MINUTES OF THE
SENATE Committee on Government Affairs
Seventy-second Session
February 10, 2003
The Senate Committee on Government Affairs was called to order by Chairman Ann O'Connell, at 2:05 p.m., on Monday, February 10, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Ann O'Connell, Chairman
Senator Sandra Tiffany, Vice Chairman
Senator Terry Care
Senator Warren B. Hardy II
Senator William J. Raggio
Senator Dina Titus
Senator Randolph J. Townsend
GUEST LEGISLATORS PRESENT:
Senator Joseph (Joe) M. Neal Jr., Clark County Senatorial District No. 4
Senator Raymond D. Rawson, Clark County Senatorial District No. 6
STAFF MEMBERS PRESENT:
Michael Stewart, Committee Policy Analyst
Scott Wasserman, Committee Counsel
Tara DeWeese, Committee Secretary
OTHERS PRESENT:
Dan Musgrove, Lobbyist, Clark County and Southern Nevada Regional Planning Coalition (SNRPC)
Charles L. Horsey III, Administrator, Housing Division, Department of Business and Industry
Bobbie Gang, Lobbyist, Nevada Women’s Lobby and the National Association of Social Workers-Nevada (NASW)
Benjamin Blinn, Concerned Citizen
Ronald R. Dreher, Lobbyist, Peace Officers Research Association of Nevada (PORAN)
Michael Gillins, Lobbyist, Las Vegas Police Protective Association, NCOPS
Gary H. Wolff, Lobbyist, Nevada Highway Patrol Association
Kristin Erickson, Chief Deputy District Attorney, District Attorney, Washoe County
Thomas Plehn, Sergeant, Lobbyist, Police Managers and Supervisors Association
James F. Nadeau, Lobbyist, Washoe County Sheriff’s Association and Nevada Sheriff’s and Chief’s Association
Stan Olsen, Lobbyist, Las Vegas Metropolitan Police, Nevada Sheriff’s and Chief’s Association-South
Frank Siracusa, Chief, Division of Emergency Management, Department of Public Safety
Chairman O’Connell opened the hearing, saying they would not be discussing Senator Mathew’s Senate Bill (S.B.) 28.
SENATE BILL 28: Provides that certain money set aside for group insurance for officers and employees of school districts must not be used for other purposes. (BDR 23-195)
Chairman O’Connell mentioned they would discuss the bill when Senator Mathews was available to attend the committee meeting. Next, Chairman O’Connell introduced Bill Draft Request (BDR) 20-418.
BILL DRAFT REQUEST 20-418: Allow a board of county commissioners to abolish the office of County Recorder and assign the functions of that office to the other elected county officers. (Later introduced as Senate Bill 80.)
Chairman O’Connell asked if anyone wanted to speak in favor of BDR 20-418.
Dan Musgrove, Lobbyist, Clark County and Southern Nevada Regional Planning Coalition, stepped forward to testify on BDR 20-418. He explained it would be better for the citizens of Clark County not to have to go to repeat departments. This would abolish the office of recorder and assign the duties to other elected officials who would act as ex officio. For example, to obtain a marriage license all one would have to do is go to the County Clerk, they would record the document there. That would eliminate having to go to one place to obtain the marriage license and then go to another place to record the document.
SENATOR TIFFANY MOVED TO INTRODUCE BDR 20-418.
SENATOR TOWNSEND SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman O’Connell opened the hearing on Bill Draft Request S-455.
BILL DRAFT REQUEST S-455: Requires the Southern Nevada Regional Planning Coalition to meet bimonthly. (Later introduced as Senate Bill 79.)
Mr. Musgrove, representing the Southern Nevada Regional Planning Coalition, addressed the committee in support of BDR S-455. He said he would like to reduce the number of times the coalition meets to every other month and still have the ability to call special meetings when needed.
SENATOR HARDY MOVED TO INTRODUCE BDR S-455.
SENATOR TOWNSEND SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman O’Connell opened the hearing on BDR 25-467.
BILL DRAFT REQUEST 25-467: Makes various changes relating to assistance to finance housing. (Later introduced as Senate Bill 78.)
Charles L. Horsey III, Administrator, Housing Division, Department of Business and Industry, testified in support of BDR 25-467, referring to his handout, Exhibit C, he explained:
The last Legislative Session the Housing Division was granted additional lending authority as well as greater flexibility. When the bill got to the Assembly side, after the rules were suspended, the limitation that was placed was that it would sunset in two years. And therefore, I assume the limitation was put in there because they wanted to see what we did with that additional authority. I am pleased to report the lending authority and, specifically, our ability to make grants, enabled the Housing Division, last June, to donate to the Welfare Division via a grant $2.75 million. We were not asked to do this, there was no pressure to do this. These were not federal funds. These were funds we had built up in our reserves and our bond issues over the year.
Given the State’s tight budgetary situation, we granted the $2.75 million to the Welfare Division to help them out in their time of need. If it had not been for those new provisions, we would not have been able to do that. In addition, the expanded authority contained in the bill last year gives us the ability to lend to special needs groups such as teachers, nurses, or persons with Alzheimer’s, that type of thing. Without that authority, we will not be able to entertain those special needs projects.
SENATOR TOWNSEND MOVED TO INTRODUCE BDR 25-467.
