NEVADA NURSES – CALL FOR A FREE CONSULTATION REGARDING WRONGFUL, UNFAIR, OR UNEXPECTED DISCIPLINARY PROCEEDINGS

Matthew Beckstead Law wants to STOP the Nevada State Board of Nursing from wrongly, unfairly, or unexpectedly branding Nevada’s nurses with a permanent, indelible Scarlet Letter on their permanent records. Sometimes, this heavy-handed approach is highly prejudicial and far outweighs the benefits to the public in the Board of Nursing’s important mission to protect the public. We want to help put a stop to the shame & humiliation which can travel around the country and affect other state licenses and cause additional fees and expenses. Please consider the following questions:

  • ARE YOU A LICENSED NEVADA NURSE WHOSE LICENSURE WAS WRONGLY, UNFAIRLY, OR UNEXEPECTEDLY AFFECTED BY THE NEVADA STATE BOARD OF NURSING’S DISCIPLINARY PROCEEDINGS AGAINST YOU?

 

  • DID YOU FAIL TO RECEIVE NOTICE OF A PENDING LICENSE-RENEWAL DEADLINE?

 

  • ARE YOU EMBARRASSED OR ASHAMED BY THE PUBLIC NATURE OF YOUR DISCIPLINE?

 

  • DO YOU FEEL THAT YOU WERE WRONGLY DISCIPLINED BY THE STATE BOARD?

 

  • DO YOU HAVE AN OTHERWISE “CLEAN” RECORD WITH THE STATE BOARD?

 

  • DID THE STATE BOARD ASK YOU TO SIGN-AWAY YOUR CONSTITUTIONAL RIGHTS?

 

  • HAS A MINOR LICENSING ISSUE CAUSED MAJOR HEADACHES FOR YOUR CAREER PATH OR JOB PROSPECTS?

If you answered yes to some or all of these questions, you may be entitled to compensation. Please call or email Matthew Beckstead Law, LLC, immediately, to schedule a free consultation — (702) 430-4513, admin@matthewbecksteadlaw.com.

You pay no attorney’s fees unless we win.*

In liberty,

Matthew B. Beckstead, Esq.

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DISCLAIMER: This site is not intended to form an attorney-client relationship, it should be used for informational purposes only, and it should not be construed, and is not intended to serve, as legal advice. The facts and circumstances of your life may affect how and whether to make particular decisions while seeking legal relief and/or remedies. It is very likely that seeking legal advice from a licensed attorney is your best option.
*You may be liable for the opposing parties’ fees and costs

Introduction to short-term rental programs (such as Airbnb) in Nevada

DISCLAIMER: This blog post is not intended to form an attorney-client relationship, and it should be used for informational purposes only, and it should not be construed, and is not intended to serve, as legal advice. The facts and circumstances of your life may affect how and whether to make particular decisions while seeking legal relief and/or remedies. It is very likely that seeking legal advice from a licensed attorney is your best option.

 

I want to clear the air on short-term rental programs (such as Airbnb) in Nevada. While Clark County imposes heavy restrictions, Henderson allows short-term rentals of your property for 7 days or more. While Clark County’s website, last I checked, bluntly states that short-term rentals are illegal in Clark County, the actual analysis is far more nuanced than that. For example, is your property actually in “Clark County?” The Clark County ordinance only applies to unincorporated Clark County, not to other municipalities that are technically within the outer borders of Clark County. This was confusing for me, before learning that the difference matters here, because I grew up in the Clark County School District, in Henderson schools.

But if you’re trying to decide whether to list your property on a site such as Airbnb, I would determine where your property sits (Las Vegas, Henderson, unincorporated Clark County, etc.) before listing your property. Then, you need to be sure you’re complying with the appropriate law. At last reading, a rental of 7 days or more is okay in Henderson, but is not allowed in unincorporated Clark County.

Please stay tuned for more on this topic. I will be expanding on this analysis as time allows. If you mention this post, you can call me for a free consult (a $50 value) about your property and whether you have any legal basis for listing your property on Airbnb or other similar site(s).

 

In liberty,

Matthew B. Beckstead, Esq.**

** Licensed in Nevada

© All Rights Reserved. License granted to the general public to reproduce and distribute to other members of the general public for informational purposes, subject to condition that this publication not be altered in any way, including author name and contact information.

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Matthew Beckstead Law is challenging lengthy, 2-year delay in adjudication with petition to Supreme Court of Nevada

Matthew Beckstead Law is pleased to announce that it has filed a petition to the Supreme Court of Nevada to seek justice for its client. Our client has awaited adjudication for more than two years, and this wait continues. The petition alleges that Judge Jennifer Elliott, a family-court judge in Clark County, Nevada, has failed to enter a final order adjudicating a motion to modify child support for more than 2 years (in excess of 800 days). The petition alleges that this failure to make a final decision is willful and intentional; it also alleges that this failure to make a decision is still happening. Also, Judge Elliott flat-out denied a motion to strike several papers and orders that were improperly filed and obtained, denying the motion without a hearing and vacating the hearing scheduled for August 2018, in violation of Petitioner’s due-process right to be heard that comes from the Due Process Clause of the Constitution of the United States. Matthew Beckstead Law intends to vigorously resist Judge Elliott’s apparent abuses of discretion in the family-court case. Upon these bases, the petition seeks relief from this State’s excellent Supreme Court, including departmental reassignment of the case and a writ vacating Judge Elliott’s interlocutory order filed last month.

