IN THE SUPREME COURT OF THE STATE OF NEVADA

CITY OF BOULDER CITY,

Electronically Filed
Petitioner, Supreme Court Case No.
Jun 20 2019 09:54 a.m.
vs. Elizabeth A. Brown
Clerk of Supreme Court
THE EIGHTH JUDICIAL DISTRICT District Court Case No. C-18-334314-A
COURT FOR THE STATE OF
NEVADA, IN AND FOR THE
COUNTY OF CLARK, AND THE
HONORABLE RICHARD F. SCOTTI,
DISTRICT JUDGE,

Respondents,

and

JOHN BRIDGFORD HUNT,

Real Party in Interest.

PETITION FOR WRIT OF CERTIORARI OR MANDAMUS

Marquis Aurbach Coffing Steven L. Morris, Esq.

Micah S. Echols, Esq. Nevada Bar No. 7454
Nevada Bar No. 8437 Gary R. Booker, Esq.
Tom W. Stewart, Esq. Nevada Bar No. 2028
Nevada Bar No. 14280 Office of the City Attorney
10001 Park Run Drive City of Boulder City
Las Vegas, Nevada 89145 401 California Ave.
Telephone: (702) 382-0711 Boulder City, Nevada 89005
Facsimile: (702) 382-5816 Telephone: (702) 293-9238
[email protected] Facsimile (702) 293-9438
[email protected] [email protected]

Attorneys for Petitioner, City of Boulder City

Docket 79005 Document 2019-26656

 NRAP 26.1 DISCLOSURE

The undersigned counsel of record certifies that the following are persons

and entities as described in NRAP 26.1(a), and must be disclosed. These

representations are made in order that the Justices of this Court may evaluate

possible disqualification or recusal.

1. The City of Boulder City (“Boulder City”) is a governmental entity

and has no corporate affiliation.

2. Boulder City is represented by the City Attorney for Boulder City and

Marquis Aurbach Coffing.

Dated this 19th day of June, 2019.

MARQUIS AURBACH COFFING

By /s/ Micah S. Echols

Micah S. Echols, Esq.
Nevada Bar No. 8437
Tom W. Stewart, Esq.
Nevada Bar No. 14280
10001 Park Run Drive
Las Vegas, Nevada 89145
Attorneys for Petitioner,
City of Boulder City

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 TABLE OF CONTENTS

I. JURISDICTIONAL STATEMENT ................................................................ 1

II. ROUTING STATEMENT .............................................................................. 2

III. ISSUES PRESENTED FOR REVIEW ........................................................... 4

A. WHETHER THE DISTRICT COURT WAS WITHOUT

AUTHORITY TO GRANT HUNT’S MOTION TO DISMISS
FOR VINDICTIVE PROSECUTION AND ON FIRST
AMENDMENT GROUNDS IN A PRETRIAL PROCEEDING. ........ 4

B. WHETHER THE DISTRICT COURT WAS ALSO WITHOUT

AUTHORITY TO MAKE A PRETRIAL DETERMINATION OF
VINDICTIVE PROSECUTION. .......................................................... 4

C. WHETHER THE DISTRICT COURT WAS ALSO WITHOUT

AUTHORITY TO MAKE A PRETRIAL DETERMINATION OF
HUNT’S FIRST AMENDMENT RIGHTS IN THE CONTEXT
OF THE MISDEMEANOR CRIMINAL CHARGES.......................... 4

D. WHETHER THE DISTRICT COURT WAS ALSO WITHOUT

AUTHORITY TO MAKE CONTRARY DETERMINATIONS
BASED UPON PRINCIPLES OF ESTOPPEL AND
PRECLUSION. ..................................................................................... 4

IV. SUMMARY OF ARGUMENT AND REQUESTED RELIEF ...................... 5

V. STANDARDS OF REVIEW........................................................................... 7

VI. FACTUAL AND PROCEDURAL BACKGROUND .................................... 8

A. THE PRESS RELEASE. ....................................................................... 8

B. THE CROSSWALK ENFORCEMENT ACTIVITY. .......................... 9

C. HUNT IS PULLED OVER AND RECEIVES A CITATION BY

OFFICER DRISCOLL. ....................................................................... 10
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 D. HUNT DECIDES TO WALK BACK AND FORTH IN THE
CROSSWALK “TO INFINITY” OR UNTIL HIS CAR REPAIRS
WERE COMPLETE. .......................................................................... 10