SENATOR TIFFANY SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman O’Connell noted because of the orange alert in Las Vegas on Friday, February 7, 2003, people were not allowed into the building and could not speak on S.B. 29.
SENATE BILL 29: Authorizes certain governing bodies to regulate the carrying of unconcealed firearms upon public property at special events. (BDR 20‑697)
Chairman O’Connell stated the committee would be hearing the bill on Wednesday, February 12, 2003.
Chairman O’Connell announced Senator Neal’s arrival and opened discussion on S.B. 20.
SENATE BILL 20: Provides that a peace officer who engages in racial profiling is guilty of misdemeanor. (BDR 23-42)
Senator Neal addressed the committee and began stating his reasons for his proposal of S.B. 20. It was proposed because of a study he requested as a result of A.B. No. 500 of the 71st Session. The attorney general conducted a study to look at stops, particularly in the larger jurisdictions, made by highway patrol and state police officers. The study was definitive of who was being stopped more than others. Blacks and Hispanics were stopped, handcuffed, and charged more frequently than other races within this State. This issue was raised last session relative to police profiling. Senator Neal stated blacks and Hispanics have fought and died in American wars dating back to 1812. He mentioned this, he said, because he felt it was wrong to have minorities defend the United States and then be subjected to harassment by police officers, being stopped because of the mere fact they happened to be black or Hispanic. He illustrated that the study identified a correlation between stops and race. Senator Neal cited this as the reason for proposing S.B. 20. This bill dealt with the issue of racial profiling. He stressed it was up to this particular Legislature to deal with the problem by establishing new public policy. This bill would make it a misdemeanor for an officer of the law to violate the rights of a citizen based on whether they were black or Hispanic. Senator Neal assented to any questions the committee might have on S.B. 20.
Chairman O’Connell asked what method would be used to prove whether or not a police officer stopped a person using racial profiling.
Senator Neal responded the proof would come through the initiation of a complaint. A mechanism would be put in place for a person to make a complaint. He mentioned prior cases of police harassment were first discovered through a complaint to the department. If the case were to be prosecuted, then it would be up to a jury or a judge to discover the reason for the stop. Senator Neal emphasized there should be a probable cause for the person to be pulled over, such as swerving, speeding, driving drunk, and so forth. The Senator reiterated beyond such reasons would indicate racial profiling. He conceded that most police officers would not admit to racially profiling and evidence should be examined on whether or not the officer is guilty of such an act.
Chairman O’Connell asked Senator Neal how the problem was handled currently and if the bill was to put into law, what would the penalty for persons found guilty of racial profiling be.
Senator Neal responded, for the record:
The penalty now, if they can identify it [racial profiling], and I don’t know whether or not they can, I haven’t seen an indication where anyone from our larger police departments, particularly the [Las Vegas] Metropolitan Police Department, has identified anyone as racially profiling. As you know, we had the last sheriff who indicated his officers did not do this. But I beg to differ. Where I happen to live in that community over the years and I have watched this play out. We do have this type of activity occurring through the complaints and mere observations. If you know what I am saying and you go back and you see someone stopped and they’re let go and you ask them why the were stopped, they say, “I don’t know.” So, that way you can get at the violation of the law. It is a constitutional violation to racially profile a person. You cannot racially profile an individual.
What we do not have here is a mechanism that we can get at that can punish that act. You see, we can only do it through a civil procedure. And that is what actually happens when a person has to go to court, federal court, and through civil action, and provide a case they had to prosecute there and they get awarded damages. But nothing happened to the officer. I don’t know whether or not what procedures, I have not heard of any that exist within the police department in Clark County or Washoe that they have definitive procedures that apply to racial profiling. You might want to ask the gentlemen to submit to you a copy and just not let them tell you that they have those, to submit to you a copy of what those procedures are.
Senator Townsend asked:
I happened to be listening to some media coverage on this on a radio program that I heard earlier this weekend, in which the ACLU [American Civil Liberties Union] participated in a question-and-answer call-in show. I thought it was very informative, not just the questions, but the general discussion that followed was very important. And you touched on part of it, which leads me to the question. And that is, if there is a specific issue of identifying an individual that is sent out on some kind of APB [all points bulletin], or if there is a specific issue of inappropriate behavior leading to probable cause for a stop. So if someone is identified as being a certain height or weight, certain ethnicity, and was in a certain community at a certain time where they were described as the individual robbing the store or whatever, that automatically gets you away from the profiling question. However, that leads to the question of, if that does that, then is any other stopping for no probable cause? Does that not come under some kind of harassment area in order to deal with your question, which is, What is the penalty besides a civil action? Is there any other action now where an employee of law enforcement could be taken into department procedure, I guess it is a disciplinary procedure, for harassing an individual? Is that available as a department means?