A copy of the petition to the Supreme Court of Nevada is available here.

 

Why Privacy Matters – A Review of the Past Can Inform the Present

DISCLAIMER: This blog post is not intended to form an attorney-client relationship, and it should be used for informational purposes only, and it should not be construed, and is not intended to serve, as legal advice. The facts and circumstances of your life may affect how and whether to make particular decisions while seeking legal relief and/or remedies. It is very likely that seeking legal advice from a licensed attorney is your best option.

 

 

A Brief Introduction to the History of Privacy Law in the United States of America

 

The United States Constitution was submitted to Congress in the Fall of 1787. Several signatories, including George Washington, Alexander Hamilton, and Benjamin Franklin, had just unanimously ordered that their draft constitution be submitted to delegates from each of the member states of the United States of America.

The Declaration of Independence had just been signed 11 years earlier, on July 4, 1776. Perhaps most famously, the Declaration of Independence states, in part:

 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . .

 

The Declaration of Independence General Congress, Assembled, United States of America (Jul. 4, 1776).

In furtherance of these Rights – Life, Liberty, and Happiness – the United States of America officially ratified the first ten amendments to the U.S. Constitution, also known as the Bill of Rights, on December 15, 1791. One of these amendments, the Fourth Amendment, protects against “unreasonable searches and seizures,” providing for “[t]he right of the people to be secure in their persons, houses, papers, and effects.” See U.S. Const., Am. IV.

The Chief Justice for the Supreme Court of the United States reminded this country, recently, that “[t]he Founding generation crafted the Fourth Amendment as a ‘response to the reviled general warrants and writs of assistance of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.’” Carpenter v. U.S., 585 U.S. _____ (2018) (slip op., at 4-5) (internal quotation marks omitted) (emphases added) (citing Riley v. California, 573 U.S. _____, _____ (2014) (slip op., at 27)).

In fact, “as John Adams recalled, the patriot James Otis’s 1761 speech condemning writs of assistance was ‘the first act of opposition to the arbitrary claims of Great Britain’ and helped spark the Revolution itself. Id. (emphasis added) (quoting Riley v. California, 573 U.S. _____, _____ (2014) (slip op. at 27-28) (citation omitted)).

 

General Warrants and Writs of Assistance – Why Did the Founding Generation Hate Them?

 

It is probably obvious to most people why a general warrant is something that the Founding Generation of the United States hated, once they understand the answer to the following questions: What is a general warrant? What is a writ of assistance? And why should I care?

According to the Washington Post:

 

A general warrant is a document issued by the executive branch, or a court. It is not based on any prior evidence of wrongdoing. It lacks particularity regarding the person or place to be searched, or the papers or records to be seized. It is not supported by oath or affirmation.”

 

Farrell, H., America’s founders hated general warrants. So why has the government resurrected them?, The Washington Post (Jun. 14, 2016) (last accessed Jun. 30, 2018), available at https://www.washingtonpost.com/news/monkey-cage/wp/2016/06/14/americas-founders-hated-general-warrants-so-why-has-the-government-resurrected-them/?utm_term=.18f2cae71b99. Mr. Farrell continued, explaining that, “[f]or centuries prior to the U.S. founding, English jurists and legal scholars rejected general warrants as the worst exercise of tyrannical power.Id. (emphasis added). The Founding Generation continued this centuries-old tradition, and “[s]tate after state went on to outlaw general warrants in their constitutions, before the Fourth Amendment prohibited it in the federal Constitution.” Id.

A writ of assistance is essentially a court order, “used especially in colonial America authorizing a law officer to search in unspecified locations for unspecified illegal goods.” Writ of Assistance, Merriam-Webster (last accessed Jun. 30, 2018), available at https://www.merriam-webster.com/dictionary/writ%20of%20assistance.

A writ of assistance is not allowed under U.S. law for a very good reason – it leaves too much authority in the hands of a law-enforcement officer to search at will, without further court intervention. I once heard an anecdote, during law school, that consent to a search meant a complete rummaging-through of your belongings – even slashing your seats and destroying your home’s furniture at will. What thuggish behavior. How exactly, if true, does this behavior further the reason for this country’s founding in the first place, i.e., to secure our inalienable rights, including, but not limited to, Life, Liberty, and the pursuit of Happiness.

With the ever-increasing criminality of seemingly standard behavior, we should all care. America, last I checked, actually had the highest incarceration rate in the world. These two facts demonstrate why everyone should care about privacy law, including the idea of general warrants and writs of assistance. A government that uses unprecedented levels of your information against you in a court of law is, arguably, behaving in a manner that mimics the general warrants and writs of assistance that the Founding Generation and those who preceded them hated for hundreds of years.

It is refreshing to see the highest court in the United States limit the ability of the government to obtain your information without a warrant. This idea that the court system should review law-enforcement officers’ actions to ensure that the executive branch of the system is acting responsibly – not like a tyrant at the helm of a dictatorial state might – has been with the United States of America from its inception.

 

In liberty,

Matthew B. Beckstead, Esq.**

** Licensed in Nevada

© All Rights Reserved. License granted to the general public to reproduce and distribute to other members of the general public for informational purposes, subject to condition that this publication not be altered in any way, including author name and contact information.