E. SERGEANT GLENN CONTACTS HUNT TO PREVENT HIM

FROM KILLING HIMSELF. ............................................................. 12

F. SERGEANT GLENN ARRESTS HUNT. .......................................... 13

G. THE AFTERMATH. ........................................................................... 15

H. THE CITATION AND THE MUNICIPAL COURT CASE. ............ 15

I. HUNT’S CRIMINAL CONVICTION. .............................................. 17

J. THE FEDERAL DISTRICT COURT’S SUMMARY

JUDGMENT ORDER. ........................................................................ 17

K. HUNT’S STATE DISTRICT COURT APPEAL FROM THE

MUNICIPAL COURT CONVICTION. ............................................. 18

VII. LEGAL ARGUMENT................................................................................... 21

A. THE DISTRICT COURT WAS WITHOUT AUTHORITY TO

GRANT HUNT’S MOTION TO DISMISS FOR VINDICTIVE
PROSECUTION AND ON FIRST AMENDMENT GROUNDS
IN A PRETRIAL PROCEEDING. ..................................................... 21

1. Boulder City Is Entitled to a “Trial Anew.” ............................. 22

2. The District Court Was Without Authority to Construe Facts

in Favor of Hunt, as the Moving Party, to Dismiss the
Misdemeanor Charges Against Him. ........................................ 23

B. THE DISTRICT COURT WAS WITHOUT AUTHORITY TO

MAKE A PRETRIAL DETERMINATION OF VINDICTIVE
PROSECUTION. ................................................................................ 24

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 1. NRS 174.085(5)(b) and (6) Govern Boulder City’s Ability to
Refile Misdemeanor Criminal Charges, Not Ninth Circuit
Case Law. .................................................................................. 25

2. Once Again, the District Court Was Without Authority to

Construe Facts in Favor of Hunt, as the Moving Party, to
Conclude that He Was Vindictively Prosecuted. ...................... 27

C. THE DISTRICT COURT WAS ALSO WITHOUT AUTHORITY

TO MAKE A PRETRIAL DETERMINATION OF HUNT’S
FIRST AMENDMENT RIGHTS IN THE CONTEXT OF THE
MISDEMEANOR CRIMINAL CHARGES. ..................................... 28

1. The First Amendment Is Not an Absolute Defense to Hunt’s

Criminal Acts, Including Obstruction. ...................................... 29

2. The District Court Was Once Again Without Authority to

Construe the Facts in Favor of Hunt, as the Moving Party, to
Make Determinations Regarding His First Amendment
Defense...................................................................................... 31

D. THE DISTRICT COURT WAS ALSO WITHOUT AUTHORITY

TO MAKE CONTRARY DETERMINATIONS BASED UPON
PRINCIPLES OF ESTOPPEL AND PRECLUSION. ....................... 32

VIII. CONCLUSION.............................................................................................. 34

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 TABLE OF AUTHORITIES

CASES

A.F. Constr. Co. v. Virgin River Casino,

118 Nev. 699, 56 P.3d 887 (2002) .......................................................................22

Beazer Homes, Nev., Inc. v. Dist. Ct.,

120 Nev. 575, 97 P.3d 1132 (2004) .......................................................................8

Brown v. MHC Stagecoach,

129 Nev. 343, 301 P.3d 850 (2013) .....................................................................21

Cowgill v. Raymark Indus., Inc.,

832 F.2d 798 (3d Cir. 1987) .................................................................................34

Diaz v. Dist. Ct.,

116 Nev. 88, 993 P.2d 50 (2000) ...........................................................................8

Edwards v. Ghandour,
123 Nev. 105, 159 P.3d 1086 (2007) ...................................................................33

Five Star Capital Corp. v. Ruby,

124 Nev. 1048, 194 P.3d 709 (2008) ...................................................................33

Ford v. State,
127 Nev. 608, 262 P.3d 1123 (2011) ...................................................................29

Garcia v. Prudential Ins. Co. of Am.,

129 Nev. 15, 293 P.3d 869 (2013) .......................................................................34

Int’l Game Tech., Inc. v. Dist. Ct.,

124 Nev. 193, 179 P.3d 556 (2008) .......................................................................8

LaMantia v. Redisi,
118 Nev. 27, 38 P.3d 877 (2002) .........................................................................24