Senator Neal responded:
I have not heard of any. And the remedy
seems to be, as I indicated, one of civil nature. You find most profiling
cases wind up in federal court. And that means the state ends up paying a heavy
penalty. But there is no punishment for the officer. We are trying to get at
that officer who would see a John Doe, who happened to be black and in a red
Toyota, and just stop him to ask him for his identification and all of this
stuff. We do have that. Of course, the other issue you raise, in terms of a
person who is respondent to some action of a criminal nature committed in a
community, then there may be an area where an articulable suspicion could be
hard to say why the person was stopped. But
then the officer has to inform the
individual as to the reason why the person was stopped. We have this data
identified, so you could make a comparison that X automobile matches the
automobile seen leaving the crime scene, or the individual who was driving the
car matches the description of whoever actually committed the crime. But you
have to be mindful of the fact, Senator Townsend, we don’t want to get into
that identification process where all black folks look alike. We want to avoid
that. And that could turn out to be the case where you look at individuals who
look just like someone you have seen before.
Now, what I am fearful of and what this committee could also consider is the fact most police departments in this country including Metro [Las Vegas Metropolitan Police Department], North [North Las Vegas Police Department] and Reno [City of Reno Police Department], are trained in what they call a military model of policing. That is, they have a tendency to look at groups of individuals. They see all Chinese as looking alike, all blacks look alike. So it becomes, in their minds, the occupying force they direct their policing towards. That could be bad, and so this is what we are trying to get away from. Of course we had in the 1970’s, the big SWAT [Special Weapons and Tactics] teams development where the policemen would come out in green fatigues, and military gear. That was the ultimate in the mindset of police officers, in terms of the military model of policing. Now in the military when they go into an area, they go in as an occupying force. Now when we go into Iraq, we have to look at all of the Iraqis as one group. You see, that is the military mindset. But the policeman has a constitutional duty to distinguish between individuals, they are supposed to act with regard to the Constitution of the United States. That is what we are talking about. They cannot violate individual constitutional rights. So we have to get away from the mindset of the group mentality.
Senator Raggio commented:
I think, obviously, everyone would object to racial profiling and we already have a law on it saying a peace officer shall not engage in racial profiling. That is the law which you are seeking to amend and you know, I have a law enforcement background myself. If someone is identified in a particular offense, whether it is a bank robbery or something else, and the description is the person is black, white or whatever ethnic background, obviously, I think it would be inappropriate to stop anyone other than someone meeting that description. So that isn’t racial profiling. Racial profiling, in my understanding, is an example where people are speeding up and down a highway and someone picks out a nonrepresentative number of a particular ethnic group to stop, and not responding to specific descriptions such as Senator Townsend mentioned.
But what bothers me about this is I don’t know of anywhere else in the country where criminal penalties are in place for something like this. But the safety of the public is to me paramount, and if I was a peace officer and we passed this piece of legislation, I think I would be reluctant to ever stop anybody who was black or Hispanic or whatever. I think this could be a great disincentive. I can’t imagine a peace officer running the risk of a criminal penalty by ever stopping someone. That is what bothers me about it. I see it as a disincentive and making peace officers very reluctant, and thereby, neglecting their public safety responsibility, because of criminal penalties. An officer, if he faced the possibility somebody would file a complaint in every case, and he would have to be suspended until it was resolved, could be reluctant to perform his duty. Then I think we would have a mess. So, I am just being a devil’s advocate here, but I just see that as real potential.
Senator Neal answered:
I do not believe the reluctance of an officer to make a stop should in any way override the constitutional rights of citizens to have the free exercise of driving up and down the road without being stopped for no reason at all. You raise the question of what is present in the law. Well, it turns out, according to [ex] Sheriff Jerry Keller [Las Vegas Metropolitan Police Department], and a member of the attorney general’s office, this is unenforceable. That section that you just read, I raised that question at our hearings when we were developing the forms, to have the officer go out and check, to write down the number of stops and how they made the stops. The question did come up and the attorney general of the State said that portion was unenforceable. And even though I raised the question: Is it unconstitutional for an officer to racially profile an individual? They said yes. But, this is not a punishment mechanism. So what do we do? That is why we are here now.
Chairman O’Connell asked:
Do you know if this, and Senator Raggio kind of touched on it, but do… we hold anyone else to this same standard where there would be a misdemeanor penalty for what is considered racial profiling? At the university with teachers, or some other areas where it might be applicable, are you aware of any?
Senator Neal responded:
In the area where discrimination is concerned, the remedy happens to be civil. And if it gets too blatant, employers always have the right to discharge individuals. Those are the other entities. But those other entities you just mentioned are not similar to officers of the law.
Chairman O’Connell asked Senator Neal, “So you think this is a unique circumstance?”
Senator Neal said:
It is a unique circumstance because you are dealing with individuals who have a tremendous amount of discretion to stop people. And once you turn that light on, and point that individual out, he has to pull over. And when he gets out of his car, at that particular point, the officer has life and death discretion over that other person at that moment. And whether or not he is right or wrong, the citizen must obey that officer. So if the officer is wrong, and he has a tendency to be prejudiced against one group or another, then I think it behooves the State to try to correct that particular situation. I recall back in the 1960’s, when we used to have lynchings and Mr. Hoover, and his organization [Federal Bureau of Investigation] could not find not a single person who did the lynchings. It was not until the Kennedy boys came in, they began to change all that. They began to try to find these people. What the Kennedy folks did, they went out and found individuals like Irish Americans, who had experienced discrimination, put them into the South, and all of a sudden you began to get lynching prosecutions.
