reporting requirements.
"That is not the way sentencing and registration should work," she said.
Shell said the law violates the separation of powers doctrine because it usurps judicial decision making by a sentencing court. That, she said, is a constitutional argument that needs to be litigated.
Other issues raised include due process and equal protection violations.
But Kimberly Buchanan, a senior deputy attorney general, argued that many of the constitutional claims raised by Shell on behalf of the 24 "John Does" have been resolved in prior cases, including a challenge to the law made by the ACLU of Nevada in 2008. The 9th Circuit Court of Appeals in 2012 ruled in the ACLU challenge that the law was constitutional, including a retroactive application covering sex offenders who have already been convicted.
The Nevada Supreme Court also denied a challenge to the law in 2013, Buchanan said.
But Shell said the separation of powers argument, while raised in U.S. District Court, was not addressed in the 9th circuit opinion.
The court took the case under submission and will rule later. ..Source.. by Sean Whaley
November 23, 2015
Lawyer for 24 sex offenders says Nevada registration law is unconstitutional
August 26, 2015
Sex offenders challenge Nevada supervision law
8-26-15 Nevada:
More than a dozen sex offenders are challenging the Nevada Parole Board's authority to impose conditions on their lifetime supervision.
The offenders, identified only as Does 1-16, filed a federal lawsuit Tuesday against several state and local officials, including Nevada Attorney General Adam Laxalt.
According to the lawsuit, the Parole Board has relied on an unconstitutional Nevada law to place movement and residency restrictions on convicted sex offenders who are under its supervision. In some cases, those restrictions have prevented the plaintiffs from attending religious services or associating with certain people in certain areas.
"The state of Nevada should not be allowed to violate the Constitution," attorney Robert Draskovich said. "It doesn't matter whether a person has been convicted of an offense that the public may hate. No one is above the law, and it should be followed."
Draskovich and two other Las Vegas attorneys, Gary Modafferi and Allen Lichtenstein, are representing the plaintiffs in the case.
The plaintiffs seek a permanent injunction to prohibit enforcement of the law, officially known as Nevada Revised Statute 213.1243. The statute, passed in 1995, gives the Parole Board authority to establish a program of lifetime supervision. Residency and movement restrictions were added to the law in 2007.
According to the complaint, the law:
• Violates the First Amendment by infringing on the plaintiffs' freedom of religion and right to assemble.
• Violates the double jeopardy clause of the Fifth Amendment because it imposes multiple punishments for the same crime.
• Violates the Eighth Amendment prohibition against cruel and unusual punishment, because violating a condition imposed by the Parole Board subjects an offender to another felony and a mandatory sentence of one to six years in prison.
"The sentence received for a violation of a condition inflicts a sentence disproportionate to the actual condition violated," according to the document.
• Violates the due process and equal protection clauses of the Fourteenth Amendment.
• Violates the ex post facto clause, because "these punitive conditions did not exist in law when the plaintiffs committed their offenses."
• Violates the contract clause, because it "substantially impairs the terms of plaintiffs' plea agreements by imposing conditions that did not and do not exist in any statute."
• Violates the separation of powers doctrine "by delegating the power to legislate to an executive agency without any intelligible standards and allowing the executive agency to interpret and apply the law," thereby infringing on the powers of both the legislative and judicial branches.
• Violates the bill of attainder clause by allowing the Parole Board "to inflict further punishment without a judicial trial."
Among the plaintiffs in the case is "Doe 7," a Las Vegas man who pleaded guilty in 1997 to sexual assault and battery with the intent to commit sexual assault. He received a prison term of 10 to 25 years and was released on Nov. 30, 2010. He is now on lifetime supervision with more than 21 conditions imposed by the Parole Board.
"Doe 7 had difficulties finding a job due to the conditions that he is subject to," the complaint alleges. "Doe 7 also incurred expenses for computer monitoring on his work and personal computers, which can be faulty and corrupt his work files by no fault of his own. This has created a financial burden to Doe 7 considering that he also has a family he needs to provide for. Furthermore Doe 7 has family out of state and has difficulty seeing them due to movement conditions imposed on him."
Another plaintiff, "Doe 13," is an Arizona resident who committed a sexual offense in 2006 and accepted a plea agreement the following year. He was sentenced to probation with lifetime supervision.
According to the lawsuit, the conditions of his supervision "have had a disabling impact" on his life, including forcing him to stop working as a phone line splicer because of travel restrictions.
"He has not been able to engage in any relationships with the women he has met because they have children and he cannot be near children," the document claims. "He cannot go to a movie without getting prior permission. Recently, his best friend died but he was unable to attend the funeral because of the travel restrictions."
Among the officials named as defendants in the case are Clark County Sheriff Joe Lombardo and Clark County District Attorney Steve Wolfson. Neither could be reached for comment. Patty Cafferata, spokeswoman for Laxalt, said in an email that the attorney general's office does not comment on pending litigation. ..Source.. by Carri Geer Thevenot
September 19, 2012
Families of two men who died in encounters with Las Vegas police file civil lawsuits
9-19-2012 Nevada:
The families of two men who died during encounters with Las Vegas police filed separate federal lawsuits Tuesday against the agency and its officers, alleging negligence that proved fatal.
One lawsuit was filed on behalf of the mother and father of Anthony Jones, 44, who died in December 2010 after he ran from police during a traffic stop and two officers used a Taser on him several times. Taser International Inc., the manufacturer, also was named as a defendant.
...
Lawyer Peter Goldstein is representing both families.
The Clark County district attorney's office cleared officers in both cases of any criminal wrongdoing. In Brenes' case, officers didn't violate any internal policies, Las Vegas police said. But policies restricting Taser use were adapted after Jones' death.
In the Jones family lawsuit, four officers were named as defendants. The lawsuit alleges unreasonable search and seizure, excessive force, false arrest, battery and negligence.
The lawsuit said Tasers were used on Jones for more than 100 seconds. It said that before the encounter got physical, Jones was detained without probable cause and without reasonable suspicion.
On Dec. 11, 2010, police stopped Jones' Lexus sedan about 1 a.m. near Martin Luther King and Lake Mead boulevards because its headlights were off. During the stop, an officer noticed Jones acting erratically and asked him to step out of the vehicle.
After an altercation, the officer drew his gun, and Jones ran. Jones fell in a nearby dirt lot, and the officer jumped on his back and fought with him.
According to internal police reports, officer Mark Hatten fired his Taser 10 times for about 92 seconds. Officer Timothy English used his Taser twice for about 10 seconds. It was unclear how many of the Taser shots struck Jones, the reports said.
Because of this incident, the department changed its Taser policy to stop multiple officers from using the weapon on someone at the same time.
Also, policy was changed to restrict Tasers from being used for more than three five-second cycles.
The Clark County coroner's office listed Jones' cause of death as cocaine and ethanol intoxication, with police restraining procedures and an enlarged heart as contributing factors. He was a registered sex offender on parole.
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Both lawsuits seek damages for wrongful death, attorney fees and funeral expenses.
The lawsuits also state that the department was negligent in its practices, such as the use of Tasers in Jones' death and excessive use of force in Brenes' death. The lawsuits allege police also failed to provide prompt medical care for Jones and Brenes. ..Source.. by Antonio Planas
