IN THE SUPREME COURT OF THE STATE OF NEVADA

CITY OF BOULDER CITY, ) Electronically Filed

Petitioner, ) Aug 20 2019 04:42 p.m.
Elizabeth A. Brown
vs. ) Clerk of Supreme Court
THE EIGHTH JUDICIAL DISTRICT )
COURT FOR THE STATE OF ) Supreme Court No: 79005
NEVADA, IN AND FOR THE )
COUNTY OF CLARK, AND THE ) District Case No: C-18-334314-A
HONORABLE RICHARD F. )
SCOTTI, DISTRICT JUDGE )
Respondents, )
and )
JOHN BRIDGFORD HUNT, )
Real Party in Interest. )
_______________________________
___
ANSWER TO PETITION FOR WRIT OF CERTIORARI OR MANDAMUS

Stephen P. Stubbs, Attorney at Law

Nevada Bar No. 10449
626 S. Third Street
Las Vegas, NV 89101
Telephone: (702) 759-3224
Facsimile: (702) 293-3289
Email: stephen@stephenpstubbs.com
Attorney for Real Party in Interest John Bridgford Hunt

Docket 79005 Document 2019-34938

 1 TABLE OF CONTENTS

2
I. FACTUAL AND PROCEDURAL BACKGROUND…………………..1
3
A. THE PRESS RELEASE…………………………………………………1
4
B. THE CROSSWALK ENFORCEMENT EVENT……………………….1
5
C. AFTER RECEIVING A CITATION THAT HE THOUGHT WAS
6 UNFAIR, MR. HUNT PROTESTED THE CROSS-WALK
ENFORCEMENT EVENT BY WALKING ACROSS THE STREET IN
7 THE CROSS-WALK IN A WAY THAT PUT DRIVERS ON PROPER
NOTICE………………………………………………………………….2
8
D. THE CITY ATTORNEY RECEIVED ALL OF THE EVIDENCE, FILED
9 CHARGES, AND THEN DISMISSED THE CASE……………………3

10 E. CITY ATTORNEY OLSEN WROTE NOTES ON THE CRIMINAL

DISCOVERY THAT MR. HUNT WAS “EXERCISING HIS
11 CONSTITUTIONAL RIGHTS” BEFORE THE 2016 CRIMINAL
COMPLAINT WAS DISMISSED………………………………………5
12
F. MR. HUNT FILED A CIVIL RIGHTS LAWSUIT ALMOST A YEAR
13 LATER…………………………………………………………………...5
14 G. ON JUNE 5, 2017, AS A DIRECT REACTION TO MR. HUNT FILING
A CIVIL RIGHTS LAWSUIT, CITY ATTORNEY OLSEN BOTH
15
“RESURRECTED” THE 2016 CRIMINAL COMPLAINT, AND
“INCREASED THE SEVERITY BY ADDING TWO ADDITIONAL
16
MISDEMEANOR CHARGES…………………………………………..6
17
H. LDS STAKE PRESIDENT/CITY ATTORNEY STEVE MORRIS
18
MAKES APPEARANCES IN THE CASE TO INFLUENCE JUDGE
MILLER, WHOM LDS STAKE PRESIDENT MORRIS HAS
19 RELIGIOUS AUTHORITY OVER……………………………….……..6

20 I. JUDGE MILLER ISSUES UNCONSTITUTIONAL GAG ORDER AND

THEN MAKES AN UNETHICAL AND THREATENING PHONE
21
i
22
 1 CALL TO ATTORNEY STUBBS, ORDERING ATTORNEY STUBBS
TO MAKE MR. HUNT’S FATHER STOP POSTING NEGATIVE
2 THINGS ABOUT HIM ON FACEBOOK……………………………….8

3 J. PAULINE HORNYAK SERVED AS BOTH CITY ATTORNEY STEVE

MORRIS’S ONLY PARALEGAL AND JUDGE MILLER’S CLERK AT
4 THE SAME TIME FOR MORE THAN A YEAR DURING THE
CASE……………………………………………………………………..9
5
K. AT TRIAL, JUDGE PRO-TEM MARGARET WHITAKER ADMITS TO
6 BEING “OVERWHELMED” AND ULTIMATELY CONVICTED MR.
HUNT. MR. HUNT APPEALED A NEW……………………………..10
7
L. MOTION TO DISMISS FOR VINDICTIVE PROSECUTION AND ON
8 FIRST AMENDMENT GROUNDS………………………...………….12

9 II. LEGAL ARGUMENT……………………………………………………..13

10 A. THE DISTRICT COURT HAD FULL AUTHORITY TO GRANT MR.

HUNT’S MOTION TO DISMISS FOR VINDICTIVE PROSECUTION
11 AND ON FIRST AMENDMENT GROUNDS IN A PRETRIAL
PROCEEDING…………………………………………………………13
12
1. The District Court did not “construe facts in favor of Hunt as the
13 moving party”, but instead properly applied the constitutional
law in a criminal case while the City of Boulder City argued an
14
irrelevant civil cause of action and submitted false information
to the Court…………………………………………………....14
15

16
2. It is important public policy for the District Court, as the final
appellate court for inferior courts that are not courts of record, to
17 have authority to decide every facet of the case, and not be
limited to only conducting a new trial…………………………18
18
B. THE DISTRICT COURT HAD FULL AUTHORITY TO MAKE A
19 PRETRIAL DETERMINATION OF VINDICTIVE PROSECUTION...19

20 C. THE DISTRICT COURT HAD COMPLETE AUTHORITY TO MAKE

A PRETRIAL DETERMINATION OF HUNT’S FIRST AMENDMENT
21
ii
22
 1 RIGHTS IN THE CONTEXT OF THE OBSTRUCTION CHARGE….22

2 1. Sergeant Glenn, City Attorney Dave Olsen, NHP Sgt. Hubbs,

and Federal District Court Judge Mahan all agree that Mr. Hunt
3 was protesting the cross-walk enforcement event by walking
back and forth in the cross-walk………………………………22
4
2. The City of Boulder City cannot charge Mr. Hunt for
5 protesting……………………………………………………..23

6 3. By statute (NRS 197.190), the obstruction charge cannot apply

because the First Amendment applies………………………..25
7
D. JUDGE SCOTTI DID NOT MAKE ANY DETERMINATION
8 CONTRARY TO THE FEDERAL CIVIL RIGHTS CASE AND IS NOT
LIMITED BY THE PRICIPLES OF ESTOPPEL AND ISSUE
9 PRECLUSION……………………………………………………….…26

10 1. The federal civil rights case puts the actions of Sergeant Glenn
at issue while the motion to dismiss in the criminal case evaluates
11 the prosecutors’ actions……………………………………….27
12 2. Judge Scotti properly relied on Federal District Court Judge
Mahan’s factual determination that Mr. Hunt was protesting, and
13 Sergeant Glenn knew Mr. Hunt was protesting……………….28
14
III. CONCLUSION……………………………………………...……………...29
15

16

17

18

19

20

21
iii
22
 1 TABLE OF AUTHORITIES
CASES
2
Clark v. Cmty. for Creative Non–Violence,
3 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)….…………………….…24

4 Gentile v. State Bar of Nevada,

501 U.S. 1030, 1035 (1991)…………………………………………...…………18
5
Marbury v Madison,
6 1 Cranch 137, 2 L.Ed. 60 (1803)…………………………………………………19

7 Texas v. Johnson,
491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)………………………….23
8
U.S. v. Goodwin,
9 475 U.S. 368 (1982)………………………………….………………………..17,20
10 Nunez v. Davis,
169 F.3d 1222, 1226 (9th Cir.1999)………………………………………………24
11
U.S. v. DeMarco,
12
550 F.2d 1224 (9th Cir., 1977)………………………………………………….…20
13
U.S. v. Jenkins,
th
14 504 F.3d 694 (9 Cir., 2008)…………………………………………….....17,20,21