As in all cases when you have to use juries in a particular area, you didn’t always find the people were guilty. This is what I am talking about here, we have to do something, because as I indicated, as kind of an ancillary point to this whole thing, you cannot take an army that is 30 percent black and send it off to fight for a country and have the [black soldiers] come back home and not have the freedom to drive a car up and down the street. That is the crucial question. Now, we can sit back and not do anything, but then there comes a time when people get tired and they have to take action into their own hands. What we are trying to do is prevent it so it doesn’t have to come to that. We appeal to this body, which has the authority to act, to do something relative to the report we think identified…racial profiling. You cannot sit back and discount the report and say it did not point out that we have a problem. It does and we should act. Maybe you might find, as a committee, my proposal is not the solution, then I would say to you: Come up with a better one, because we need it. Thank you.
Senator Raggio replied:
Senator, the only thing, and I haven’t read the whole report as I am sure you have, but there is a cautionary conclusion in here that says, “Though the findings show racial disparities in traffic stops, this should not be taken as proof that Nevada law enforcement officers are engaging in racial profiling.”
Senator Neal asked:
Did you read the section with the highway patrol? It is a heck of a lot different than for the major cities, it is a heck of a lot different. You will find they had a number of stops, too. But they didn’t just go out and stop a whole lot of black folks over and above the representation of the population or the representation of the driving population. You will find, in reading the report, in those areas, it doubled for blacks and Hispanics. Something is wrong with that! You cannot deny it because it was a report done by the government of this State and…compiled by the university for the attorney general’s office. They had the responsibility for this. You cannot deny this, the report is very plain. What we are asking is for something to be done to further prevent this from happening.
Chairman O’Connell asked the committee if there were any further questions for Senator Neal or anyone present who wished to testify in support for S.B. 20.
Bobbie Gang, Lobbyist, National Association of Social Workers - Nevada, and the Nevada Women’s Lobby, spoke before the committee. For the record she said:
Both organizations support S.B. 20. I would like to very briefly read a statement of the Social Workers, a policy statement of NASW at the national level, and it applies to this bill. “Racism at any level should not be tolerated; NASW advocates for the fair and equitable treatment of racial and ethnic minorities involved in the criminal justice system. We feel that this bill will hold peace officers accountable for wrong behavior. Both organizations subscribe to that and hope you will consider that when you vote on S.B. 20. Thank you.
Benjamin Blinn, Concerned Citizen:
I’d like to point out a motivation…to stop Hispanics. In the Sunday newspaper, it said all the budgetary things we were going to lose because we are no longer going to be reimbursed for…housing illegal immigrants – we make big money on that.
I’d like to read a few things to you:
Federal program that has reimbursed Washoe County Sheriff’s Office millions of dollars for housing illegal immigrants in jail faces elimination this year. A cut would mean the loss of about a million and a half a year for the State prison system, which is reeling from a 3 percent budget cut by our Governor.
We’re budgeted pretty tight, there’s nothing we can take away to make up for the loss of the programs, said Darrel Rexwinkel, assistant director for support for the Nevada Department of Corrections. Jails and prisons that receive the funding can spend the money however they wish. An inmate must stay for 72 hours or longer to qualify.
‘We use it to buy sorely needed equipment,’ testified (Washoe County Assistant) Sheriff Jim Lopey. In 2002 the programs paid the sheriff’s office for 216 jail inmates whom the INS confirmed were here illegally. The program provided partial payment for another 601 inmates for whom the INS wasn’t able to determine the immigration status, according to the Department of Justice. The jail booked 23,300 inmates in 2002. The program paid the Department of Corrections either fully or in part for 880 inmates in 2002. The prison houses about 13,500 inmates a year. The sheriff’s office, Washoe County, received $890,000 to the program in 2002, of that $112,000 will be used for wire mesh outside the jail windows and (to) beef up fencing improvements that gained importance after an inmate escaped.
The money will buy a $4000 walk-through metal detector, a $5000 device that checks non-invasive metal concealed in body cavities, hacksaw blades. Another $22,000 will help cover the county sheriff, $150,000 for the robot for the regional bomb squad. In the past years the fund has helped the sheriff’s office to pay for an armored van for the special weapons and tactics team, and a walk-in refrigerator for the crime lab, and overtime costs and cost overruns for a new drunk tank. The sheriff’s office has been receiving the funds for 5 years.
Also, a consultant was hired to maximize the funding, (who) gets 22 percent of any amount above half a million dollars. This year, that was $85,500…The state prisons have used the federal money for day-to-day operations rather than buying special equipment, Rexwinkel said. The cut might mean that more money would be taken from the State’s General Fund to run the prisons. Governor Guinn’s spokesman, Greg Bolin, said the loss of a million and a half is small relative to the State’s already nearly $2 billion budget. Any amount of money that we don’t have would be an impact.
‘The Bush administration has not requested funding in the next fiscal year for the program, called the State Criminal Alien Assistance Program (SCAAP),’ said Sheila Jerusalem, a spokesman for the federal office of justice program. They would like to basically reassess how the funds are used and put them more towards border security. Why not catch the illegals before they get in?
Jerusalem said the budget is not final, legislators still could reinstate the program. Because jurisdictions aren’t restricted on how they can spend the money, nobody’s supervising this now, the funding is necessarily used for fighting crime, according to the office of justice program.
