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  • Bridgford 7-31-20

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    The court denied Appellant John Hunt's motion to dismiss for vindictive prosecution and on First Amendment grounds. The court found that Boulder City did not engage in vindictive prosecution of Hunt and that the timing of renewed charges was adequately explained by the city attorney's impending retirement and lack of staff. The court also found that Hunt's claims of First Amendment retaliation were barred by prior federal court rulings in favor of Boulder City. The court ordered Boulder City to prepare an order consistent with the denial of Hunt's motion.

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    The court denied Appellant John Hunt's motion to dismiss for vindictive prosecution and on First Amendment grounds. The court found that Boulder City did not engage in vindictive prosecution of Hunt and that the timing of renewed charges was adequately explained by the city attorney's impending retirement and lack of staff. The court also found that Hunt's claims of First Amendment retaliation were barred by prior federal court rulings in favor of Boulder City. The court ordered Boulder City to prepare an order consistent with the denial of Hunt's motion.

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    Bridgford 7-31-20

    Uploaded by

    Boulder City Review
    The court denied Appellant John Hunt's motion to dismiss for vindictive prosecution and on First Amendment grounds. The court found that Boulder City did not engage in vindictive prosecution of Hunt and that the timing of renewed charges was adequately explained by the city attorney's impending retirement and lack of staff. The court also found that Hunt's claims of First Amendment retaliation were barred by prior federal court rulings in favor of Boulder City. The court ordered Boulder City to prepare an order consistent with the denial of Hunt's motion.

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    of 3

    ELECTRONICALLY SERVED

    7/31/2020 8:21 AM

    C-18-334314-A

    DISTRICT COURT
    CLARK COUNTY, NEVADA

    Criminal Appeal COURT MINUTES July 31, 2020

    C-18-334314-A John Bridgford Hunt, Appellant(s)


    vs
    Boulder City of, Respondent(s)

    July 31, 2020 3:00 PM Minute Order

    HEARD BY: Scotti, Richard F. COURTROOM: Chambers

    COURT CLERK: Louisa Garcia

    JOURNAL ENTRIES

    - Pending before this Court is Appellant's Motion to Dismiss for Vindictive Prosecution and on First
    Amendment Grounds. The Court DENIES that Motion for the reasons expressed below. In
    particular, the Court finds that Boulder City did not engage in vindictive prosecution; City Attorneys
    David Olsen and Steve Morris did not engage in vindictive prosecution; and the reputations of City
    Attorney Steve Morris, and former City Attorney David Olsen, should not be tarnished due to this
    matter.

    This Court is a strong protector of the First Amendment to the U.S. Constitution, and Due Process of
    law guaranteed by the Fifth and Fourteenth Amendments of the U.S. Constitution. Under the
    particular facts and circumstance of this case, Boulder City did not violate Hunt s rights.

    Respondent City of Boulder City requested the Court to conduct an Evidentiary Hearing to present
    new evidence that the Court had not yet received. The Court granted that request.

    At the Evidentiary Hearing Boulder City presented evidence that the Federal District Court granted
    summary judgment on Hunt's claim that Boulder City had violated his First Amendment rights. The
    Federal Court held that Boulder City had probable cause to arrest Hunt; that the arrest was not a
    retaliation against Hunt for his purported exercise of First Amendment activity; and that Boulder
    City had not engaged in vindictive prosecution. On Hunt's Appeal to the Ninth Circuit, the Ninth
    Circuit upheld the Federal Court Judgment in favor of Boulder City, reiterating that Boulder City had
    probable cause to arrest Hunt, and that Boulder City had not engaged in First Amendment retaliatory
    conduct.

    PRINT DATE: 07/31/2020 Page 1 of 3 Minutes Date: July 31, 2020

    Case Number: C-18-334314-A


    C-18-334314-A

    The very facts and circumstances that Hunt presents to this Court were presented to and considered
    by the Federal District Court, and the Ninth Circuit. Upon consideration of those facts, the Federal
    Courts found they did not support Hunt s Section 1983 claims. Accordingly, the Court finds that
    Hunt's claims of First Amendment retaliation are barred by the doctrine of issue preclusion.

    Hunt contends he proved vindictive prosecution on the grounds that the City renewed its charges
    against Hunt, and added charges against Hunt, just a week after Hunt had filed its Federal Court
    claims. The City had dismissed the original charges against Hunt on June 27, 2016 always intending
    to renew the charges once more evidence had been obtained. The City had all the facts it needed to
    support the new claims just a couple months later, in August 2016, but did not re-file charges against
    Hunt at that time. Hunt filed his Federal Court Complaint against the City on May 30, 2017. The
    City then renewed its charges against Hunt on June 5, 2017. At the evidentiary hearing, Boulder City
    presented this Court with a plausible non-retaliatory explanation for the timing.

    From the evidence presented, the Court finds that for several months prior to June 5, 2017, City
    Attorney Olsen was in the process of retiring from his position. During this pre-retirement period
    Mr. Olsen was distracted away from the Hunt matter and handling loose ends. Further distracting
    City Attorney Olsen was the fact that he was without a paralegal for several weeks. Mr. Olsen
    testified that Hunt s filing of the Federal Court complaint reminded him of the need to file the
    charges against Hunt. The Court finds such testimony to be credible and persuasive. The City's new
    charges against Hunt were a reaction to Hunt's Federal Complaint - but not a retaliatory reaction.

    Hunt relies on U.S. v. Jenkins, 504 F.3d 694 (9th Cir. 2007) to support his claim that vindictive
    prosecution can be based solely on the timing of the events. Pursuant to Jenkins, Hunt had the
    burden to demonstrate a "reasonable likelihood" that the City would not have brought the charges
    absent Hunt's filing of the Federal Court action. If such "reasonable likelihood" exists, then that
    establishes a "presumption of vindictiveness. Jenkins does support the view that the timing could
    establish the "appearance of prosecutorial vindictiveness." Even so, that is only the first part of the
    analysis.

    Under Jenkins, if the Appellant establishes the appearance of vindictiveness, then the burden shifts to
    the government to rebut that appearance. The government can rebut the appearance of
    vindictiveness with "objective evidence justifying the prosecutor's action."

    In this case, the City did present objective evidence justifying the City Attorney’s action. He was
    winding down his affairs due to the anticipated retirement. He had been without a paralegal for part
    of that time period. He had forgotten about the Hunt matter. And Hunt had jogged his memory by
    filing his Federal Court action. The City's evidence was sufficient to convince this Court that the
    filing of the charges did not stem from a vindictive motive, and was justified by the independent
    reasons discussed herein.

    PRINT DATE: 07/31/2020 Page 2 of 3 Minutes Date: July 31, 2020


    C-18-334314-A

    The City's actions herein do not create a chilling effect on a defendant's ability to exercise its First
    Amendment rights because the City had plausible non-retaliatory explanations for its actions.

    The Court directs Boulder City to prepare the proposed Order in this matter, consistent herewith,
    correcting for any scrivener's errors, and adding appropriate context.

    CLERK'S NOTE: This Minute Order has been electronically served to all registered parties for
    Odyssey File & Serve. 7/31/20

    PRINT DATE: 07/31/2020 Page 3 of 3 Minutes Date: July 31, 2020

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