15 United States v. Swisher,

811 F.3d 299 (9th Cir., 2016),……………………………………………………..23
16
Hudson v. Eighth Judicial District Court, In and For Clark County,
17 422 P.2d 688, 83 Nev. 62 (Nev., 1967)………………………..……….................14

18

19

20

21
iv
22
 1 CONSTITUTIONAL PROVISIONS
United States Constitution, Amend. I……………………………………………..23
2
United States Constitution, Amend. XIV……………………………….…….…..23
3
Nev. Const., Article 6, Section 1…………………………………………….……13
4 Nev. Const., Article 6, Section 6………………………………………………….14

5
STATUTES
6
Nev. Rev. Stat. §174.075…………………………………………………………14
7
Nev. Rev. Stat. §174.085(5)(b) and (6)…………………………………………..19
8 Nev. Rev. Stat. §174.095…………………………………………………………14
9 Nev. Rev. Stat §197.190………………………………………………………….25
Nev. Rev. Stat. §199.280………………………………………………….…….....3
10
Nev. Rev. Stat, §484B.283………………………………………………………....3
11

12

13

14

15

16

17

18

19

20

21
v
22
 1 I. FACTUAL AND PROCEDURAL BACKGROUND
2
3 A. THE PRESS RELEASE
4
5 On June 4, 2016, the Boulder City Police Department (hereafter,
6 “BCPD”) sent out a Press Release entitled “Police Urge Pedestrians and
7 Motorists to Obey Rules of the Road”, which specifically instructed the
8 public that “Nevada state law requires pedestrians to use…crosswalks…”.
9 1 PA 30. This press release literally instructed the public to use crosswalks
10 during the upcoming June 8, 2016 cross-walk enforcement activity, which
11 is the exact manner of protest that Mr. Hunt engaged in, and the sole
12 reason for the City’s “Obstruction” charge that the City would later file-
13 walking in the cross-walk during the event. Id at Paragraph 1: Lines 7-8;
14 1 PA 38 at Count 4, Line 5.
15
16 B. THE CROSSWALK ENFORCEMENT EVENT
17
18 On June 8, 2016, the Boulder City Police Department (hereafter,
19 “BCPD”) was carrying out a crosswalk enforcement activity. 6 PA
20 1430:25. A police officer disguised as a pedestrian would cross Nevada
21 Highway 93 at a crosswalk located approximately at 1208 Nevada
22 Highway 93. 6 PA 1430:26-27. When a driver would fail to properly yield,
23 the disguised officer would signal to another officer in uniform to
24 approach the scene and issue a citation. 6 PA 1430:27-1431:1. The
25 crosswalk was not blocked, nor were there any kind of pedestrian
26
27
1
28
 1 restrictions posted. In fact, the opposite was true, as the BCPD Press
2 Release told pedestrians to use the crosswalks. 1 PA 30.
3
4 C. AFTER RECEIVING A CITATION THAT HE THOUGHT
WAS UNFAIR, MR. HUNT PROTESTED THE CROSS-
5 WALK ENFORCEMENT EVENT BY WALKING
6 ACROSS THE STREET IN THE CROSS-WALK IN A
WAY THAT PUT DRIVERS ON PROPER NOTICE
7
8 On June 8, 2016, at approximately 7:00am, Mr. Hunt received a
9 citation at the crosswalk enforcement event when he allegedly failed to
10 yield. 7 PA 1516:1-2. About 40 minutes later, Mr. Hunt returned to the
11 crosswalk to protest the purported unfairness of the enforcement
12 activity. Mr. Hunt’s protest entirely consisted of going back and forth
13 in the crosswalk. 7 PA 1516:2-4. Mr. Hunt challenged the traffic citation
14 at every stage of the criminal proceedings.1 PA 006-024 (Count 1). Mr.
15 Hunt did not challenge the traffic citation in the civil proceedings.
16 Generally, vehicles were able to yield to Mr. Hunt. However, on
17 Mr. Hunt’s first attempt to cross the highway, he abruptly stepped onto the
18 road, causing a driver of a gray Camaro to aggressively press his brakes-
19 though at no point did the car’s tires skid or screech. 6 PA 1431:4-7.
20 Officer Glenn apprehended Mr. Hunt after he crossed the highway for the
21 third time. 6 PA 1431:8. Officers brought Mr. Hunt to the ground. 6 PA
22 1431:13. Officer Glenn sat on Mr. Hunt’s back and, with the assistance of
23 other officers, placed Mr. Hunt in handcuffs. 6 PA 1431:14-15. At this
24 point, all of the officers released themselves from Mr. Hunt, with the
25 except of Officer Glenn, who remained on Mr. Hunt’s back and yelled,
26 “What is your major malfunction?!” – a reference to the 1987 film Full
27
2
28
 1 Metal Jacket, where a forceful Marine Corps drill sergeant screams this
2 phrase at his recruits. 6 PA 1431:15-18.
3 After two-and-a-half minutes, Officer Glenn learned about Mr.
4 Hunt’s traffic citation from earlier that morning and realized that
5 Mr. Hunt was trying to make a political statement. 6 PA 1431:22-23.
6 Officer Glenn’s report contains some “inaccuracies and omissions”, such
7 as stating that Mr. Hunt’s protest caused a car to “skid to a stop” and
8 failing to report that an officer placed Mr. Hunt in a headlock. 6 PA
9 1436:6-8. Mr. Hunt was arrested for allegedly walking into the crosswalk
10 into the path of a vehicle in a manner that it was impossible for the
11 vehicle to yield (NRS 484B.283(1)(b), and Resisting a Public Officer
12 (NRS 199.280). 1 PA 041.
13
D. THE CITY ATTORNEY RECEIVED ALL OF THE
14 EVIDENCE, FILED CHARGES, AND THEN DISMISSED
15 THE CASE.
16
On June 10, 2016, the Nevada Highway Patrol (“NHP”) exported
17
and sent the dashcam footage from NHP Trooper Morris’s car (NHP
18
Certified Copy #8846) to the City of Boulder City. 7 PA 1477. As of June
19
10, 2016, the City of Boulder City was sent all of the video evidence that
20
they claim to have had in their possession prior to filing the June 5, 2017
21
charges. Boulder City had all the police video evidence for approximately
22
360 days prior to filing the June 5, 2017 charges. On June 11, 2016, NHP
23
Troop Morris signed and submitted his witness statement to the City of
24
Boulder City, approximately 359 days prior to filing the June 5, 2017
25
charges. 3 PA 729. On June 13, 2016, Trooper Higgins signed and
26
submitted his witness statement to the City of Boulder City. 3 PA 730. As
27
3
28
 1 of June 13, 2016, the City of Boulder City had been sent all of the witness
2 statements that they received prior to filing the June 5, 2017 charges. 1
3 Boulder City had all of the police witness statement evidence for
4 approximately 358 days prior to filing the June 5, 2017 charges.
5 On June 18, 2016, the city filed its initial criminal charges against
6 Mr. Hunt. 1 PA 32-33. However, On June 22, 2016, the City, through their
7 City Attorney, Dave Olsen, dismissed all charges against Mr. Hunt
8 without prejudice. 7 PA 1622:17-20. On June 21, 2016, Dave Olsen signed
9 an affidavit, and on June 22, 2016 filed such affidavit with the Boulder
10 City Municipal Court, admitting that he was aware of “evidence to be
11 made available to my office from the Nevada Highway Patrol that [Dave
12 Olsen understands] may be important to the prosecution of this case”. 2 3