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Wiretapping – It’s the word for secretly listening to someone who is talking to someone else by using their devices

DISCLAIMER: This blog post is not intended to form an attorney-client relationship, and it should be used for informational purposes only, and it should not be construed, and is not intended to serve, as legal advice. The facts and circumstances of your life may affect how and whether to make particular decisions while seeking legal relief and/or remedies. It is very likely that seeking legal advice from a licensed attorney is your best option.

NOTE: For background material, start with my initial blog post regarding wiretapping law in Nevada.

So, in 2017, the Supreme Court of Nevada established that tape-recording a phone call qualifies as an “intercept” for purposes of NRS 200.620, the criminal statute applying to us all that makes it a crime (a felony, in fact) to commit wiretapping in Nevada. See Ditech Financial, LLC v. Buckles ex rel. Himself, 401 P.3d 215, 217 (Nev. 2017) (citations omitted)). Under current Nevada law, any intercept requires two-party, prior consent, see id. – otherwise the intercepting party is subject to felony charges, see NRS 200.690. NRS Chapter 200 applies to everyone, so we should all understand how it governs our behavior. Chapter 179 appears largely irrelevant for the general public’s conduct, though the Supreme Court of Nevada has, in the past, examined it for the purposes of Chapter 200.

The Ditech opinion begs the question, then – what else qualifies as an “intercept?” [1] If a person BCCs someone on an email using a computer while on Nevada soil, is this an “intercept”? What about quietly listening in on a phone call when one person is using speakerphone and the other person does not know or appreciate that a third person is listening? For now, it appears that the definition of “intercept” is limited to “the aural acquisition of the contents of any wire, electronic[,] or oral communications through the use of any electronic, mechanical[,] or other device or of any sending or receiving equipment,” NRS 179.430. The Supreme Court of Nevada could, if it were so inclined, expand upon this definition for purposes of NRS Chapter 200, because “intercept” is not technically defined there. But for now, the Chapter 179 definition apparently reigns supreme. There is, though, more to the issue – Please read on and decide for yourself.

Returning to the original line of questioning – what is an “intercept?” What the heck does the Chapter 179 definition of “intercept” even mean? Look no further, I’ll break it down for you:

  • “the aural acquisition of the contents”

For guidance, we turn to the handy dandy dictionaries – Black’s Law Dictionary has defined “aural acquisition” to mean, “Under the Federal Wiretapping Act, hearing or tape-recording a communication, as opposed to tracing its origin or destination.” Black’s Law Dictionary 127 (7th ed. 1999) (emphasis added) (citing 18 USCA § 2510(4)). Not Nevada law, obviously, but certainly enlightening. What else have we got? Merriam-Webster defines “aural” to mean, “of or relating to the ear or to the sense of hearing.” Aural, Merriam-Webster (emphasis added) (updated May 25, 2018), https://www.merriam-webster.com/dictionary/aural (last accessed May 31, 2018).

Continuing, the phrase “the contents” is self-explanatory and should be taken to mean the substance of the communication itself.

  • “of any wire, electronic[,] or oral communications through the use of any electronic, mechanical[,] or other device or of any sending or receiving equipment,”

For conduct to qualify as Chapter 200 “wiretapping,” it must be an “intercept” of a “wire communication.” We have already seen the Supreme Court of Nevada adopt Chapter 179’s definition of intercept, but it may step away from this definition under the right circumstances. It is, by no means, bound to continue honoring Chapter 179’s definition for purposes of analyzing Nevada’s wiretapping law. The Supreme Court of Nevada seems to have sidestepped the issue of what qualifies as an “intercept” under Chapter 200, in Sharpe v. State, 131 Nev. Adv. Op. 32, 350 P.3d 388 (2015). It appears to have done so because the Sharpe opinion concluded that “wire communication” means cell phone calls and text messages. Id. at 391. But it did not, again, consider the definition of “intercept” during its analysis; it probably should have considered it, because it appears that Nevada law could be interpreted incorrectly to limit the term “intercept” under Chapter 200 to “aural acquisition,” NRS 179.430. See also Ditech Financial, LLC v. Buckles ex rel. Himself, 401 P.3d 215, 217 (Nev. 2017) (citations omitted)); infra. There is no way to read Chapter 179’s definition of “intercept” to include things like text messages, IMs, Facebook messages, etc. (“written communications”), but Chapter 200’s language could, and should, be interpreted to prohibit wiretapping of written communications.

In fact, I predict that the Supreme Court of Nevada would expand the term “intercept” under Chapter 200 (which applies to all of us) beyond the phrase’s meaning in Chapter 179 (which does not), when faced with a wiretapping case involving a member of the general public in Nevada. Here’s why: NRS 200.610(1)’s definition of “wire communication” (which includes written communications) is broader than the one the definition of “intercept” (which is limited to aural communications, see NRS 179.430) that the Supreme Court of Nevada used in its Ditech analysis – which was fine, because the form of communication was not at issue in that case, since the Ditech opinion was analyzing whether telephone calls intercepted outside of Nevada’s borders fell within the scope of Nevada’s wiretapping laws. It was not faced with the question of whether or not a written communication falls within the scope of Nevada’s wiretapping laws.

