August 2018

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Read content from the “Civil Rights” issue of COMMUNIQUÉ (August 2018), the official publication of the Clark County Bar Association online today. This issue features content written by members of Nevada’s legal community, including the following articles:

In the print edition, readers can find features related to the practice of law in Nevada, written by by leaders from the bench and bar, including:

  • “Don’t Stand By When You See Injustice” By CCBA President John P. Aldrich, Esq.
  • “The Road to Recovery: Veteran’s Court 101” By Las Vegas Justice Court Judge Harmony Letizia
  • “Nevada Appellate Court Summaries” by Joe Tommasino, Esq.
  • “Pro Bono Corner: A CAP Attorney’s Rewarding Experience” By Wayne Hardy, Esq.
  • “Departments: Bar Business, Member Moves, New Members, and Court Changes”

© 2018 The following articles were originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (August 2018). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.


10 Things to Know When Representing Prisoners in Civil Rights Claims

Lauren Calvert

By Lauren Calvert, Esq.

So you’ve been appointed to represent a prisoner in a pro se action or volunteered to accept an inmate’s pro bono case. Congratulations! Prisoners’ rights lawsuits have an important impact on prisons, even if you don’t prevail. Court decisions in prisoners’ rights cases are responsible for better prison living conditions, fairer administrative practices, more access to the courts, more open communication with the outside world, and more opportunities for inmates to practice a variety of religious faiths. If this is your first prisoner rights case, here are ten quick tips that can help you and your client navigate through litigation.

1. Establish a Sound Relationship with the Client

Determine where your client is located using the Department of Corrections Inmate locator online at http://doc.nv.gov/. Inmates are often transferred. Write to your client as soon as possible, as communicating with your client can be the most frustrating part of representation. Inmates cannot receive phone calls, and the times at which they are able to call you may be sporadic. Much of your communication may be done through the mail, so the turnaround time to receive information can be lengthy. Make sure that all mail you send your client is clearly marked “Confidential attorney-client communication.” If your client has relatives or friends with whom he or she regularly speaks, develop a relationship with those persons, too.

2. Visit the Client as Soon as Possible

Do not merely show up at a correctional facility expecting unfettered access to your client. Contact the prison or jail’s legal liaison or coordinator to determine when can you visit; what must you submit, if anything, in order to visit; and what can you bring with you.

3. Make Use of the Screening Order

A Federal Section 1983 action is a commonly filed federal complaint alleging a violation of a prisoner’s civil rights. These cases are subject to a “screening order” by the federal courts that must first decide if the prisoner’s complaint has merit. Once the federal court decides such, the prisoner’s case may proceed. There is often thorough analysis from the court on each of the claims a prisoner has brought and recommendations on amending the complaint.

4. Address Exhaustion of Administrative Remedies First

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, mandates that no action can be brought by a prisoner with respect to prison conditions under section 1983 or any other Federal law until all administrative remedies are exhausted. The PLRA applies even if the administrative process cannot give the relief the prisoner seeks (such as sufficient monetary damages). Prisoners often encounter difficulty navigating the administrative and appeals process, which may end the case quickly. The court must resolve this exhaustion issue before any other aspect of the case proceeds.

5. Determine Whether an Amended Complaint Should be Filed

A pro se complaint can often be verbose, disorganized, difficult to follow, and possibly illegible. Your investigation may unearth causes of action not present in the pro se complaint, or it may have named improper parties or parties you have determined are not responsible under applicable civil rights provisions. To determine proper defendants, review any disciplinary report, offenders grievances, incident reports, internal affairs investigations, sign-in logs and medical records. Also consider a correctional facility’s contractors, such as food providers and medical services providers.

6. Pare Down Your Claims

When assessing what claims to include in the amended complaint, keep it simple. Causes of action are based on the U.S. Constitution, its amendments, and applicable federal statues (like the ADA). Causes of action such as excessive use of force or failure to provide adequate medical care are also common.