13
14
15 1 We do not know if the City Attorney’s office received these witness
statement prior to their filing the June 13, 2016 criminal complaint, but
16 we know that all of the NHP witness statement were sent to the City of
17 Boulder City by June 13, 2016.
18 2 This NHP Evidence consisted of: (1) the NHP Trooper Morris dashcam
19 video (exported and sent to Boulder City on June 10, 2016), (2) the written
statements of NHP Trooper Higgins (written and sent to Boulder City on
20
June 11, 2016), and (3) the written statement of NHP Trooper Morris
21 (written and sent to Boulder City on June 13, 2016). It is entirely possible
22
that this evidence was sent to Boulder City, and that Dave Olsen had not
yet received the evidence. However, the NHP Evidence was clearly in the
23 possession and control of the City of Boulder City prior to the dismissal
24 of case #16CR108 on June 22, 2016.
25 3 Dave Olsen testified at trial on May 23, 2018 that he had no
26 recollection of when he actually received the NHP evidence in his office.
27
4
28
 1 6 PA 1444:16-18. Dave Olsen was 100% aware of the existence of the
2 NHP evidence on June 21, 2016.
3 Prior to dismissing the June 13, 2016 criminal complaint against
4 Mr. Hunt on June 22, 2016, the City of Boulder City had possession of all
5 of the evidence that they later had on June 5, 2017, when they
6 “resurrected” the charges with a new complaint. 7 PA 1630:8-9.
7
E. CITY ATTORNEY OLSEN WROTE NOTES ON THE
8 CRIMINAL DISCOVERY THAT MR. HUNT WAS
9 “EXERCISING HIS CONSTITUTIONAL RIGHTS”
BEFORE THE 2016 CRIMINAL COMPLAINT WAS
10 DISMISSED.
11
12 Prior to dismissing the June 13, 2016 criminal complaint, City
13 Attorney Olsen wrote handwritten notes in the criminal discovery (later
14 provided to the defense) stating, “The reason he decided to exercise his
15 constitutional rights”. 1 PA 42; 7 PA 1628:1-1628:4. Then, after writing
16 these notes, City Attorney Olsen dismissed both the 2016 criminal
17 complaint against Mr. Hunt, and also the traffic ticket that Mr. Hunt
18 received prior to his protest, and did not review the case again. Id.
19
F. MR. HUNT FILED A CIVIL RIGHTS LAWSUIT
20 ALMOST A YEAR LATER.
21
On May 30, 2017, John Hunt filed a federal civil rights lawsuit
22
against the City of Boulder City in the Nevada District Court, under Mr.
23
Hunt’s statutory right provided in 42 USC § 1983, for “depriving…John
24
Hunt of rights secured under the Constitution and laws of Nevada and the
25
United States and retaliating against Hunt for his exercise of
26
27
5
28
 1 constitutionally protected speech.” RPIIA 001:27-002:2. On May 31,
2 2017, the City of Boulder City was served with John Hunt’s federal civil
3 rights lawsuit. 7 PA 1625:27-1626:9.
4
G. ON JUNE 5, 2017, AS A DIRECT REACTION TO MR.
5 HUNT FILING A CIVIL RIGHTS LAWSUIT, CITY
6 ATTORNEY OLSEN BOTH “RESURRECTED” THE
2016 CRIMINAL COMPLAINT, AND “INCREASED THE
7 SEVERITY” BY ADDING TWO ADDITIONAL
8 MISDEMEANOR CHARGES.
9
On June 5, 2017, the City of Boulder City “resurrected” the 2016
10
previously dismissed criminal complaint against John Hunt by filing a new
11
criminal complaint (BCMC Case #17CR68). 7 PA 1630:8-9. City
12
Attorney Olsen admitted in his trial testimony that he “increased the
13
severity” of the charges in his June 5, 2017 criminal complaint by adding
14
two additional misdemeanor charges. 7 PA 1630:28-1631:2. City
15
Attorney Olsen also admitted in his trial testimony that the 2017 criminal
16
charges were a direct result of his receiving service of the civil right
17
lawsuit because it “reminded” him to file criminal charges. 7 PA 1626 23-
18
25.
19
20 H. LDS STAKE PRESIDENT/CITY ATTORNEY STEVE
21 MORRIS MAKES APPEARANCES IN THE CASE TO
INFLUENCE JUDGE MILLER, WHOM LDS STAKE
22 PRESIDENT MORRIS HAS DIRECT RELIGIOUS
23 AUTHORITY OVER.
24
On November 11, 2017, Mr. Hunt filed a Motion, presenting an
25
expert report showing that parts of the audio in Sgt. Glenn’s dashcam
26
footage were doctored. 2 PA 329-371; 2 PA 375-380; 2 PA 392-396; 2 PA
27
6
28
 1 427-495. At the December 20, 2017 hearing, City Attorney Steve Morris
2 made an appearance.4 The City did not present any expert witnesses to
3 refute the defense expert, and instead argued that it was morally wrong to
4 grant the motion. City Attorney Steve Morris even argued that he was
5 offended by the motion. 1 PA 18-21.
6 City Attorney Steve Morris is also the Stake President for the
7 Church of Jesus Christ of Latter-Day Saints (hereafter, “LDS Church”) for
8 all of Boulder City. Judge Miller is an active, believing member of the
9 LDS Church in Boulder City. An LDS Stake President is the lay leader of
10 a stake similar to a Catholic diocese. 5 An LDS Stake President is the
11 spiritual judge over the people in his geographical stake. 6 Elder Dallin H.
12 Oaks, a member of the LDS Church's Quorum of the Twelve Apostles,
13 famously stated at an LDS Student Associate fireside in the Salt Lake
14 Tabernacle on May 4, 1986 that, "It is wrong to criticize leaders of the
15 Church, even if the criticism is true." It is the culture and common belief
16 within the LDS church membership to view a stake president as a man
17 with direct divine revelation for the members of his geographical stake. It
18 is the culture and common belief within the LDS church membership that
19 criticizing your stake president or going against him in any way is a
20 rebellion against God.
21
22 4 Upon information and belief, City Attorney Steve Morris had not
made an appearance in any other criminal case as a prosecutor in the
23 Boulder City Municipal Court before that day, nor has he made an
24 appearance in any case since.
5 https://www.mormonnewsroom.org/article/stake-president
25
6 https://www.lds.org/ensign/2009/12/the-spiritual-gifts-given-the-
26 stake­ president?lang=eng
27
7
28
 1 Even though City Attorney Steve Morris was Judge Miller’s LDS
2 Stake President and Steve Morris has substantial direct religious and moral
3 authority over Judge Miller, and made a moral argument in front of Judge
4 Miller, neither Judge Miller nor Steve Morris recused themselves or made
5 public disclosures.
6 After City Attorney/Stake President Steve Morris made his moral
7 argument, without refuting the defense’s expert witness in any way, Judge
8 Miller denied the Motion to Dismiss for Prosecutorial Misconduct,
9 ignoring all of the forensic evidence and expert testimony. 3 PA 504-509.
10
I. JUDGE MILLER ISSUES UNCONSTITUTIONAL GAG
11 ORDER AND THEN MAKES AN UNETHICAL AND
12 THREATENING PHONE CALL TO ATTORNEY
STUBBS, ORDERING ATTORNEY STUBBS TO MAKE
13 MR. HUNT’S FATHER STOP POSTING NEGATIVE
14 THINGS ABOUT HIM ON FACEBOOK.
15
On February 22, 2018, as a direct result of Attorney Stubbs’s
16
Facebook post, Judge Miller issued a broad gag order from the bench. Mr.
17
Hunt hereby adopts and incorporated his August 20, 2019 Motion to
18
Disqualify Marquis Aurbach Coffing in this Answer. Judge Miller
19
addressed the content of Attorney Stubbs’s Facebook post and
20
passionately defended City Attorney/LDS Stake President Steve Morris.
21
Judge Miller declared Steve Morris to be ethical and further stated that
22
Steve Morris would never break the oath he took to protect the
23
Constitution. Later that day on February 22, 2018 at 4:26pm, Attorney
24
Stephen Stubbs was sitting with his wife in their bedroom at his personal
25
residence when Judge Miller called on his cell phone. Attorney Stubbs’s
26
wife heard Attorney Stubbs’s half of the telephone conversation. Attorney
27
8
28
 1 Stubbs’s cell phone record showing the existence and length of the phone
2 call. RPIIA 20. The call started with a Judge Miller stating that he was
3 going to add Ainsworth Hunt (John Hunt’s father) to the gag order. Judge
4 Miller had been reading Ainsworth Hunt’s criticisms against Judge
5 Miller’s gag order on Facebook and was really upset with Ainsworth Hunt.
6 An argument then ensued where Judge Miller inappropriately threatened
7 Attorney Stubbs that, if Attorney Stubbs did not exercise influence to stop
8 Ainsworth Hunt’s speech, Attorney Stubbs would be held responsible for
9 whatever Ainsworth Hunt said. Judge Miller also made the extremely
10 inappropriate statement/question of, “Does he really think that criticizing
11 me will help his son’s case?”, clearly implying that, if Ainsworth Hunt did
12 not stop making political statements against Judge Miller, it would affect
13 Judge Miller’s judgment in his son’s case.
14 In Judge Johnson’s order reversing Judge Miller’s unconstitutional
15 gag order, Judge Johnson noted: “From an ecclesiastic standpoint, MR.
16 MORRIS has “very significant authority”…and an LDS ‘faithful member’
17 would feel obligated to comply with the Stake President’s wishes or
18 directives. 3 PA 702 at Footnote 7. ‘More importantly, it is the culture and