The Supreme Court of Nevada will probably acknowledge that Chapter 200’s definition of “wire communication” is different than Chapter 179’s – and Chapter 200 is far more applicable to the general public, so this is an important point for everyone to understand. Under Chapter 200, “wire communication” applies to “the transmission of writing, signs, signals, pictures[,] and sounds,” NRS 200.610(2) (emphases added). The Supreme Court of Nevada would defy logic and convention to limit the definition of “intercept” under Chapter 200 to “aural acquisition” only. Under Chapter 179, Nevada’s Legislature did limit this definition; under Chapter 200, “intercept” is not defined at all. It is fair to expect that the Supreme Court of Nevada would examine the entire statutory scheme and see that Chapter 179’s definition is illuminating but cannot be coherently incorporated into Chapter 200 without producing an absurd result.

  • So, what’s the point?

Well, the point is that the general public should be careful about surreptitiously reading, recording, or listening to a conversation to which they are not a party. The law has not caught up to the times in this respect, so it is difficult to know exactly how a criminal proceeding for Chapter 200 wiretapping would pan out. For now, the Sharpe case demonstrates the Supreme Court of Nevada’s willingness to sidestep the issue of defining the term “intercept” under Chapter 200 and to implicitly conclude that written communications are protected by Nevada’s wiretapping law as it pertains to the general public.

“It is unlawful for any person to intercept or attempt to intercept any wire communication” without two-party consent. See NRS 200.620(1). This appears to include listening in while the other communicating party is unaware of your presence; reading an ongoing, written conversation that is happening via text message, Facebook messenger, or similar messaging software program; it could include BCCing a third-party in an email; and it may even include, arguably, screenshotting written messages. The existing ambiguity in the law requires an updated definition of “intercept” in Chapter 200. Nevada’s legislature should catch up to the times, in this area of criminal wiretapping, and clarify the conduct that it intends to prohibit.

In conclusion, the 21st Century brings a whole host of unintended and unforeseen issues, and in this Brave New World it is important to know the law that governs the devices that so many use on a daily basis – our phones, tablets, computers, or GoPros, etc. Stay tuned, because, as previously stated, I will continue to examine this exciting area of law and how it serves (or fails) us during these times.

[1] This blog post is intended to interpret Nevada law only – Federal law is a whole different animal and is not covered here, but I may cover it in the future, time and interest permitting!

 

In liberty,

Matthew B. Beckstead, Esq.**

 

 

** Licensed in Nevada

© All Rights Reserved. License granted to the general public to reproduce and distribute to other members of the general public for informational purposes, subject to condition that this publication not be altered in any way, including author name and contact information.

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Thinking About Recording Your Conversation? Read This and Think Again.

DISCLAIMER: This blog post is not intended to form an attorney-client relationship, and it should be used for informational purposes only, and it should not be construed, and is not intended to serve, as legal advice. The facts and circumstances of your life may affect how and whether to make particular decisions while seeking legal relief and/or remedies. It is very likely that seeking legal advice from a licensed attorney is your best option.

 

This blog article analyzes new case law that clarifies the definition of “wire communication” and holds that the act of recording must occur within Nevada for Nevada’s two-party consent requirement to apply. A person who is physically in Nevada violates Nevada law when he or she records his or her own telephone conversation, and he or she is subject to criminal penalties, unless the person obtains either a court order or a properly obtained ratification pursuant to NRS 200.620(3). See NRS 200.620, 200.690; infra.

 

Nevada law prohibits a person from “intercept[ing] or attempt[ing] to intercept any wire communication,” NRS 200.620(1) (emphasis added), unless the person fulfills both of the following two requirements:

 

  1. Prior consent of one of the parties to the communication.” NRS 200.620(1)(a) (emphasis added); AND
  2. Some emergency situation that makes it “impractical to obtain a court order” authorizing the intercept or attempted intercept. NRS 200.620(1)(b). See also NRS 200.620(3) (requiring, inter alia, that after a completed intercept, “a written application to a justice of the Supreme Court or district judge for ratification of the interception” within 72 hours of the interception).

 

See also Lane v. Allstate Ins. Co., 969 P.2d 938, 939 (Nev. 1998) (concluding that “single party interception must be judicially pre-approved or judicially ratified where an emergency exists to make pre-approval impractical”),[1] cited with approval in Abid v. Abid, 406 P.3d 476 (Nev. 2017).

 

For purposes of NRS 200.620, the Nevada legislature has defined “wire communication” to mean:

 

[T]he transmission of writing, signs, signals, pictures[,] and sounds of all kinds by wire, cable, or other similar connection between the points of origin and reception of such transmission, including all facilities and services incidental to such transmission, which facilities and services include, among other things, the receipt, forwarding[,] and delivering of communications.

 

NRS 200.610(2); see also NRS 200.610 et seq.

 

The definition of the phrase “wire communication” in NRS 200.610(2), including for purposes of NRS 200.620, probably includes cell phone calls and text messages, because, in recent years, the Supreme Court of Nevada has interpreted the phrase “wire communication” (as defined in NRS 179.455) to include cell phone calls and text messages. See Sharpe v. State, 131 Nev. Adv. Op. 32, 350 P.3d 388, 391-92 (Nev. 2015) (interpreting a definition of “wire communication” similar, but not identical, to NRS 200.610(2) to “include[] cellular telephone calls and text messages by its plain terms” when the calls and text messages are “‘made in whole or in part . . . by the aid of wire, cable[,] or other like connection between the point of origin and the point of reception.’” Id. at 392 (quoting NRS 179.455)). See generally Ditech Financial, LLC v. Buckles, 133 Nev. Adv. Op. 64, 401 P.3d 215, 217 (Nev. 2017) (noting that “[t]his court has concluded that ‘the tape-recording of telephone conversations constitutes an intercept,’ and interpreted NRS 200.620 ‘to prohibit the taping of telephone conversations with the consent of only one party.’” Id. (citing Lane v. Allstate Ins. Co., 114 Nev. 1176, 1179, 969 P.2d 938, 940 (1998); David, Ira, Note, Privacy Concerns Regarding the Monitoring of Instant Messaging in the Workplace: Is It Big Brother or Just Business?, 5 Nev. L.J. 319, 330 (2004))). But see Ditech Financial, LLC v. Buckles, 133 Nev. Adv. Op. 64, 401 P.3d 215, 216, 217-218 (“[H]olding that NRS 200.620 does not apply to the recording of interstate calls when the act of recording takes place outside Nevada.”).[2]