…The article shows the motivation for why you (would) want to arrest a Hispanic. Washoe County needs that million and a half a year, (they) just stated it there, that’s the money reason. They don’t want to arrest somebody they’re not going to make money on when they know it’s likely that that person speaking Spanish over there or that person in the park may be an illegal. (He) hasn’t committed a crime, but, keep him 72 hours, “Book ‘em Dano.” I think there’s motivation there, as law-abiding and as hard as the job is for law enforcement, and I support people like Mr. Raggio who for their life donated their cares and time for a little bit of money to see that our community is safe, I admire Mr. Raggio and my family has participated (for) 50 years, from my dad being constable in Panaca to the volunteer fire department and (being a) volunteer dollar-a-year man, (as) we used to call him, who worked for (former Washoe County Sheriff) Galli in police and enforcement. I know the budget problems of a poorly paid police force and when you see all these essential toys like the robot to take care of bombs, …I don’t know how many times we’ve used that machine, but…if it comes to the fact of losing somebody’s liberty because “3 hots and a cot” for that person who’s illegal, …there’s a financial reason to stop Hispanics.
My (Hispanic) friends whom I help in the boxing program…say they can’t even get defense people from Mexico…because they are profiled… and held incommunicado. Until that 72 hours went by, the Spanish speaker didn’t get by to bail them. I think there’s some motivation here that raises some issues. I know Mr. Raggio wouldn’t approve of any of these underhanded tactics (of) how to get your budget when you didn’t get enough from the State. I think you need to address this bill in the terms of the realities these facts present. You’re reasonable people, I think you can see it’s all about money; it’s all about discrimination. I think you were looking for: How can you tell? Well, the facts are right here. They cop to it to the Governor right here (when they ask): (From) where are we going to replace this money for illegals?
Chairman O’Connell asked Mr. Blinn to leave a copy of the newspaper article, Exhibit D.
Senator Care directed an observation to Mr. Blinn saying:
On page 54 of the study, which is the Washoe County Sheriff’s Department, and page 62 of the study, which is the Reno Police Department, the percentage of stops of Hispanics is actually less then the actual Hispanic population itself. So, I can’t agree with the gentlemen’s contention here. The study itself disputes it.
Mr. Blinn responded by saying:
…Every police officer isn’t bad, I know a lot of decent honest people in law enforcement, but there are some people who are money-oriented and budget-oriented, when you don’t have to give an accounting for the money…. How do you maximize this? It is really easy to maximize the budget, arrest more of them. I don’t see how you can deny that.
Chairman O’Connell asked if there were any present wishing to testify in opposition to S.B. 20.
Ronald R. Dreher, Lobbyist, Peace Officers Research Association of Nevada (PORAN), testified in opposition to S.B. 20:
The Peace Officers Research Association of Nevada urges you to oppose legislation that would make it a misdemeanor if a peace officer violates provisions of Nevada Revised Statute [NRS]289.820. There is legislation already passed and we have laws already on the books in Nevada taking that into consideration. I will get into that in a minute. Professional peace officers criminally profile. Their initial, formal, and advanced training instructs them in the methods of criminally profiling. What is profiling? Criminal profiling is a tool used by law enforcement to protect and serve their communities. Criminal profiling is being cognizant of what constitutes a criminal violation and looking for that type of activity in our communities. We call that, in our law enforcement world, probable cause. I will give you some examples of which I know most of you are aware, but I think needs to be placed on the record, especially with the comments made today. When patrolling a neighborhood and observing a vehicle driving at a fast rate of speed, and the vehicle then fails to stop for several stop signs and narrowly misses several vehicles, officers are taught to take action. That is called criminally profiling when patrolling in an area of fast food markets and observing a vehicle exiting a market with its license plate covered or obstructed, the vehicle slowly exits the market and then proceeds to accelerate rapidly and flees the area. The officers are taught to look at that and to criminally profile. An individual is observed walking down a sidewalk in a crowded business district … yelling obscenities and throwing his hands about, disturbing the peace. Criminally profiling. These are but a few examples and I have more, but I am not going to continue to get into that, of what peace officers observe everyday that attracts their attention to individuals. It is not what you are going to hear about bias-based policing. We are trained professionals.
Let me quote my colleague, Mike Neville, President of the Washoe County District Attorney Investigator’s Association, in a letter he sent to the Senate Judiciary Committee yesterday, regarding Senate Bill 26:
Peace officers in our country have a great deal of authority and discretion. It is reasonable that the public should be concerned about the abuse of that power. But no one abhors a dishonest cop more then an honest cop does. It is a fact of life that there are bad apples in every barrel, people in positions of trust, such as lawyers, teachers, legislators, and the clergy, to name but a few.