19 common belief within the LDS Church membership that criticizing your
20 stake president or going against him in any way is a rebellion against
21 God.” Id.
22
J. PAULINE HORNYAK SERVED AS BOTH CITY
23 ATTORNEY STEVE MORRIS’S ONLY PARALEGAL
24 AND JUDGE MILLER’S CLERK AT THE SAME TIME
FOR MORE THAN A YEAR DURING THE CASE.
25
26 Additionally, for more than a year during the case, the City Attorney
27
9
28
 1 Steve Morris’s only paralegal at the time (Pauline Hornyak) doubled as a
2 clerk of the Boulder City Municipal Court.
3
K. AT TRIAL, JUDGE PRO-TEM MARGARET
4 WHITAKER ADMITS TO BEING “OVERWHELMED”
5 AND ULTIMATELY CONVICTED MR. HUNT. MR.
HUNT APPEALED A NEW.
6
7 During trial (May 23, 2018 and May 24, 2018), Judge Pro-Tem
8 Margaret Whitaker admitted to being “overwhelmed” by the trial, not
9 once, but twice. 7 PA 1636:19; 7 PA 1642:28. Judge Whitaker also
10 proclaimed: “I’m not sure what I’m doing one day to the next.” 7 PA
11 1643:8. Judge Whitaker then complained that she had “too much to do
12 before making that decision” (meaning a decision on Mr. Hunt’s
13 vindictive prosecution motion). 7 PA 1671:6.
14 In a trial where the central issue was whether, while Mr. Hunt was
15 protesting the cross-walk sting, Mr. Hunt stepped out into the cross-walk
16 in a manner in which it is “IMPOSSIBLE” for a vehicle to yield, only
17 one witness testified that Mr. Hunt stepped into the crosswalk in a manner
18 in which it was impossible to yield- Sgt. John Glenn (who is also a
19 defendant in the civil lawsuit). However, the video evidence showed that
20 the cars actually yielded, NHP Trooper Marcia Pitchford testified that Mr.
21 Hunt was “legally in the crosswalk” and was not in danger (7 PA 1616:11-
22 12; 7 PA 1617:16-18), NHP Sgt. Raymond Hubbs testified that it was not
23 impossible for the cars to stop for Mr. Hunt (7 PA 1613:15-18), Mr. Hunt
24 was not even in the pathway of the vehicle and there was no probable
25 cause to arrest Mr. Hunt under NRS 494B.283 (7 PA 1614:2-10),
26 independent lay witness Bill Tobler testified that Mr. Hunt was never in
27
10
28
 1 danger, no car almost hit Mr. Hunt and there was no squealing of tires nor
2 hard braking (7 PA 1619:17-24), and Expert John Baker testified that John
3 Hunt was not in danger and it was not impossible for the drivers to yield
4 because the video proved that the cars actually yielded (7 PA 1655:14-23).
5 Even Judge Whitaker proclaimed during trial that Mr. Hunt was “walking
6 safely in the crosswalk” (7 PA 1567:2-3).
7 Additionally, NHP Sgt. Raymond Hubbs testified at trial that on the
8 scene, Sgt. Glenn told Sgt. Hubbs that Mr. Hunt was “in the roadway
9 protesting the assignment”.7 PA 1620:15-16.
10 However, between trial days, while Sgt. Glenn was still under oath
11 and a witness on the stand, Sgt. Glenn was seen behind the court counter
12 talking with the court staff and clerks, showing at a minimum the
13 appearance of impropriety. 7 PA 1620:24-27. When it was brought to her
14 attention, Judge Whitaker did not question Sgt. Glenn about it or even
15 inquire further, but simply declared that “in my own experience, they do
16 not discuss the case. They know better. If caught, they would be in a lot
17 of trouble”. 7 PA 1621 1621:2-5. This shows Judge Whitaker’s bias in
18 favor of Sgt. Glenn, as she automatically assumed that Sgt. Glenn was not
19 doing anything wrong, would not even inquire about inappropriate
20 behavior or ask anyone any questions about what transpired, and
21 expressed that Sgt. Glenn wouldn’t do anything wrong because he “could
22 get in a lot of trouble”.
23 At the end of trial, Judge Whitaker order briefing on the vindictive
24 prosecution issue and set a hearing. However, on the day of the hearing
25 (August 14, 2018), Judge Whitaker abruptly cancelled the hearing, did not
26 allow counsel to speak from either side, and declared Mr. Hunt Guilty on
27
11
28
 1 all 4 remaining charges. Mr. Hunt was sentenced to 140 hours of
2 community service. 7 1 PA 006. Judge Whitaker disregarded all of
3 witnesses and evidence- even video evidence showing that the cars yielded
4 to Mr. Hunt and her own proclamation that Mr. Hunt was “walking safely
5 in the crosswalk”, and gave complete deference to testimony of Sgt,
6 Glenn- the same Sgt. Glenn that was behind the court counter while he
7 was still under oath talking with court staff. On August 14, 2018, Mr.
8 Hunt filed his Notice of Appeal. 1 PA 006.
9
L. MOTION TO DISMISS FOR VINDICTIVE
10 PROSECUTION AND ON FIRST AMENDMENT
11 GROUNDS.
12
1) On September 18, 2019, Mr. Hunt filed a Motion to Dismiss
13
for Vindictive Prosecution and on First Amendment Grounds. 6 PA 1409-
14
1478 This was the first opportunity for Mr. Hunt to bring up such issues
15
in a neutral and unbiased court.
16
2) On October 10, 2018, the City filed their Opposition to
17
Appellant’s Motion to Dismiss for Vindictive Prosecution and on First
18
Amendment Grounds. 7 PA 1501-1523.
19
3) On October 17, 2018, Mr. Hunt filed his Reply in Support of
20
Motion to Dismiss for Vindictive Prosecution and on First Amendment
21
Grounds. 7 PA 1528-1673.
22
23
24
7 John Hunt believes that the hearing was abruptly cancelled because the
25 courtroom was packed, including with multiple media outlets. Judge
26 Whitaker refused to allow any of the media outlets to videotape the
hearing.
27
12
28
 1 4) On October 29, 2018, the Honorable Eighth Judicial District
2 Court Judge Richard Scotti issued a minute order, granting Mr. Hunt’s
3 motion to dismiss for vindictive prosecution and on first amendment
4 grounds. 7 PA 1677-1678.
5 5) On November 7, 2018, the City of Boulder City attempted to
6 appeal Judge Scotti’s Minute Order by filing a motion to disqualify Judge
7 Scotti and to strike Judge Scotti’s minute order. 7 PA 1682.
8 6) On December 14, 2018, the Honorable Eighth Judicial
9 District Court Judge Linda Marie Bell shut down the City’s attempt to
10 appeal the substance of Judge Scotti’s decision through a Motion to
11 Disqualify, concluding: “The City has not provided the evidence of bias
12 necessary to recuse Judge Scotti. The City’s allegations stem from Judge
13 Scotti’s substantive rulings. Further, this Court does not have jurisdiction
14 to review and strike another judge’s ruling. Therefore, the City’s request
15 to remove Judge Scotti and the Minute Order is denied.” RPIIA 189:18-
16 21.
17
18 II. LEGAL ARGUMENT
19
A. THE DISTRICT COURT HAD FULL AUTHORITY
20 TO GRANT MR. HUNT’S MOTION TO DISMISS
21 FOR VINDICTIVE PROSECUTION AND ON FIRST
AMENDMENT GROUNDS IN A PRETRIAL
22 PROCEEDING.
23
24 The Nevada Constitution grants broad powers to District Courts and
25 vests full power in the District Court to handle matters in the court system.
26 Nevada Constitution, Article 6, Section 1. The District Court is also the
27
13
28
 1 final appellate court for inferior tribunals, such as the Boulder City
2 Municipal Court. Nevada Constitution, Article 6, Section 6 (1). When an
3 appeal is duly perfected and transferred to the district court for a trial
4 anew, the proceedings shall be the same as in criminal actions originally
5 commenced in the district court. Hudson v. Eighth Judicial District Court,
6 In and For Clark County, 422 P.2d 688, 689, 83 Nev. 62, 63 (Nev., 1967).
7 NRS 174.075 specifically authorizes motions to dismiss generally and
8 NRS 174.095 specifically states that “any defense or objection which is
9 capable of determination without the trial of the general issue may be
10 raised before trial by motion.” Therefore, on trials anew from inferior
11 courts, it is proper to file pretrial motions to dismiss, especially if it is on
12 an issue capable of being determined without trial.
13 In this case, Mr. Hunt properly appealed his conviction in the
14 Boulder City Municipal Court, which is not a court of record, to the Eighth
15 Judicial District Court for a trial anew. Mr. Hunt then filed a Motion to
16 Dismiss for Vindictive Prosecution and on First Amendment Grounds, full
17 briefing was filed, and Judge Scotti granted Mr. Hunt’s motion. Judge
18 Scotti decided that Mr. Hunt was vindictively prosecuted generally, and
19 that the obstruction charge was a violation of Mr. Hunt’s first amendment
20 rights. This was all just and proper under the law, and Judge Scotti had
21 full authority to decide Mr. Hunt’s pretrial motion to dismiss. Judge Scotti
22 agreed that Mr. Hunt’s due process and first amendment rights were
23 violated and properly exercised his authority by dismissing the case.
24
1. The District Court did not “construe facts in favor of Hunt
25 as the moving party”, but instead properly applied the
26 constitutional law in a criminal case while the City of
Boulder City argued an irrelevant civil cause of action and
27
14
28
 1 submitted false information to the Court.

2
The City of Boulder City argues that Judge Scotti construed facts in
3
favor of Mr. Hunt as the moving party, but this claim is simply not true.
4
Judge Scotti evaluated the facts and law that were presented to him, while
5
the City of Boulder City argued irrelevant civil causes of action (trying to
6
tip the scales of justice in the civil action) and submitted false information
7
to the court. Frankly, the City of Boulder City’s Opposition was atrocious
8
and completely missed the mark.
9
The City knowingly attempted to deceive the District Court. Not
10
knowing that there was a short-hand transcriptionist in the trial audience
11
making a transcript, the City decided to submit false “facts” and sworn
12
affidavits to the Court that contradicted City Attorney Dave Olsen’s trial
13
testimony. At trial, City Attorney Dave Olsen testified that he “[did] not
14
recall” when he reviewed video evidence in the case. 7 PA 1622:27-28.
15
City Attorney Olsen also testified that he “[Did] not know”, but “[Did] not
16
dispute” receiving the civil complaint, and that the civil complaint
17
“reminded” City Attorney Olsen to file the June 2017 criminal complaint.
18
7 PA 1625:27-91:25. City Attorney Olsen further testified that, prior to
19
dismissing the June 13, 2016 criminal complaint, City Attorney Olsen
20
wrote handwritten notes in the criminal discovery (later provided to the
21
defense) stating, “The reason he decided to exercise his constitutional
22
rights”. 1 PA 42; 7 PA 1628:1-1628:4. Then, after writing these notes,
23
City Attorney Olsen dismissed both the 2016 criminal complaint against
24
Mr. Hunt, and also the traffic ticket that Mr. Hunt received prior to his
25
protest, and did not review the case again. Id. (emphasis added)
26
However, after the trial, City Attorney Olsen submitted an affidavit
27
15
28
 1 that, if true, would MIRACULOUSLY help them defend a vindictive
2 prosecution claim. 7 PA 1509-1511. In this new affidavit, City Attorney
3 Olsen now claimed that he had reviewed the file prior to Mr. Hunt filing
4 the federal civil rights lawsuit (contradicting his trial testimony) and even
5 prepared the new criminal complaint, but delayed filing it because he was
6 “swamped, without a paralegal and preparing for retirement”, but “the new
7 complaint sat on his desk for some time”. 7 PA 1510:7-12. Not only does
8 this new affidavit completely contradict City Attorney Olsen’s sworn trial
9 testimony, but it is refuted by the fact that his paralegal, Tara Thackery
10 was paid her salary through most of May 2017. 6 PA 1467-1468. Thus,
11 the City knowingly submitted a false and fraudulent sworn affidavit in a
12 vain attempt to manufacture a false and fraudulent defense against
13 vindictive prosecution. City Attorney Steve Morris, even though he
14 witnessed City Attorney Olsen’s testimony at trial, both asserted these
15 false and fraudulent facts in his pleading (7 PA 1502:9-1503:4) and further
16 falsely stated in his pleading that City Attorney Olsen testified consistently
17 at trial. 7 PA 1504:9-11.
18 It is impossible to look past these blatant violations of candor to the
19 court, but if you do, the City’s Opposition itself was embarrassingly
20 atrocious and had no legal substance whatsoever. Instead of addressing
21 the issues that were presented by Mr. Hunt’s Motion to Dismiss, the City
22 of Boulder City:
23 a. Concentrated on whether they had reviewed all of the
24 evidence, instead of the standard of whether they were in
25 possession of all of the evidence, claiming that evidence
26 was newly discovered even though it was in the City’s
27
16
28
 1 possession from the beginning; 7 PA 1503:22-26, 1504:9-
2 12, 1505:8-10.
3 b. Addressed the irrelevant factor of whether they made a
4 “pre-trial threat”; 7 PA 1504:2-3.
5 c. Ignored the controlling law (Jenkins) in favor of much
6 older cases where the facts did not fit;
7 d. Addressed the irrelevant civil cause of action of first
8 amendment retaliation that was at issue in the companion
9 federal civil rights case, but not in the criminal case; 7 PA
10 1505:19-21.
11 e. Argued guilt/innocence instead of addressing the legal
12 issues presented in the Motion to Dismiss; 7 PA 1505:20-
13 26.
14 f. Addressed the actions of Sergeant Glenn instead of the
15 issues presented by the Motion to Dismiss that
16 concentrated solely on the acts of the prosecutor. 7 PA
17 1505:24-6:3, and 1506:5-6.
18 g. Addressed whether there was actual vindictiveness by the
19 prosecutors when all relevant case law clearly establishes
20 that “It does not matter that no evidence [is] present that
21 the prosecutor had acted in bad faith or with malice”. U.S.
22 v. Goodwin, 475 U.S. 368, 376 (1982). 7 PA 1506:4-5.
23 h. Generally reading the City’s Opposition, it’s as if the City
24 was trying to get a ruling that helped the civil case instead
25 of concentrating on the criminal case at hand.
26
27
17
28
 1 The City of Boulder City’s Opposition shows that they did not
2 understand any of the applicable law, and/or didn’t care to spend the time
3 necessary to draft an adequate response. Further, by violating their duty of
4 candor to the Court about paralegal Tara Thackery’s employment and City
5 Attorney Olsen’s trial testimony, their briefing became unbelievable and
6 only Mr. Hunt’s arguments were left standing. Judge Scotti properly
7 evaluated the facts and law presented to him, and the Eighth Judicial
8 District Court is the final appellate court of inferior courts. It is the City’s
9 own fault that they put forth such a poor effort in a filing that included
10 only 3 ½ pages of legal authorities and analysis.
11
12 2. It is important public policy for the District Court, as the
final appellate court for inferior courts that are not courts of
13 record, to have authority to decide every facet of the case,
14 and not be limited to only conducting a new trial.
15
The City of Boulder City wants to restrict the power and authority
16
of District Court judges on trials anew so that the District Court can only
17
conduct a trial and not entertain any pre-trial motions, nor decide any of
18
the important constitutional issues that are frequently present in criminal
19
proceedings. That is not a correct legal analysis. Furthermore, “Few
20
interests under the Constitution are more fundamental than the right to a
21
fair trial…” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1035 (1991).
22
The judicial system, and in particular our criminal courts, play a vital part
23
in a democratic state…” Id. “It would be difficult to single out any aspect
24
of government of higher concern and importance than the manner in which
25
criminal trials are conducted.” Id. There are important policy reasons for
26
District Courts to be able to decide pre-trial motions and make
27
18
28
 1 constitutional determinations, especially since inferior courts are not
2 courts of record when there is a trial anew.
3 In this case, during the Boulder City Municipal Court proceedings
4 were a farce. There was no chance at a fair trial in the Boulder City
5 Municipal Court because the powers that be would not allow it.
6 The City of Boulder City would much rather that no one ever knows
7 what happens in their courts, giving them absolute power with no legal
8 recourse if they abuse that power. The City of Boulder City argues that the
9 District Court should be limited on appeals and should not be able to
10 entertain questions of whether they violate citizen’s rights or commit
11 prosecutorial misconduct. “Nothing to see here. Move along and leave us
12 alone.” That is the City of Boulder City’s mantra. This cannot be the case
13 in a justice system that is supposed to be just. The police, prosecutors, and
14 judge should not be able to collude together and exercise absolute power
15 on anyone that enters the city boundaries- especially when that person is
16 exercising an important Constitutional right. Therefore, this Court should
17 consider the important public policy of protecting the integrity of the
18 judicial system.
19
B. THE DISTRICT COURT HAD FULL AUTHORITY TO
20 MAKE A PRETRIAL DETERMINATION OF
21 VINDICTIVE PROSECUTION.
22
While it is true that prosecutors have authority to dismiss and refile
23
charges under NRS 174.085(5)(b) and (6), prosecutors must do so in a way
24
that does not violate a defendant’s constitutional rights, as “the
25
constitution controls any legislative act repugnant to it”. Marbury v
26
Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). The City of Boulder City
27
19
28
 1 simply cannot re-file charges in retaliation for a defendant exercising a
2 statutory or constitutional right.
3 Vindictive prosecution is a species of prosecutorial misconduct and
4 is a “prophylactic” measure intended to prevent the chilling of a
5 defendant’s ability to exercise a statutory or constitutional right. U.S. v.
6 Jenkins, 504 F.3d 694, 700 (9th Cir., 2008); U.S. v. DeMarco, 550 F.2d
7 1224, 1227 (9th Cir., 1977). If the government is aware of crimes, has
8 sufficient evidence to prosecute those crimes, chooses not to prosecute
9 until after a defendant has exercised a statutory or constitutional right, and
10 the timing of the charges gives the appearance of vindictiveness, then the
11 charges must be dismissed, even when the government did not otherwise
12 do anything wrong. U.S. v. Jenkins, 504 F.3d 694, 699 (9th Cir., 2008).
13 Vindictive prosecution is a due process violation. U.S. v. Goodwin, 475
14 U.S. 368 (1982). “It does not matter that no evidence [is] present that the
15 prosecutor had acted in bad faith or with malice”. Id, at 376.
16 The City of Boulder City dismissed the original charges on June 22,
17 2016 and had plenty of time to refile the charges, but they did not. July,
18 August, September, October, November, December, January, February,
19 March, April, and May all passed while the City of Boulder City did
20 nothing. Then, immediately after Mr. Hunt filed a federal civil rights
21 lawsuit, the City of Boulder City filed the criminal charges in retaliation,
22 violating Mr. Hunt’s due process rights through vindictive prosecution.
23 City Attorney Dave Olsen even testified that he didn’t even look at the
24 case until after the federal civil rights lawsuit was filed. Actions like these
25 cause a chilling affect that would reasonably deter citizens from exercising
26 their statutory or constitutional rights. Judge Scotti exercised sound
27
20
28
 1 judgment to protect the constitutional rights of Mr. Hunt and prevent any
2 chilling effect that the City of Boulder City’s actions might have caused.
3 Likewise, Judge Scotti had authority, and properly exercised his
4 authority, to dismiss the obstruction charge as a violation of the first
5 amendment.
6
7 Andrews, Gallegos, and Kent do not apply here.
8
9 The City of Boulder City makes a preposterous argument that this
10 Court should apply the 40 year-old 6th Circuit case law in U.S. v Andrews,
11 612 F.2d 235, 238 (6th Circuit, 1979) to analyze this case because the 6th
12 circuit rejected the “appearance of vindictiveness” test in 1979. However,
13 Nevada is not in the 6th Circuit. Nevada is in the 9th Circuit and 9th Circuit
14 case law is binding authority in Nevada. U.S. v. Jenkins, 504 F.3d 694 (9th
15 Cir. 2007) is the most recent and controlling case law dealing with
16 vindictive prosecution, and the “appearance of vindictiveness” test is the
17 law of the land in the Nevada and the rest of the 9th Circuit. Additionally,
18 the City of Boulder City urges this Court to follow the older 1982 law that
19 was set out in U.S. v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir., 1982)
20 instead of the most recent and controlling 2007 case Jenkins. In what
21 world is it proper to ignore the most-recent binding authority in place of a
22 case that is 25 years older? Finally, the City of Boulder City cites U.S. v.
23 Kent, 649 F.3d 906 (9th Cir. 2011), but fails to tell this Court that the facts
24 in Kent showed that the prosecution uncovered additional evidence to
25 support the filing of additional charges, which factor is not present in the
26 instant case. Kent, like the Gallegos and Andrews above, is not applicable.
27
21
28
 1 Judge Scotti properly applied the applicable, controlling, binding
2 authority in the 9th Circuit under Jenkins.
3
4 C. THE DISTRICT COURT HAD COMPLETE
5 AUTHORITY TO MAKE A PRETRIAL
DETERMINATION OF HUNT’S FIRST AMENDMENT
6 RIGHTS IN THE CONTEXT OF THE OBSTRUCTION
7 CHARGE.
8
Judge Scotti only dismissed one of the misdemeanor charges on
9
first amendment ground, the obstruction charge, and that decision was
10
proper because the City of Boulder City charged Mr. Hunt with
11
obstruction solely because Mr. Hunt was using the cross-walk to protest
12
the enforcement event. It’s specifically in the criminal complaint. In
13
essence, the City of Boulder City charged Mr. Hunt for protesting, which
14
is a clear violation of the first amendment.
15
16 1. Sergeant Glenn, City Attorney Dave Olsen, NHP Sgt.
17
Hubbs, and Federal District Court Judge Mahan all agree
that Mr. Hunt was protesting the cross-walk enforcement
18 event by walking back and forth in the cross-walk.
19
20 In the companion civil rights lawsuit [2:17-CV-1519 JCM (NJK)],

21 in the District Court of Nevada, the Honorable Judge Mahan reviewed all

22 of the evidence in the case. Judge Mahan’s findings relevant to this motion

23 from Judge Mahan’s September 6, 2018 Order are as follows:

24 a. At approximately 7:00am, Mr. Hunt received a citation at

25 the crosswalk when he failed to yield. About 40 minutes

26 later, Mr. Hunt returned to the crosswalk to protest the

27
22
28
 1 purported unfairness of the enforcement activity. Mr.
2 Hunt’s protest entirely consisted of going back and
3 forth in the crosswalk. 7 PA 1516:2-4.
4 b. After two-and-a-half minutes, Officer Glenn learned
5 about Mr. Hunt’s traffic citation from earlier that
6 morning and realized that Mr. Hunt was trying to
7 make a political statement. 7 PA 1517:22-23.
8 On June 5, 2017, The City of Boulder City gave Mr. Hunt criminal
9 discovery for the June 5, 2017. Sometime between May 31, 2017 and June
10 5, 2017, Dave Olsen reviewed BCPD Sgt. John Glenn’s June 8, 2016
11 Declaration of Probable Cause, and wrote handwritten notes in the
12 criminal discover (later provided to the defense) stating, “The reason he
13 decided to exercise his constitutional rights’. 1 PA 42; 7 PA 1628:1-
14 1628:4), also admitting that Mr. Hunt was protesting by walking in the
15 cross-walk. Prior to refiling the charges against Mr. Hunt, City Attorney
16 Dave Olsen recognized that Mr. Hunt was protesting.
17
18 2. The City of Boulder City cannot charge Mr. Hunt for
19 protesting.
20
21 The best and most complete and applicable recital of the 1st
22 Amendment symbolic speech standard comes directly from the recent 9th
23 Circuit case, United States v. Swisher, 811 F.3d 299 (9th Cir., 2016), and
24 states as follows:
25
The First Amendment provides that "Congress shall make
26 no law ... abridging the freedom of speech." U.S. Const.
27
23
28
 1 Amend. I. While "[t]he First Amendment literally forbids
the abridgment only of ‘speech,’ " the Supreme Court has
2 "long recognized that its protection does not end at the
3 spoken or written word." Texas v. Johnson, 491 U.S. 397,
404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). A message
4 "delivered by conduct that is intended to be communicative
5 and that, in context, would reasonably be understood by the
viewer to be communicative," Clark v. Cmty. for Creative
6
Non–Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d
7 221 (1984), is symbolic speech that falls "within the scope of
8
the First and Fourteenth Amendments." Johnson, 491 U.S.
at 404, 109 S.Ct. 2533 ; see also Nunez v. Davis, 169 F.3d 1222,
9 1226 (9th Cir.1999) ("Non-verbal conduct implicates the
10 First Amendment when it is intended to convey a
‘particularized message’ and the likelihood is great that the
11 message would be so understood." (quoting Johnson, 491
12 U.S. at 404, 109 S.Ct. 2533)).
13
In this case, the Honorable Nevada District Court Judge Mahan has
14
already ruled that 1) Mr. Hunt was protesting by walking back and forth
15
in the crosswalk, and 2) Sgt. Glenn knew Mr. Hunt was protesting only 2
16
½ minutes after he arrested Mr. Hunt. 7 PA 1516:2-4; 7 PA 1517:22-23.
17
Additionally, Sgt. Glenn himself admits on dashcam video that he knew
18
that Mr. Hunt was “making a political statement” (7 PA 1561:15-17), and
19
told NHP Sgt. Hubbs that Mr. Hunt was “in the roadway protesting the
20
assignment” (7 PA 1620:15-16). Then, City Attorney Olsen wrote
21
handwritten notes in the criminal discover (later provided to the defense)
22
stating, “The reason he decided to exercise his constitutional rights’. 1 PA
23
42; 7 PA 1628:1-1628:4), also admitting that Mr. Hunt was protesting by
24
walking in the cross-walk.
25
However, even though the City of Boulder City knows that Mr.
26
Hunt was protesting, they still charged Mr. Hunt with “Obstruction”,
27
24
28
 1 simply for protesting by using the crosswalk during the enforcement
2 activity. The criminal complaint states as follows:
3
4 To wit: Defendant did prevent a lawful public safety law
5 enforcement exercise, namely: a joint crosswalk
enforcement activity, involving officers of the Boulder City
6 Police Department, Mesquite Police Department, and the
7 Nevada Highway Patrol by walking back and forth in a
crosswalk being used for the enforcement activity, thereby
8
obstructing traffic and obstructing, preventing and
9 interfering with the enforcement activity, all of which
10
occurred at Juniper Way and Nevada Highway, within the
corporate limits of the City of Boulder City.
11
12 The City of Boulder City literally charged Mr. Hunt for walking in the
13 crosswalk during the enforcement activity, even though they know he was
14 protesting, and the police sent out a press release asking people to use the
15 crosswalk during the enforcement activity (or get a ticket). Thus, the City
16 of Boulder City is charging Mr. Hunt with Protesting and exercising his
17 first amendment rights. This “Obstruction” charge is clearly an
18 abridgment of free speech and Judge Scotti properly dismissed it.
19
20 3. By statute (NRS 197.190), the obstruction charge cannot
apply because the First Amendment applies.
21
22 The First Amendment is clearly a provision of law. As such, by
23 statute (NRS 197.190), because the provision of law of the First
24 Amendment applies to the actions alleged in the Obstruction Charge
25 (allegedly “prevent[ing] a lawful public safety law enforcement exercise,
26 namely: a joint crosswalk enforcement activity…by walking back and
27
25
28
 1 forth in a crosswalk being used for the enforcement activity, thereby
2 obstructing traffic and obstructing, preventing and interfering with the
3 enforcement activity”), the obstruction charge is invalid.
4 NRS 197.190 states:
5
Every person who, after due notice, shall refuse or neglect to
6 make or furnish any statement, report or information lawfully
7 required of the person by any public officer, or who, in such
statement, report or information shall make any willfully
8 untrue, misleading or exaggerated statement, or who shall
9 willfully hinder, delay or obstruct any public officer in the
discharge of official powers or duties, shall, where no other
10
provision of law applies, be guilty of a misdemeanor. (emphasis
11 added)
12
“Where no other provision of law” are the operative words here.
13
Obstruction under NRS 197.190 simply does not apply where there is any
14
other applicable provision of law. Therefore, because the First
15
Amendment to our US Constitution (a clear provision of law) applies,
16
Obstruction under NRS 197.190 is simply inapplicable, and Judge Scotti
17
properly dismissed the obstruction charge.
18
19 D. JUDGE SCOTTI DID NOT MAKE ANY
20 DETERMINATION CONTRARY TO THE FEDERAL
CIVIL RIGHTS CASE AND IS NOT LIMITED BY THE
21 PRICIPLES OF ESTOPPEL AND ISSUE PRECLUSION.
22
23 It seems that the City of Boulder City fails to recognize the
24 differences between a criminal case and the federal civil rights case, which
25 are distinct. The only relevant portions of Judge Mahan’s decision in the
26 federal civil rights cases are the findings of fact that: 1) Mr. Hunt was
27
26
28
 1 protesting, and 2) Sergeant Glenn knew that Mr. Hunt was protesting 2 ½
2 minutes into the incident. None of the civil causes of action are present in
3 the criminal case, nor are they relevant.
4
5 1. The federal civil rights case puts the actions of Sergeant
6 Glenn at issue while the motion to dismiss in the criminal
case evaluates the prosecutors’ actions.
7
8 One of the biggest ways that the federal civil rights case and the
9 criminal case are distinct and different is the focus on the actions of the
10 police versus the actions of the prosecutor. The civil claim of first
11 amendment retaliation asks whether the police should be held civilly liable
12 for retaliating against a defendant for exercising his first amendment
13 rights. This issue is properly in the civil courts because it has nothing to
14 do with the criminal case. In the criminal case, it does not matter if the
15 police arrested Mr. Hunt in retaliation for exercising his first amendment
16 rights. Instead, criminal cases focus on whether Mr. Hunt violated a
17 criminal statute and whether Mr. Hunt’s due process rights were violated.
18 The City of Boulder City continually raises the civil first amendment
19 retaliation issue in this criminal case even though it is irrelevant, and
20 presumably because they want the results of the criminal case to affect the
21 results of the civil case.
22 Mr. Hunt’s motion to dismiss has a singular focus on the actions of
23 the prosecutors, not the actions of the police. The questions presented to
24 Judge Scotti were whether the prosecutors violated Mr. Hunt’s due
25 process rights through vindictive prosecution, a species of prosecutorial
26 misconduct, and whether the obstruction charge, as set out by the
27
27
28
 1 prosecutors in the criminal complaint, violated Mr. Hunt’s first
2 amendment rights. Neither of these issues bring the police conduct into
3 play and neither of these issues deal with the civil cause of action of first
4 amendment retaliation. It is entirely possible, and not a contrary
5 determination, for a criminal case to be dismissed because the prosecutor
6 committed prosecutorial misconduct, violating a defendant’s due process
7 rights, and the civil action against the police to also be dismissed because
8 the court determines that the police acted properly. The civil cause of
9 action of first amendment retaliation is a hotly contested issue in the civil
10 litigation that is currently on appeal to the 9th Circuit Court of Appeals and
11 that is the proper venue to argue the validity of the police conduct, not the
12 criminal court. First Amendment retaliation is irrelevant here.
13
2. Judge Scotti properly relied on Federal District Court Judge
14 Mahan’s factual determination that Mr. Hunt was
15 protesting, and Sergeant Glenn knew Mr. Hunt was
protesting.
16
17 The relevant portion of Federal District Court Judge’s order that are
18 relevant in this criminal case are the determinations that Mr. Hunt was
19 protesting, and Sergeant Glenn knew Mr. Hunt was protesting. Then, Sgt.
20 Glenn himself admits on dashcam video that he knew that Mr. Hunt was
21 “making a political statement” (7 PA 1561:15-17), and told NHP Sgt.
22 Hubbs that Mr. Hunt was “in the roadway protesting the assignment” (7
23 PA 1620:15-16). Then, City Attorney Olsen wrote handwritten notes in
24 the criminal discover (later provided to the defense) stating, “The reason
25 he decided to exercise his constitutional rights’. 1 PA 42; 7 PA 1628:1-
26 1628:4), also admitting that Mr. Hunt was protesting by walking in the
27
28
28
 1 cross-walk. Everyone agrees with Judge Mahan that Mr. Hunt was
2 protesting. These are all undisputed facts that Mr. Hunt presented to Judge
3 Scotti in his motion to dismiss and that Judge Scotti properly relied on
4 them in his decision. Although many other parts of Judge Mahan’s order
5 are relevant to the civil action, the fact that Mr. Hunt was protesting is the
6 only portion of Judge Mahan’s order that is relevant to the criminal action,
7 and Judge Scotti properly relied on those findings. Furthermore, those
8 findings were not disputed by the City in their Opposition.
9
10 III. CONCLUSION
11 For the above reasons, Mr. Hunt respectfully requests that this Court
12 deny the Petition and make any other findings that it deems just and proper.
13 DATED this 20th day of August, 2019.
14
15 __/s/Stephen P. Stubbs__________
16 Stephen P. Stubbs, Attorney at Law
Nevada Bar No. 10449
17 626 S. Third Street
18 Las Vegas, NV 89101
Telephone: (702) 759-3224
19 Facsimile: (702) 293-3289
20 Email: stephen@stephenpstubbs.com
Attorney for Real Party in Interest John
21
Bridgford Hunt
22
23
24
25
26
27
29
28
 1 CERTIFICATE OF SERVICE
2
3 I hereby certify that the foregoing ANSWER TO PETITION FOR
4 WRIT OF CERTIORARI OR MANDAMUS and REAL PARTY IN
5 INTEREST APPENDIX were electronically filed with the Nevada
6 Supreme Court on the 20th Day of August, 2019. Electronic Service of the
7 foregoing document shall be made in accordance with the Master Service
8 List.
9 I further certify that I served a copy of these documents by mailing
10 true and correct copies thereof, postage prepaid addressed to:
11
Honorable Richard F. Scotti, District Court Judge
12 Eighth Judicial District Court,
13 Department 2
200 Lewis Avenue
14 Las Vegas, Nevada 89155
15 scottir@clarkcountycourts.us
Respondents
16
17 Marquis Aurbach Coffing
18
Micah S. Echols, Esq.
Nevada Bar No. 8437
19 Tom W. Stewart, Esq.
20 Nevada Bar No. 14280
10001 Park Run Drive
21 Las Vegas, Nevada 89145
22 Telephone: (702) 382-0711
Facsimile: (702) 382-5816
23 mechols@maclaw.com
24 tstewart@maclaw.com
25
Steven L. Morris, Esq.
26 Nevada Bar No. 7454
27
30
28
 1 Gary R. Booker, Esq.
Nevada Bar No. 2028
2 Office of the City Attorney
3 City of Boulder City
401 California Ave.
4 Boulder City, Nevada 89005
5 Telephone: (702) 293-9238
Facsimile (702) 293-9438
6
smorris@bcnv.org
7
8
Attorneys for Petitioner, City of Boulder City

9
__/s/Stephen P. Stubbs__________
10
Stephen P. Stubbs, Attorney at Law
11 Nevada Bar No. 10449
12 626 S. Third Street
Las Vegas, NV 89101
13 Telephone: (702) 759-3224
14 Facsimile: (702) 293-3289
Email: stephen@stephenpstubbs.com
15 Attorney for Real Party in Interest John
16 Bridgford Hunt
17
18
19
20
21
22
23
24
25
26
27
31
28