 

In Lane v. Allstate Ins. Co., the court considered multiple issues, including whether a person could record their own telephone conversations. 969 P.2d 938, 940 (Nev. 1998). The Lane majority opinion agreed with the district court’s conclusion “that Lane violated the provisions of NRS 200.620 when he tape-recorded telephone conversations with employees of his former employer.” Id. at 941.[3]

 

In the court’s majority opinion regarding the interpretation of NRS 200.620, Justices Maupin, Shearing, and Young concluded that NRS 200.620 requires two-party consent to record a telephone conversation. See Lane, 969 P.2d at 939 (Maupin, J.), 941-42 (Shearing, J., concurring in part). The exception to this general rule is where the recording is pre-approved by a court or is posthumously ratified, within 72 hours, pursuant to NRS 200.620(3). See id. at 941-42 (Shearing, J. concurring in part); see also NRS 200.620(1) (noting that a court order is authorized pursuant to NRS 179.410 to NRS 179.515).

 

So, the takeaway from all of this is that Nevada law considers “willful and knowing” one-party recording of a person’s telephone call, without a court order or subsequent court ratification in the context of an emergency situation, to be unlawful – a Class D Felony, in fact. See NRS 200.690. This includes a cell-phone call, so any person in Nevada who uses an app on their cell phone to record their phone call, without obtaining prior consent from the other caller, has committed a Class D Felony. NRS 200.690 reads, in relevant part “A person who willfully and knowing violates NRS 200.620 to 200.650, inclusive . . . [s]hall be punished for a category D felony as provided in NRS 193.130 . . . [and is] liable” for actual damages, punitive damages, and attorney’s fees and costs. NRS 200.690(1).

 

A regular, civilian citizen might have an argument that the one-party recording was not “willful and knowing,” even if that person has violated NRS 200.620. See Lane v. Allstate, 969 P.2d 938 (Nev. 1998) (Springer, C.J., concurring in part) (“We certainly cannot hold Mr. Lane criminally responsible for violating a statute the meaning of which cannot be agreed upon by the members of this court.”) This argument is weaker today than it was when the Lane opinion was published, because, as noted above, the Supreme Court of Nevada has clarified the law on more than one occasion since Lane, having remained consistent that two-party consent is a must, in the absence of a prior court order or a subsequently obtained ratification pursuant to NRS 200.620(3).

 

I advise against recording a cell-phone call, video-messaging session, landline call, or other similar communication while physically in Nevada, unless you have prior, two-party consent to the recording. To do otherwise is to put yourself at risk of committing a felony.

 

[1] In other words, without judicial pre-approval, a single-party interception must be judicially ratified, have consent of one party, and be made in the context of an emergency, or it is unlawful.

[2] This article does not cover federal law, which could govern a particular intercept or attempted intercept of phone calls, text messages, and/or other communications. Before engaging in such conduct, consult with an attorney who is experienced in such matters.

[3] Lane v. Allstate contains a plurality opinion (1-2-1-1 opinion).  Justice Maupin wrote the majority opinion as to the interpretation of NRS 200.620; Justice Shearing wrote a partial concurrence, with which Justice Young agreed. Chief Justice Springer and Justice Rose each wrote separate dissenting opinions that concurred in the result, i.e., reversing the district court. A plurality opinion is “[a]n opinion lacking enough judges’ votes to constitute a majority, but receiving more votes than any other opinion.” Black’s Law Dictionary 1119 (7th ed. 1999).

 

In liberty,

Matthew B. Beckstead, Esq.**

 

 

** Licensed in Nevada

 

© All Rights Reserved. License granted to the general public to reproduce and distribute to other members of the general public for informational purposes, subject to condition that this publication not be altered in any way, including author name and contact information

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Got Squatters Acting Like Wise Guys? You Have Legal Options for Dealing with Them

DISCLAIMER: This blog post is not intended to form an attorney-client relationship, and it should be used for informational purposes only, and it should not be construed, and is not intended to serve, as legal advice. The facts and circumstances of your life may affect how and whether to make particular decisions while seeking legal relief and/or remedies. It is very likely that seeking legal advice from a licensed attorney is your best option.

 

Got Squatters Acting Like Wise Guys? You Have Legal Options for Dealing with Them

 

If you have  a violent or threatening squatter on your property (even if you are merely an authorized tenant and not the property owner) (for an introduction on squatters, and for more on who qualifies as a squatter, see last month’s post, available at https://www.matthewbecksteadlaw.com/6-steps-to-removing-your-squatters-in-nevada/), you may file an eviction action with your local justice court, such as the Las Vegas Justice Court, as long as you follow certain steps. Ideally, the squatter will scram when he or she understands that you are pursuing legal action. Realistically, this won’t always be the case. Although these steps might seem frustrating, they are probably designed to efficiently address the problem, rather than authorizing an immediate formal eviction action filed in court.