In the case of peace officers, there are considerable psychological and background investigations conducted on potential employees. Once considered, the peace officer received considerable ethical as well as legal and technical training. Beyond that, there are substantive, administrative, civil and criminal consequences imposed upon peace officers for misconduct. If you lose your job in this profession, you are done. Unique to a law enforcement is USC (United States Code title 42 section 1983), which imposes severe criminal and civil penalties for a violation of civil rights under the color of law. As I mentioned earlier, NRS 289.820 has a similar law, called “Oppression Under the Color of Law.” It does have criminal penalties for people in our profession who violate the law. We also have the Nevada Revised Statutes, which makes it okay to turn in someone you know who does something improper in government. It’s kind of like the whistle blower law, for the law enforcement officers. You can do that. You are supposed to turn in people who violate the law. As I mentioned, legislation already exists to punish officers who violate the rights of individuals. I submit the occurrences of bias-based policing are the rare exception, not the rule. Professional peace officers criminally profile, they do not bias-based police; S.B. 20, Senator Raggio has stated and we concur, would tie the hands of police officers that criminally profile. I believe criminals would use this section to file repeated criminal complaints against peace officers who lawfully carry out their duties. Police officers would be subject to numerous internal affairs complaints regarding who lawfully carried out their duties. Senate Bill 20 is legislation that is not needed. This legislature must continue the past legislation that provides law enforcement officers the tools to do their jobs and to carry out the ability to protect and serve the public. On behalf of the peace officers of the State of Nevada, I urge you to oppose S.B. 20. Thank you.
Senator Tiffany asked Mr. Dreher, “I was just wondering, for a police officer, if he is found guilty of a misdemeanor or is considered to be charged with a misdemeanor, what does that do to his career?”
Mr. Dreher answered:
Basically, as a misdemeanor, most of the departments are not going to fire you for being convicted of a misdemeanor. You are not. You would have a criminal record for that, you would probably face administrative sanctions for embarrassing the police department and you would probably face sanctions and probably be terminated if it was proven that you committed ‘bias-based’ policing.
Senator Tiffany asked, “So right now they wouldn’t get fired for it?”
Mr. Dreher responded, “No, let me take that back.”
Michael Gillins, Lobbyist, Las Vegas Police Protective Association, NCOPS, responded to Senator Tiffany’s question by saying:
What would currently happen, would depend upon what type of misdemeanor the officer is charged with. As to what would happen to the officer immediately, normal course of action is the officer is immediately placed on administrative leave pending an investigation both internally and criminally, depending on the type of crime that was committed, there are several. This would be one of them. Bias-based policing would be one of them that you would be terminated for. A common thing I don’t think people really realize is that in law enforcement, unlike any other profession, if you are convicted or you are terminated from a police department, the chances of you being reemployed in this State or any other state are slim to none. Unlike an attorney or a doctor or any other numerous professions you can find employment someplace else, you are essentially, at that point, locked out of your profession for the rest of your life.
Senator Tiffany said, “I was just wondering if you had a one-time incident and for some, whatever reason you are found guilty of that, that could impact their career. Because it sounds like they could be put on administrative leave.”
Mr. Gillins replied, “They would automatically be put on administrative leave.”
Senator Tiffany, “But only if they were found guilty of the misdemeanor?”
Mr. Gillins responded:
If the charges were sustained against them, either internally or criminally, then they would be punished accordingly. And that punishment would be consistent with the type of issue they are dealing with. The issue is bias-based policing, which is a term that we use in law enforcement as opposed to racial profiling, because profiling is a common practice. It is good police practice to profile. It minimizes the efforts if you are looking for a serial rapist and he happens to be African American. Then you are going to racially profile him in that direction. But that does not mean that you are being biased in that you are being prejudicial towards that person in using race as a quantifier for your investigation.
Senator Tiffany, “Do you know what other states are doing in reaction to racial profiling? Do we know of any other states that have implemented a misdemeanor?”
Mr. Gillins, “To the best of my knowledge, none.”
Senator Tiffany, “Then we would be the first to do that, that you’re aware of?”
Chairman O’Connell asked Mr. Gillins, “Do you, by any chance, know any numbers as far as this kind of enforcement?”
Mr. Dreher, answered for the record, “I am not quite sure I understand your question.”
Chairman O’Connell clarified, “You had gone through the various penalties for somebody doing something that was bias-based. Do you have any numbers for us as far as that actually happening with any officer?”
Mr. Dreher responded:
Well, yes, I do. Probably the most media-covered event in the United States was the Rodney King incident, were you saw what would happen when an officer “goes overboard.” Civil rights, I believe the [officers involved] were found innocent in one regard and the civil rights punished them in others. I don’t know if those officers involved are still in custody, but that is probably the most notable of those types of cases. Within the State of Nevada, if an officer is found to be guilty [of] what we would term in our profession, “conduct unbecoming,” which obviously bias-based would fall under, that officer would probably receive a very sustained penalty or discipline and as you heard Mr. Gillins testify, they would probably be terminated or receive a lengthy suspension and they would never receive other work.
Chairman O’Connell asked, “Do you have any reference number that you can give us as to how many times this has been applicable?”
Mr. Dreher responded, “I don’t, no.”
Mr. Gillins answered:
I am supposing that Stan Olsen, who, speaking on behalf of the Chief’s and Sheriff’s Association, could probably shed better light on the actual statistics. I can tell you, representing hundreds of officers a year in internal investigations, that very seldom are those investigations based upon bias-based policing. I can tell you there have been instances in the last year, one [officer] in particular I recall, who has been terminated, not because he was bias-based policing, but because he gave an indication that he might bias-base his policing going through the training process, and the department saw fit to relieve him of his position within the department and non-confirm him. So it is a situation that isn’t taken lightly by law enforcement to any degree. In fact, the reason we went to the term “bias-based policing” in the first place was because bias-based policing not only included race, it included gender, age, sexual orientation, and ethnic origin, which may not always be distinguishable by race. Any of the areas that somebody could develop a bias [against] and target an individual group based upon those conditions [are ones] we look at to make sure those things are not occurring within the department.