Las Vegas Review-Journal v. Dist. Ct.,

412 P.3d 23 (Nev. 2018) ........................................................................................2
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Lozman v. City of Riviera Beach,
585 U.S –—, 138 S. Ct. 1945 (2018) .................................................................30

Nieves v. Bartlett,
587 U.S. –—, 2019 WL 2257157 (U.S. May 28, 2019) ......................................30

Olney v. U.S.,
433 F.2d 161 (9th Cir. 1970)................................................................................34

Rice v. Paladin Enters., Inc.,

128 F.3d 233 (4th Cir. 1997)................................................................................29

Salaiscooper v. Dist. Ct.,

117 Nev. 892, 34 P.3d 509 (2001) .........................................................................7

Sheriff, Washoe County v. Marcus,

116 Nev. 188, 995 P.2d 1016 (2000) .................................................... 3, 6, 24, 26

State v. Bennett,
119 Nev. 589, 81 P.3d 1 (2003) .................................................................. 4, 7, 32

Taylor Constr. Co. v. Hilton Hotels Corp.,

100 Nev. 207, 678 P.2d 1152 (1984) ...................................................................22

Taylor v. Barringer,
75 Nev. 409, 344 P.2d 676 (1959) ................................................................ 22, 23

Texas v. McCullough,
475 U.S. 134 (1986) .............................................................................................19

Thigpen v. Roberts,
468 U.S. 26 (1984) ...............................................................................................19

Tripp v. City of Sparks,

92 Nev. 362, 550 P.2d 419 (1976) .........................................................................1

Tsao v. Desert Palace, Inc.,

698 F.3d 1128 (9th Cir. 2012) ...................................................................... 31, 32

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U.S. v. Andrews,
612 F.2d 235 (6th Cir. 1979)................................................................................26

U.S. v. Freeman,
761 F.2d 549 (9th Cir. 1985)................................................................. 4, 6, 28, 29

U.S. v. Gallegos-Curiel,
681 F.2d 1164 (9th Cir. 1982) ...................................................................... 27, 28

U.S. v. Jenkins,
504 F.3d 694 (9th Cir. 2007)..................................................... 3, 5, 20, 24, 26, 27

U.S. v. Kent,
649 F.3d 906 (9th Cir. 2011)................................................................................27

United States v. Goodwin,

457 U.S. 368 (1982) ...................................................................................... 19, 27

United States v. White,

610 F.3d 956 (7th Cir. 2010)................................................................................29

Warren v. Dist. Ct.,

427 P.3d 1033 (Nev. 2018) ................................................................................1, 3

Watson v. Housing Authority of City of North Las Vegas,

97 Nev. 240, 627 P.2d 405 (1981) .........................................................................8

Waugh v. Casazza,
85 Nev. 520, 458 P.2d 359 (1969) .........................................................................1

White v. U.S.,
371 F.3d 900 (7th Cir. 2004)................................................................................34

CONSTITUTIONAL PROVISIONS

NEVADA CONSTITUTION ...........................................................................................18

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NEVADA CONSTITUTION, Article 6..........................................................................1, 7

U.S. CONSTITUTION, First Amend. .... 1, 3, 5, 6, 17, 18, 19, 20, 21, 28, 29, 30, 31, 33

OTHER AUTHORITIES

BLACK’S LAW DICTIONARY (10th ed. 2014) ............................................................23

RULES

NRAP 17 ....................................................................................................................2

NRAP 17(a)(11)–(12) ................................................................................................2

NRAP 17(b)(1)–(4) ....................................................................................................2

NRAP 4(b)(4) .............................................................................................................2

STATUTES

NRS 5.010(2) ............................................................................................ 3, 5, 21, 22

NRS 5.073(1) ................................................................................ 3, 5, 21, 22, 23, 34

NRS 34.020 ............................................................................................................1, 7

NRS 34.020(2) .........................................................................................................23

NRS 171.123(3) .......................................................................................................31

NRS 174.085 ............................................................................................................27

NRS 174.085(5) .......................................................................................................25

-viii-
NRS 174.085(5)(b).................................................................................... 3, 5, 24, 25

NRS 174.085(6) ........................................................................................ 3, 5, 24, 25

NRS 174.135 ..................................................................................................... 23, 28

NRS 174.135(2) .......................................................................................................23

NRS 174.135(3) .......................................................................................................23

NRS 177.015(1)(b).....................................................................................................2