7. Address Immunity Defenses

Certain officials enjoy absolute immunity when performing within the scope of their official duties. Others, such as police officers, do not, and may require a qualified immunity analysis. Either way, immunity confers upon officials “a right, not merely to avoid ‘standing trial,’ but also to avoid the burdens of ‘such pretrial matters as discovery,’” so it must be dealt with early on. Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir. 2010).

8. Don’t Count on Vicarious Liability

One unique aspect of Section 1983 litigation is that there is no vicarious liability. A municipality cannot be held liable under Section 1983 for the unconstitutional acts of an employee simply because the employee was acting in the course and scope of his or her employment at the time that the constitutional violation occurred. A local government unit can only be held liable under Section 1983 when the constitutional violation was caused by a policy statement, ordinance, regulation or decision officially adopted or promulgated or for deprivations pursuant to a governmental custom. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690-91 (1978).

9. Keep Track of Your Hours

You can get paid if you help your client obtain at least some relief. Under Section 1988, a court may award the prevailing party in a Section 1983 lawsuit reasonable attorney’s fees as part of the costs. In doing so, the court “must strike a balance between granting sufficient fees to attract qualified counsel to civil rights cases and avoiding a windfall to counsel.” Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008).

10. Keep Your Cool

Keep in mind your client is imprisoned, lacks resources, lacks access to the outside world, and will encounter difficulty communicating with you. Your client also has a lot of time on his or her hands and can require more hand-holding than other clients. That said, while no pro bono attorney recruited by the court to represent a prisoner in a civil case has faced a disciplinary or malpractice action, prisoners know how to complain to disciplinary boards.

Lauren Calvert is an attorney with the Van Law Firm, where she specializes in plaintiff-side litigation and personal injury.


New Laws Help Transform Sex Trafficking Victims to Survivors

Jon Leleu

By Jon Leleu, Esq. and Kerrie Kramer

Kerrie Kramer

Human sex trafficking is a growing epidemic in our nation. Nevada in particular has seen a steady increase in trafficking cases over the years and the upsurge is staggering. According to data provided by the National Human Trafficking Hotline website, 199 cases of trafficking in Nevada were reported in 2017, compared to just 56 cases in 2012. See https://humantraffickinghotline.org/state/nevada, last visited 7/9/2018. With an increase of 255 percent being reported by just one organization, it is evident that trafficking is on the rise at an alarming rate, and will likely continue in that direction as we continue to see an influx in tourism, enhanced by the growth of professional sports.

During the weekend of the Conor McGregor/Floyd Mayweather fight, Las Vegas experienced a substantial uptick in prostitution related arrests. An August 29, 2017 article in the Las Vegas Review Journal reported that during the first weekend in August, the Las Vegas Metropolitan Police Department made 34 prostitution related arrests. Just 3 weeks later, during the fight weekend, 118 arrests were made, reflecting an increase of 247 percent. Lacanlale, Rio, “Las Vegas prostitution arrests spike during Mayweather-McGregor fight weekend” Las Vegas Review Journal, August 29, 2017. These types of arrests and possible convictions can lead to a lengthy and troublesome criminal record. It becomes even more problematic when the individual arrested and convicted of these crimes is being forced into this life at the hands of a pimp. Now the individual has a criminal record to go with a life they did not choose, and desperately want out of.

When individuals have been able to extricate themselves from sex trafficking, they are often left with nothing. The path to reintegrate themselves into a life outside of trafficking becomes challenging, most notably when seeking employment. Many of these individuals have accumulated multiple arrests and convictions that include loitering, trespassing, and solicitation. Upon disclosure of these charges, employers are quick to assume the applicant was engaged in prostitution and determine them to be unfit for employment. Reasonably, this type of setback can drive an individual right back into the sex trade, as it is perceived that it is the only means by which they can earn a living.

As the issue of trafficking victims struggling to find work became more prevalent in Nevada, the issue found its way to the legislature. In 2011, Assemblyman and former Speaker of the Assembly, John Hambrick (R-Las Vegas) sponsored AB 6, which allowed victims of sex trafficking to vacate their convictions for engaging in or soliciting prostitution. While the legislation was a move in the right direction, there was opportunity for a broader scope. Oftentimes, when individuals are arrested for prostitution, they are charged with loitering or trespass as a way to have them removed from private property. Accordingly, during the 2015 Nevada State Legislative Session, on behalf of our pro bono client, The Cupcake Girls, we partnered with Assemblyman Elliot Anderson (D-Las Vegas) and lobbied the passage of AB 108, which added the convictions of trespass and loitering to the list of convictions in AB 6 that can be vacated. It was a great legislative victory for survivors of human trafficking, but the victory was short-lived.

Despite the expanded scope of convictions which could be vacated, through our representation of survivors before the courts (also pro bono), we learned the laws, while beneficial, were also cumbersome. By failing to specifically address jurisdiction in AB 6 (2011) and AB 108 (2015), victims were required to go before each and every court of conviction to vacate their judgments of conviction; making an already arduous and complicated process even more cumbersome and unappealing to victims. To solve the issue, we partnered with Assemblyman and Chairman of the Assembly Committee on Judiciary, Steve Yeager (D-Las Vegas) during the 2017 Legislative Session to pass AB 243, which allows multiple convictions to be consolidated and heard before a court of competent jurisdiction, whether it be Justice Court or District Court. Additionally, victims may also have their records sealed at the same time, to ensure a completely clear record.

It is imperative for trafficking survivors to be able to pick up the pieces of their lives and move on with the means to find meaningful employment. Without the ability to financially support themselves and their families, the cycle cannot be broken and recidivism soars. As such, the value of these laws is evident, principally in their means to help survivors clear their records and provide a foundation for the opportunity to break away from trafficking and not be penalized in the job market by the stigma these arrests and convictions so often tag to them.

Jon Leleu, Esq. is a Director at Fennemore Craig, PC, and focuses his practice on government affairs, state and local tax, and real estate. Kerrie Kramer is a certified paralegal and lobbyist at Fennemore Craig, PC, and lobbies issues ranging from licensing and permitting to tax and sex trafficking. Jon and Kerrie are also registered lobbyists (NV/IL).


Securing the First Right of Citizenship for the First Americans: The Continuing Struggle of Native Americans for the Right to Vote

James T. Tucker

By James Thomas Tucker, Esq.

This year marks two important milestones in the progression of the first Americans, our Nation’s indigenous population, to secure equal access to the political process. Arizona celebrates the seventieth anniversary of Harrison v. Laveen, a 1948 decision that recognized for the first time that American Indians could vote in state elections. That same year, Native Americans won the right to vote in New Mexico after prevailing in Trujillo v. Garley. To the casual observer, the victories by Frank Harrison and Miguel Trujillo seem astonishing because Congress had already twice recognized the truism that our Nation’s first people were United States citizens: in the Indian Citizenship Act of 1924, and again in the Nationality Act of 1940. But Arizona and New Mexico were not the last states to recognize the fundamental right of Native voters. Utah would not do so until 1956.

State recognition did not lead to equal voting rights. Disabling literacy tests prevented hundreds of thousands of Native voters who were denied schooling the ability to register to vote. Language barriers resulting from the absence of schools on tribal lands compounded that disenfranchisement. County and local governments also actively targeted tribal lands for political exclusion by gerrymandering practices such as in Apache County, Arizona, which packed Natives comprising a majority of the eligible voters into a single district, violating equal population (one person, one vote) requirements. Only with the passage of the 1970 and 1975 amendments to the federal Voting Rights Act, which banned literacy tests and required assistance be provided to limited-English speaking Native voters, did some of those barriers begin to fall.

Without question, indigenous voters have made substantial progress. In primary elections earlier this year, Native candidates achieved two stunning victories. In Idaho, Paulette Jordan, an enrolled member of the Coeur d’Alene tribe, became our country’s first major party nominee for governor. In New Mexico, Democrat Deb Haaland, an enrolled member of the Pueblo of Laguna, is poised to become the first Native American woman elected to Congress from her heavily Democratic district. Both follow in the footsteps of other ground-breaking moments for Native candidates: Charles Curtis, a member of the Kaw Nation who served as the first Native Vice President of the United States from 1929 to 1933 and the first Native United States Senator; William Paul, a member of the Tlingit Nation who was the first Alaska Native elected to the Territorial Legislature in 1925; and Byron Mallott, also Tlingit, who became the first Alaska Native elected to statewide office in 2014, to name just a few.

Yet despite how far Natives have come, much work remains to be done. In Alaska, it took nearly a decade and several lawsuits, including Nick v. Bethel and Toyukak v. Treadwell, to secure fledgling efforts by the state to provide language assistance to limited-English speaking Gwich’in and Yup’ik voters. In San Juan County, Utah, efforts are ongoing to enforce federal court orders in three separate cases involving intentional discrimination by County officials against Navajo voters: the elimination of gerrymandered school board and county commission districts that allowed non-Natives to control all government activities despite being in the minority; and a switch to all mail-in voting to deny Navajo voters to in-person polling places and the language assistance they need to participate in elections. In the past few months, San Juan County officials have removed two Navajo county commission candidates from the ballot in a transparent effort to circumvent the federal judge’s rulings in the county redistricting cases.

Closer to home, lack of in-person registration and voting opportunities continue to deny Native voters in Nevada with equal access to the political process. In October 2016, in Sanchez v. Cegavske, Judge Miranda Du granted a preliminary injunction to members of northern Nevada tribes seeking in-person early voting and Election polling places. Native voters throughout the state continue to face substantial barriers to voting that are exacerbated by geographic isolation, lack of Internet access, poverty, and historical distrust of federal, state, and local governments that engaged in cultural (and even physical) genocide in the nineteenth and twentieth centuries. In Elko County, members of the Shoshone and Paiute tribes on the Duck Valley Reservation have a voter registration rate below twenty percent, reflective of living in the region of Nevada identified by the Census Bureau as having the hardest to count population. The Duckwater Reservation in Nye County (Nevada’s largest county and the nation’s third largest county) faces even greater challenges. The two closest in-person voter registration and early voting sites are located in Tonopah and Pahrump, roundtrip drives of over five hours and ten hours, respectively, for voters lacking access to reliable transportation.

Led by the Native American Rights Fund, the Native American Voting Rights Coalition is working through grassroots organizing, legislative and policy efforts, and litigation, to remove these barriers. A recent series of nine field hearings in seven states resulted in testimony from nearly 125 witnesses about steps needed to secure voting rights for the First Americans. A detailed report of findings from those hearings will be released later this year. Only through vigilance of the fragile gains made by Native voters and continuing efforts to eliminate the remaining obstacles can the visions of Frank Harrison and Miguel Trujillo be fully realized.

James Thomas Tucker, Esq., is an attorney with the law firm of Wilson Elser LLP in Las Vegas, Nevada. He is a member of the National Advisory Committee, a three-year appointment by the Director of the U.S. Census Bureau in which the 32 NAC members provide input on race, ethnic, and other communities for improved census operations, survey and data collection methods. He serves as the Pro Bono Voting Rights Counsel to the Native American Rights Fund.


About COMMUNIQUÉ

COMMUNIQUÉ is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.

© 2018 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

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COMMUNIQUÉ is mailed to all paid members of CCBA, with subscriptions available to non-members for $75.00 per year. For advertising information and editorial policy, please contact Steph Abbott at (702) 387-6011 or stephabbott@clarkcountybar.org.