Gary H. Wolff, Lobbyist, Nevada Highway Patrol Association:
I just wanted to add a few things. I believe the way the bill is written has a chilling affect on the officers and their ability to do their jobs. However, on the other side, everything else has been said that I would say. But actually this law would hinder departments in some respect in internal matters because internal matters are much easier handled in issues like this than they would be if you applied some sort of a misdemeanor, criminal penalty to this. First of all, I think it would be next to almost impossible to prosecute this. I have been a police officer for 31years, retired for 6 years now, and I can only remember only once or twice in my entire career where this has ever happened to a degree that it may be able to fall under this law. However, I can tell you, as many ways that police officers are handcuffed today and their inability to do their jobs, especially in light of what is going on in this nation. I just think it sends a wrong message to the 99.999 percent of the very decent, good law enforcement officers I have known or trusted and we have no place in our hearts for bigotry of any kind, I can assure you that. That is what I wanted to say, I do support not passing this bill, and I think it is bad. Thank you.
Kristin Erickson, Chief Deputy District Attorney, District Attorney, Washoe County, added:
I am basically here to comment and give the prosecutorial perspective. The first problem I see as a prosecutor is, how do we prosecute this crime? What are the elements of racial profiling? What is the definition of racial profiling? That proves to be a substantial obstacle to a successful prosecution. Also, suspecting a person of racial profiling is vastly different from proving beyond a reasonable doubt. As I am sure you are all aware, proof beyond a reasonable doubt is the highest standard in the criminal justice system, and proving something as vague as racial profiling would be extremely difficult, if not impossible. Thank you.
Thomas Plehn, Sergeant, Lobbyist, Police Managers and Supervisors Association, commented by saying:
Most of what my colleagues have said I definitely agree with. I just wanted to add that in my 30 years of police work, I think we have made a lot of progress in this area. Representing the mid management group of the [Las Vegas] Metropolitan Police Department, we have no tolerance for bias-based policing, but we do oppose this bill.
Stan Olsen, Lobbyist, Las Vegas Metropolitan Police, Nevada Sheriff’s and Chief’s Association-South, said:
We believe everything that has already been said, we wanted to go on the record, though, as in opposition to this bill and also clarify one point. [Las Vegas] Metropolitan Police Department has no federal prisoners in our jail, there is simply no room and so that is not an issue for us as Mr. Blinn was talking about.
Chairman O’Connell asked Mr. Olsen, ”Do you have any numbers you could share with the committee, as far as this?”
Mr. Olsen replied, “Madam Chair, we just made a phone call to see if we could get some numbers put together for you, but they will have to call us back. We will get them to the committee members.”
James F. Nadeau, Lobbyist, Washoe County Sheriff’s Association and Nevada Sheriff’s and Chief’s Association, said:
I don’t want to belabor the issue, we too are opposed on this legislation. If at a later opportunity you would like to explain the numbers that Mr. Blinn relayed to you, I would be happy to explain that system and how that money is dispersed and why.
Chairman O’Connell asked Mr. Nadeau, “Would it be possible for you to put that in writing for us? Senator Rawson has come in to testify on his bill as well and I would hate to detain him, if that would be all right with you?”
Mr. Nadeau, responded, “Most certainly, it’s the repayment of the government for the cost of housing their prisoners, so that is not any type of incentive for us to hold a person for 72 hours.”
Chairman O’Connell, asked if there was anyone else in opposition to S.B 20. As there was none, the Chairman opened discussion on Senate Bill 6.
SENATE BILL 6: Makes various changes relating to emergency management. (BDR 18-233).
Raymond D. Rawson, Clark County Senatorial District No. 6, for the record said:
You hear all the time that this is a simple bill, and this is a 30‑page bill, so no one will really believe that at first glance. But it is really a simple change. I can express that probably the best way by having you look at page 20 of the bill. This is Section 42 and you see a lot of language that is struck. This was original language that established the Division of Emergency Management, it was created within the Department of Public Safety and it created the chief of the division. That is all struck. And then if you look at the second page of the bill, you see that’s all put in as new language now. But there is a name change and it is the Office of Emergency Management, created in the office of the Governor. The real policy issue here is, do we take it out of the Department of Public Safety and put it into the Governor’s office? Now as you look through the bill, you’ll see a lot of things that raise concerns, especially members of this committee, I know you are all vigilant about these things. So, this bill creates no new power or authority in any of these areas, but as you look through the bill, you see things like the Central Repository for Nevada Records of Criminal History and the people that can access that, like gaming, and nursing, and public administrators, and all of the criminal justice departments. You see it drafts protection. It deals with issues like police powers and so on. But that’s all just existing language in this and nothing has changed.
In essence, it is taking it out of public safety and putting it closer to the Governor. Now, why are we doing that? We live in a more dangerous age today and I’ve been carefully shepherding this kind of legislation over a period of years, dealing with issues that deal with emergency management. We have a greater risk now, instant communications need to take place. We don’t need to be going through other divisions, departments, and so on to have the Governor be able to contact this director. So, in short, there are no new powers, there’s no change in status, to my knowledge there is not a change in salary. It is listed here that there is a fiscal note, but I am informed there is not and there is no physical change as far as their location, at this point. I think sometime in the future you’ll see this person housed somewhere close to the Governor, but the Governor is not proposing any construction that would do that.