NRS 178.562(2) .........................................................................................................3

NRS 197.190 ............................................................................................................32

NRS 199.280 ..................................................................................................... 15, 27

NRS 266.595 ..................................................................................... 5, 21, 22, 23, 34

NRS 482.255 ............................................................................................................17

NRS 484B.283 .................................................................................................. 15, 27

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I. JURISDICTIONAL STATEMENT

This case originates from the Boulder City Municipal Court where Real

Party in Interest, John Hunt (“Hunt”), was convicted of several misdemeanor

charges. 1 Petitioner’s Appendix (“PA”) 6. Hunt then appealed to the District

Court. 1 PA 3–4. Prior to a trial de novo and without a hearing, the District Court

granted Hunt’s motion to dismiss for vindictive prosecution and on First

Amendment grounds by minute order. 7 PA 1677–1678. No written order

granting Hunt’s motion to dismiss has been entered. 7 PA 1681–1682. Since this

case arose in an “inferior tribunal,” the District Court had “final appellate

jurisdiction” according to Article 6, Section 6 of the NEVADA CONSTITUTION.

See, e.g., Tripp v. City of Sparks, 92 Nev. 362, 363, 550 P.2d 419, 419 (1976).

Thus, a petition for a writ of certiorari is the proper vehicle to challenge the

District Court’s minute order. See NRS 34.020; Warren v. Dist. Ct., 427 P.3d 1033

(Nev. 2018) (entertaining a petition for a writ of certiorari in a matter arising from

a justice court).

In the event that the District Court enters a written order granting Hunt’s

motion to dismiss based upon the current minute order (7 PA 1677–1678), the

written order may become appealable. In Waugh v. Casazza, 85 Nev. 520, 521,

458 P.2d 359, 359–360 (1969), this Court observed that an appeal to this Court

from a district court’s review of a justice court decision is generally improper,

Page 1 of 38
though there may be an exception if such an appeal is provided for by statute.

NRS 177.015(1)(b) specifically allows for an appeal “from an order of the district

court granting a motion to dismiss….” However, NRAP 4(b)(4) clarifies that “[a]

judgment or order is entered for purposes of this Rule when it is signed by the

judge and filed with the clerk.” As such, if the District Court’s written order is

entered during the pendency of this original proceeding, Boulder City will appeal

the written order out of an abundance of caution. Likewise, this Court may order

the District Court to enter a written order and then proceed either by Boulder

City’s separate appeal (if appellate jurisdiction is proper) or within this original

proceeding. See Las Vegas Review-Journal v. Dist. Ct., 412 P.3d 23 (Nev. 2018)

(entertaining a writ petition from an oral order granting injunction, even though the

later written order granting injunction was appealable). Therefore, because there is

currently no written order granting Hunt’s motion to dismiss, this petition for a

writ of certiorari or mandamus is the proper vehicle to seek relief in this Court.

II. ROUTING STATEMENT

Boulder City asks the Supreme Court to retain this original proceeding.

NRAP 17 does not specifically mention original proceedings arising from inferior

tribunals or dismissals of criminal charges. However, NRAP 17(b)(1)–(4)

generally outlines that non-felony cases are presumptively assigned to the Court of

Appeals. But, NRAP 17(a)(11)–(12) provides an exception for matters presenting

Page 2 of 38
issues of first impression or matters of statewide public importance. In this writ

petition, Boulder City asks this Court to provide guidance to the District Court on

the proper procedure to process municipal court appeals. Cf. Warren v. Dist. Ct.,

427 P.3d 1033 (Nev. 2018) (addressing whether NRS 178.562(2) limits the State’s

options after the justice court dismisses a criminal complaint that charges felony

and/or gross misdemeanor offenses). Specifically, Boulder City asks this Court to

enforce NRS 5.073(1), which entitled Boulder City to a “trial anew” in the District

Court since the Boulder City Municipal Court is not a court of record.