 

Before diving in, it is important to understand who qualifies as a violent or threatening squatter. For purposes of this article, a squatter is “violent or threatening” where he or she “[u]nlawfully holds and keeps the possession of any real property by force or threats of violence,” NRS 40.240(1)(a). If this is the case for you, document (by legal means only) the use of force and/or threats of violence and prepare a notice to surrender, which must be served upon each individual squatter.  A person is a violent and/or threatening squatter even if he or she gained possession of the house without violence or threat and later becomes violent or threatening; there is no requirement that the squatter be violent the entire time in order for you to have legal authority to prepare and serve a notice to surrender.

 

The notice to surrender can be served by “[t]he owner of the real property, an authorized representative of the owner[,] or the occupant who is authorized by the owner to be in possession of the real property,” NRS 40.240(2). As discussed below, you may believe, as I do, that using a professional process server is the best way to serve documents. Notice, too, that the statute does not limit “force” to force against a person – it appears to include any and all force used to further the purpose of holding and keeping the residence. For example, if a squatter kicks the dog to show you she means business and will not leave the property quietly, that appears to qualify as the kind of force the law forbids, and you can begin the process of evicting the violent or threatening squatter. It’s worth repeating – you may not need to follow each of these steps; maybe your violent or threatening squatter(s) will get the message and leave sooner than later.

 

Step 1: Prepare the Notice to Surrender

The notice to surrender that you will serve on your violent and/or threatening squatter must comply with the law (if there is more than one violent and/or threatening squatter, you must prepare a notice of surrender for each individual, otherwise the court lacks jurisdiction to evict that person). To do so, the notice to surrender must do the following:

  1. Inform the squatter* who used force and/or threats of violence that he or she is guilty of forcible detainer (If you don’t know their names, I suggest using “Current Occupant” along with Jane and John Does and physical descriptions. For example, Current Occupant, Jane Doe #1 with the red hair and the dragon tattoo who appears to weigh 90 lbs.). NRS 40.240(2)(a);
  2. Give the squatter 4 judicial days to surrender your residence (It’s useful to think of judicial days as business days: no weekends or court holidays. For court holidays, check the Las Vegas Justice Court’s website – they’re pretty good about keeping their holiday information updated. General rule of thumb? If the post office is closed, the court is probably closed. Don’t forget Nevada Day, though! Or Family Day!). NRS 40.240(2)(b);
  3. Identify your local courthouse, which is based on where the property is, not necessarily where you live (for example, the Carson City Justice Court or the Henderson Township Justice Court). NRS 40.414(3)(a);
  4. Advise the squatter:

 

  1. Of his or her right to contest the matter by filing, before the court’s close of business on the fourth judicial day following service of the notice of surrender, an affidavit with the court that has jurisdiction over the matter stating the reasons why the unlawful or unauthorized occupant is not guilty of a forcible entry or forcible detainer.

 

  1. That if the court determines that the unlawful or unauthorized occupant is guilty of a forcible entry or forcible detainer, the court may issue a summary order for removal of the unlawful or unauthorized occupant, or an order providing for the nonadmittance of the unlawful or unauthorized occupant, directing the sheriff or constable of the county to remove the unlawful or unauthorized occupant within 24 hours after the sheriff’s or constable’s receipt of the order from the court.

 

  1. That, except as otherwise provided in in this paragraph, the owner of the real property, an authorized representative of the owner, or the occupant who is authorized by the owner of the real property to be in possession of the real property, shall provide safe storage of any personal property of the unlawful or unauthorized occupant which remains on the property. The owner, an authorized representative of the owner, or the occupant may dispose of any personal property of the unlawful or unauthorized occupant remaining on the real property after 14 calendar days from the execution of an order for removal of the unlawful or unauthorized occupant or the compliance of the unlawful or unauthorized occupant with the notice to surrender, whichever comes first. The unlawful or unauthorized occupant must pay the owner, authorized representative of the owner, or occupant for the reasonable and actual costs of inventory, moving, and storage of the personal property before the personal property will be released to the unlawful or unauthorized occupant.

 

Step 2: Serve the Notice to Surrender

Ok, now that you have your notice to surrender for each and every squatter, you must serve each and every squatter. Your best bet for serving a notice to surrender is to contact an authorized process server in your area. It makes life simpler, and these folks are more experienced than the average person when it comes to serving notices. If you are going to use self-help and serve it yourself, you do so at your own risk, but the law appears to allow this. See NRS 40.240(2). If you must insist, think it through and be smart and safe about it. It seems worth it, though, to pay a few dozen bucks to the local sheriff’s office to have them do it for you – why not let them handle it?

If you choose to proceed on your own, without the aid of a professional process server, Nevada law has specific requirements for serving a notice to surrender. See NRS 40.280(2). You can “deliver” a copy to your squatter(s) in person, “in the presence of a witness,” NRS 40.280(2)(a), but this is not your best option, because people are crazy.

If the violent and/or threatening squatter is “absent from the real property,” you still have the option and ability to serve the notice to surrender. To do so, you may leave a copy with another adult squatter who is living in your residence and, in addition to leaving a copy with an adult at the residence, you must mail a copy (I suggest doing this via certified mail (using certified mail with tracking at the United States Postal Service, for example)) to the address for your residence and address the notice to “Current Occupant.” See NRS 40.280(2)(b). I can hear you now: “But what if I have one of those locking, community mailboxes and my squatters don’t have access to the mail there?” Doesn’t matter. The law has specific requirements for serving a notice to surrender. So, if you can leave it with the nice squatter, the gray-bearded fellow who smiles at you as you walk by, this is one option at your disposal (just remember to mail a copy, too). Remember, discretion is the better part of valor! Be safe. Be smart. Use discretion. I truly feel that having a professional process server or your local sheriff serve the notice to surrender is the best option, for, perhaps, a dozen reasons, which I will not utter here (Yes, this is a Gandalf the Grey reference, in case you were wondering).

If there is nobody in sight when you arrive, you may post a copy of the notice to surrender on the door or other visible place, but you must also mail a copy (I suggest doing this via certified mail (using certified mail with tracking at the United States Postal Service, for example)) to the residence’s address and address the notice to “Current Occupant.” See NRS 40.280(2)(c).

Later on, if you must go to court in an eviction action pursuant to NRS 40.414, you are going to have to file proof that you served a notice to surrender. See NRS 40.280(4). Remember when I suggested that you to send your notice to surrender via certified mail? Because you kept your tracking number handy and you have your delivery confirmation (maybe you downloaded an authorized copy of the delivery confirmation from the mail carrier’s website and printed it), you can more easily demonstrate for the court that you’ve done well for yourself and followed the legal requirements for serving your notice to surrender. If you used your local sheriff or a private, licensed process server, make sure you keep a copy of their affidavit of service so you can show the court that you served the notice to surrender. See NRS 40.280(4). Attach any documents you have showing you served the notice to surrender to a certificate of service or affidavit, to be filed with the court.

Step 3: Proceed According to the Response from the Squatter(s)

How your violent and/or threatening squatter(s) proceed, after you’ve served the notice to surrender, determines what legal relief you may seek. Here is a discussion of the possible scenarios:

  1. If an individual squatter leaves by 5:00 p.m. on the fourth judicial day, never to come back and having ridden off into the sunset for good, you cannot file for eviction with the court as to that squatter. See NRS 40.414(4)(a). The key word in the statute is “surrender”; a squatter must “surrender the real property” to you, your agent, or authorized occupant. Once each and every squatter has “surrendered” the property, you may safely take possession of the property and secure it, including changing the locks. Whether a particular person has “surrendered” the real property can be a nuanced, detailed legal question that depends on the circumstances of each case. If you doubt that you can show the judge that a particular, individual squatter “surrendered” the real property, consult with an attorney before proceeding.
  2. If an individual squatter formally objects to the eviction proceedings, pursuant to NRS 40.414(4)(c), by 5:00 p.m. on the fourth judicial day, your only option is to file an eviction complaint pursuant to NRS 40.414(5). See NRS 40.414(4)(c). See also NRS 40.414(6)(b)-(d).
  3. If the individual squatter is still there, at the property, but he or she has not formally objected pursuant to NRS 40.414(4)(c), ask the court to find that you have presented sufficient evidence in your complaint “to demonstrate that a . . . forcible detainer has been committed” by that squatter. See NRS 40.414(6)(a). If the court makes this finding, it “must issue an order directing the sheriff or constable of the county to remove . . . [the individual squatter] within 24 hours after the sheriff’s or constable’s receipt of the order from the court,” NRS 40.414(6)(a). If the court issues such an order, make sure your local sheriff or constable receives a copy of the order. If you are unsure of how to proceed, you may ask your local court’s staff for guidance on how to ensure that the sheriff or constable receives a copy for service.

Step 4: Handle the Squatter’s Property According to the Law

Nevada law has specific instructions for handling a squatter’s leftover property. Fortunately for you, it also protects you against some civil and/or criminal liability if the court orders your squatters to leave the property, but you must follow the legal requirements set forth in NRS 40.414 (7). See generally NRS 40.414(7). I may cover these requirements at a later time, but it might just be easier for you to consult an attorney on how to proceed from here. This area gets a bit more complex and nuanced. If you’ve made it this far without a lawyer, congratulations – now might be the time to get one.

Handling Damages to Your Property

If you own the property or are the owner’s authorized representative, you may seek treble damages for “three times the amount at which actual damages are assessed,” NRS 40.240(3). In violent and/or threatening squatter cases, “actual damages” means damages to real property and personal property. NRS 40.240(3).

If you wish to pursue your squatters for damages, you should obtain credible evidence and provide it to the court. This may include photographs and witness testimony from a trustworthy person, for example.

No, I do not think trying to sell squatter property to offset any damage to your property is a good idea, and I’m not sure it’s allowed. See NRS 40.414(7).

 

In liberty,

Matthew B. Beckstead, Esq.**

 

* For purposes of this blog post, the term “squatter” means a person who forcibly detains real property pursuant to NRS 40.240(1)(a).

** Licensed in Nevada

 

© All Rights Reserved. License granted to the general public to reproduce and distribute to other members of the general public for informational purposes, subject to condition that this publication not be altered in any way, including author name and contact information.

 

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6 Steps to Removing Your Squatters in Nevada

6 Steps to Removing Your Squatters

DISCLAIMER: This blog post is not intended to form an attorney-client relationship, and it should be used for informational purposes only, and it should not be construed, and is not intended to serve, as legal advice. The facts and circumstances of your life may affect how and whether to make particular decisions while seeking legal relief and/or remedies. It is very likely that seeking legal advice from a licensed attorney is your best option.

Step 1 – Have Your Squatters Arrested

Nevada lawmakers have made it a crime to be a squatter, which means that police involvement is appropriate when you suspect someone is squatting on your property. This law only applies to a structural building that is intended to be a residence or place for sleeping. The first step in asserting your rights as the property owner is to have the appropriate police department pay your squatters a visit.

Squatting falls into two categories: Housebreaking and Unlawful Occupancy.

Housebreaking happens when a person uses physical force, or changes or alters the locks, to enter “an uninhabited or vacant dwelling” with the knowledge that they do not have permission from you, the property owner, to be there and that person does so with the intent to be a resident or sublet your property to another person. A first offense is a gross misdemeanor. A second and any additional offense is a felony.

Unlawful occupancy happens when someone begins living in your “uninhabited or vacant dwelling” without your permission and the person knows that he or she does not have your permission to live in the residence. A first offense is a gross misdemeanor. A third and any subsequent offense is a felony.

If you suspect you have squatters who are guilty of housebreaking and/or unlawful occupancy, contact the police and provide them with as much information and evidence as you can. Take pictures and/or video (without invading privacy or going crazy – if you find yourself filming intimate squatter moments, for example, you have gone too far and are probably criminally and/or civilly liable for what you’ve done. NO INVASIONS OF PRIVACY!). Keep a notebook of witness names, dates, times, incidents, etc. The more detailed, the better.

Step 2 – Retake Possession of Your Property and/or Change the Locks

After the authorities have handled your squatters and any minor children who may be residing in your house, and everyone is gone, you are then and only then legally authorized to (1) retake possession and (2) change the locks. Doing both is advisable, but at the very least you should change the locks and totally secure the premises so that your squatters or other, new squatters do not get any bright ideas. At the same time that you retake possession and/or change the locks to house, you must post a written notice on the house that complies with Nevada law.

Step 3 – Post the required written notice on your house on the same day you retake possession of your property and/or change the locks, and leave it there for at least 21 calendar days.

Please feel free to download and use any of the following documents:

You must post a written notice on your house when you retake possession and/or change the locks. The mandatory written notice must meet the legal requirements set forth by Nevada law. It must (1) identify the address of your property; (2) identify the court that has jurisdiction over any matter relating to your property; (3) give the date on which you retook possession of your property and/or changed the locks; and (4) give the following advisories to the squatter(s):

  1. One or more locks on the dwelling have been changed as the result of an arrest for housebreaking or unlawful occupancy.
  2. The unlawful or unauthorized occupant has the right to contest the matter by filing a verified complaint for reentry with the court within 21 calendar days after the date you retook possession and/or changed the locks. The squatters must serve the complaint at the address you give to the court when you file the written notice (see below).
  3. Reentry of the property without a court order is a criminal offense, punishable by up to 4 years in prison.
  4. Except as otherwise provided in NRS 40.412(2)(d)(4), the owner of the dwelling shall provide safe storage of any personal property which remains on the property. The owner may dispose of any personal property which remains on the property after 21 calendar days from the date indicated in paragraph (c) unless within that time the owner receives an affidavit or notice of hearing pursuant to NRS 40.414. The unlawful or unauthorized occupant may recover his or her personal property by filing an affidavit with the court pursuant to NRS 40.414 within 21 calendar days after the date indicated in paragraph (c). The owner is entitled to payment of the reasonable and actual costs of inventory, moving and storage before releasing the personal property to the occupant.

Step 4 – If you changed the locks on your property, you must file a copy of the notice you posted with your local county justice court the following business day, and the notice must be accompanied by a statement that includes an address for service of any documents upon you or your authorized representative.

If you feel that changing the locks is necessary, you may have to pay a small filing fee (~$2.50) to file a Statement of Possession with your local justice court. Fortunately, this Statement of Possession does not require a filing fee of hundreds of dollars, so the only cost to you as the owner is your time and a few dollars.

Step 5 – Storing your squatters’ property

You must provide safe storage of any personal property that the squatters left on your property. After 21 calendar days from the date you gave in the notice you posted on your property, however, you may dispose of any personal property which remains on the property. If the squatters have filed an affidavit or notice of hearing pursuant to NRS 40.414, however, DO NOT dispose of the personal property that your squatter(s) left behind, just yet.

In any case, you are entitled to payment of the reasonable and actual costs of inventory, moving and storage before releasing the personal property to the occupant. In some cases, you may be able to keep or sell the personal property to recoup your costs, but you should consult an attorney before doing so. See NRS 40.414(7)(b).

Step 6 – Check next month’s blog post, which will cover violent or threatening squatters

Please take note that next month’s blog post will cover what to do when your squatters are violent and/or threatening toward you and the police have not or will not arrest and remove your squatters. There is separate legal action you can take to obtain a court order. You may be entitled to damages to your house and personal property for three times the amount of damage the squatters caused. More on this next time, so please stay tuned!

 

In liberty,

Matthew B. Beckstead, Esq.*

*Licensed in Nevada

 

© All Rights Reserved. License granted to the general public to reproduce and distribute to other members of the general public for informational purposes, subject to condition that this publication not be altered in any way, including author name and contact information.

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