Chairman O’Connell clarified there was a fiscal note for S.B. 6, and it was going to be $8,144. The first year of the biennium it would be $3,755, the second year, $4,072. She also inquired of Senator Rawson if he had read the most recent audit.
Senator Rawson claimed he had not, but noted in interim finance, he had gone over a lot of those issues. He also called attention to testimony from Mr. Siracusa, who had responded several times to the standing committee and Interim Finance Committee
Chairman O’Connell asked if there was any way the committee could be assured the 70,000 cards that were put into the system and the 45 felony case records which have been lost would be corrected.
Senator Rawson explained those issues deal with the repository, which is not the purpose of S.B. 6. He claimed there were a number of things which do not work well without that information. From a budget standpoint, Senator Rawson said he is sure the Senate can force that.
Frank Siracusa, Chief, Division of Emergency Management, Department of Public Safety, clarified a couple of issues for the committee. The Division of Emergency Management was not responsible for the criminal history repository. He said the Division of Emergency Management’s mission was to insure the State of Nevada and local governments were prepared to respond to and recover from any emergency or disaster. The division coordinated all State assets, and resources in support of local government, and it was critically important in that capacity to have a direct chain of command to the Governor’s office because of the allocation of State assets and resources. Mr. Siracusa also pointed out the direct relationship between local government, and the importance of the single point of contact between local government and State and federal governments. In the programs initiated and the grants that came through the federal government, which funneled through the Division of Emergency Management going out to local governments, it required a day-to-day communication with the Governor’s office. He commented this change was following suit with what was happening nationally. Most emergency management agencies, whether at the local, county, or state government level, typically reported to the chief executive of that particular branch of government because of the nature of the types of activities they get involved in. The fiscal note indicated a paper move. He said the division was moving the budget accounts out of the Department of Public Safety, into the Department of Administration. Mr. Siracusa admitted no knowledge of a fiscal cost associated with that, but said conceivably, there could be some minimal costs associated, but added, there was nothing being moved or relocated that would cause any type of fiscal impact on the State.
Senator Tiffany asked if S.B. 6 would usurp an establishment of a homeland security office or would it be an addition to it.
Mr. Siracusa responded, the Department of Homeland Security looks at many different levels: borders, immigrations, and intelligence information. At the state level there is an infrastructure in place with state emergency management agencies nationwide. He also stated, at the local level, every one of the political subdivisions within the State has an office of emergency management that the Division of Emergency Management assists in providing funding and technical support. Emergency management is an all-hazards approach, the focus on all hazards, man-made or technological, or the results of a terrorist act. He mentioned the Governor created a position and appointed a homeland security advisor. The position focuses on homeland security terrorism issues and advises the Governor in those areas, and acts as a point of contact with the federal Department of Homeland Security. Mr. Siracusa said there were no plans to create a Nevada department of homeland security, currently there is already an infrastructure in place. There is constant communication between the Division of Emergency Management and the Department of Homeland Security, but that focuses generally toward terrorism. Mr. Siracusa reiterated the purpose of the Division of Emergency Management is to deal with any State emergency including a terrorist attack.
Senator Tiffany asked if the Division of Emergency Management used the emergency alert system.
Mr. Siracusa answered the division used the emergency alert system as well as other types of notification to notify all parts of its public safety infrastructure.
Senator Tiffany wanted clarification if this would include a nuclear waste spill or anthrax, and if the Division of Emergency Management would be involved.
Mr. Siracusa answered in the affirmative, and also mentioned the division’s approach was an all-hazards approach, and was the same whether they respond to a fire, a spill, or a terrorist event.
Senator Rawson mentioned the legislation gives broad power to the division if anything occurs that causes significant harm or risks a significant number of people. He said, “We are signators to the EMAC compact [Emergency Management Assistance Compact], having signed that in the past, then we fit into all of that information.”
Senator Tiffany noted having more emergencies to respond to broadens the division’s powers.
Mr. Siracusa stated it is much more effective and efficient to deal with an all‑hazards approach. Senator Rawson mentioned it was impressive to see the division in action, and he noted the previous anthrax scare as an example.
Mr. Siracusa explained one more aspect of the Division of Emergency Management’s responsibilities is the recovery, which can go on for a long time.
Senator Care commented S.B. 6 is an efficient form of reorganization or renaming. He questioned sections 19 and 20, the powers of a peace officer, and asked if they would be broader or wider then they were currently.
Senator Rawson affirmed the powers of a peace officer would remain the same under S.B. 6.
Senator Titus, asked if a situation comparable to what happened in Illinois with the train derailment and hazardous materials spill, would be a situation handled by the Department of Emergency Management.
Mr. Siracusa responded in the affirmative.
Chairman O’Connell asked if there were any present wishing to speak in favor of or opposition to S.B. 6. As there were none, she closed the hearing and adjourned the meeting at 3:27 p.m.
RESPECTFULLY SUBMITTED:
Tara DeWeese,
Committee Secretary
APPROVED BY:
Senator Ann O'Connell, Chairman
DATE: