Las Vegas Sun

September 30, 2014

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Review board keeps subpoena power

A Citizen Review Board that investigates complaints of misconduct against Metro Police will retain its power to compel officers to appear at their hearings, a judge ruled Wednesday, shutting down the police union's attempt at skirting the subpoenas.

Shortly after the hearing, Andrea Beckman, the review board's executive director, prepared another subpoena for Steve Leyba, the officer who ignored an earlier one, requiring him to appear before the board's hearing panel Feb. 16.

This was the first time the board's subpoena power was challenged by police, making Judge Jessie Walsh's ruling significant.

"I think the judge was clearly aware of all the statutes and ordinances and had reviewed all the legislative minutes and based her opinion on the law, which has been clear that we do have jurisdiction to subpoena officers," Beckman said after the ruling.

Leyba and the Las Vegas Police Protective Association, the union representing some of Metro's rank-and-file officers, had challenged the board's authority.

Metro Police Detective David Kallas, executive director of the the union, vowed to appeal Walsh's decision to the state supreme court.

The union had told officers who were issued subpoenas by the Citizen Review Board that they didn't have to appear at their hearings. Kallas said their advice won't change in light of the ruling.

"We'll tell them it's your choice," he said. "We believe they don't have subpoena power."

The dispute stems from a complaint filed with the review board in December 2003 by Laughlin resident Jarrad Lopez.

He alleged that Leyba, who works out of Metro's Laughlin substation, and another officer, Michael Giblin, searched his apartment without his permission while conducting a drug investigation.

The review board subpoenaed Leyba to testify at a hearing Nov. 30 in the Lopez case, but he didn't show up.

At a hearing before Walsh last month, Leyba, who is not a member of the police union, blamed a breakdown of communication and said he told his superior officers that he didn't intend to appear at the hearing and thought they would call the review board and tell them.

He said that he had been exonerated by two Metro internal investigations and believed this was a closed matter, and that his rights would have been violated if he had appeared.

But Beckman argued that Leyba should have appeared and invoked his Fifth Amendment right against self-incrimination instead of not showing up at the hearing.

In court Wednesday, Leyba told Walsh that police officers don't have any rights before the citizen review board.

"It's really a dead end, a gray area. There are loopholes that aren't closed," he said. "I'm going to follow my beliefs, and I believe I'm right here."

John Dean Harper, attorney for the union, said the law clearly delineates the rights of officers, and the citizen review board has no authority to issue subpoenas.

But after reviewing the documentation submitted by all parties, Walsh ruled the citizen review board does have subpoena power, and ordered Leyba to appear before the board's hearing panel.

If Leyba again fails to appear he will be found to be in contempt and will be subject to punishment, Walsh said.

Leyba is required to testify unless he invokes his Fifth Amendment right against self-incrimination.

"Each citizen has a duty to obey and uphold the law, including police officers," Walsh said.

Following the hearing, Harper indicated he would work on an appeal of Walsh's finding, saying, "I think we need to let the highest court in the land make a decision."

Giblin, the other officer involved in the Lopez case with Leyba, appeared at the Citizen Review Board hearing last month but refused to testify and also did not invoke his Fifth Amendment rights, Beckman said. Like Leyba, he will be issued another subpoena.

The Citizen Review Board grew out of a strong public demand for an independent review of alleged police misconduct. The Legislature passed laws in 1999 to provide for the creation of the board.

The review board members and their advocates hold that the laws give the board power to subpoena officers to testify under oath in a closed hearing, similar to that of a grand jury.

In 2003 the union sponsored a bill that would have blocked the board from issuing subpoenas to officers, but it died in committee.

Gary Peck, executive director of the ACLU of Nevada, called the union's efforts "forum shopping," and said his organization will file a brief in support of the Citizen Review Board when the union appeals.

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