See NRS 5.010(2). Instead, the District Court, without a hearing, construed key

facts in favor of Hunt on a motion to dismiss. 7 PA 1677–1678. In doing so, the

District Court also erroneously relied upon Ninth Circuit case law to conclude that

Boulder City’s prosecution of Hunt was vindictive. Id. (citing U.S. v. Jenkins,

504 F.3d 694 (9th Cir. 2007)). Yet, NRS 174.085(5)(b) and (6) expressly allow the

prosecution one chance to dismiss a misdemeanor complaint without prejudice,

with the right to refile. See Sheriff, Washoe County v. Marcus, 116 Nev. 188, 191,

995 P.2d 1016, 1017 (2000). Thus, the District Court was without authority to

dismiss the new criminal charges against Hunt on the basis of alleged vindictive

prosecution. Aside from the District Court’s error in construing facts in favor of

Hunt in a dismissal proceeding without a hearing, the District Court was also

without authority to conclude that the First Amendment somehow shielded Hunt

Page 3 of 38
from a misdemeanor criminal obstruction charge. 7 PA 1678. Cf. U.S. v.

Freeman, 761 F.2d 549, 552 (9th Cir. 1985). Finally, the District Court largely

drew its factual findings from a summary judgment order issued by the Federal

District Court. 6 PA 1429–1437. Ironically, the summary judgment order was

entered in favor of Boulder City, yet the District Court ignored key portions of the

order that prohibited the dismissal of the misdemeanor charges against Hunt. Id.

In fact, based upon principles of estoppel and preclusion, the District Court was

without authority to reach conclusions contrary to the summary judgment order.

See State v. Bennett, 119 Nev. 589, 605, 81 P.3d 1, 12 (2003). Therefore, Boulder

City asks the Supreme Court to retain this original proceeding.

III. ISSUES PRESENTED FOR REVIEW

A. WHETHER THE DISTRICT COURT WAS WITHOUT

AUTHORITY TO GRANT HUNT’S MOTION TO DISMISS
FOR VINDICTIVE PROSECUTION AND ON FIRST
AMENDMENT GROUNDS IN A PRETRIAL PROCEEDING.

B. WHETHER THE DISTRICT COURT WAS ALSO WITHOUT

AUTHORITY TO MAKE A PRETRIAL DETERMINATION OF
VINDICTIVE PROSECUTION.

C. WHETHER THE DISTRICT COURT WAS ALSO WITHOUT

AUTHORITY TO MAKE A PRETRIAL DETERMINATION OF
HUNT’S FIRST AMENDMENT RIGHTS IN THE CONTEXT
OF THE MISDEMEANOR CRIMINAL CHARGES.

D. WHETHER THE DISTRICT COURT WAS ALSO WITHOUT

AUTHORITY TO MAKE CONTRARY DETERMINATIONS
BASED UPON PRINCIPLES OF ESTOPPEL AND
PRECLUSION.

Page 4 of 38
IV. SUMMARY OF ARGUMENT AND REQUESTED RELIEF

In this original proceeding, Boulder City seeks extraordinary relief from this

Court to vacate the District Court’s minute order (7 PA 1677–1678) and require the

District Court to hold the trial de novo, as required by NRS 5.073(1) and

NRS 266.595, based upon the following reasons:

The District Court was without authority to grant Hunt’s motion to dismiss

for vindictive prosecution and on First Amendment grounds in a pretrial

proceeding. Specifically, Boulder City asks this Court to enforce NRS 5.073(1),

which entitled Boulder City to a “trial anew” in the District Court since the

Boulder City Municipal Court is not a court of record. See NRS 5.010(2). Instead,

the District Court, without a hearing, construed key facts in favor of Hunt on a

motion to dismiss. 7 PA 1677–1678. Therefore, this Court should vacate the

District Court’s minute order and require the District Court to hold the trial de

novo.

The District Court was also without authority to make a pretrial

determination of vindictive prosecution. The District Court erroneously relied

upon Ninth Circuit case law to conclude that Boulder City’s prosecution of Hunt

was vindictive. Id. (citing U.S. v. Jenkins, 504 F.3d 694 (9th Cir. 2007)). Yet,

NRS 174.085(5)(b) and (6) expressly allow the prosecution one chance to dismiss

a misdemeanor complaint without prejudice, with the right to refile. See Sheriff,

Page 5 of 38
Washoe County v. Marcus, 116 Nev. 188, 191, 995 P.2d 1016, 1017 (2000). Thus,

the District Court was without authority to dismiss the new criminal charges

against Hunt on the basis of alleged vindictive prosecution. On this additional

basis, Boulder City, likewise, asks this Court to vacate the District Court’s minute

order and require the District Court to hold the trial de novo.

The District Court was also without authority to make a pretrial

determination of Hunt’s First Amendment rights in the context of the misdemeanor

criminal charges, particularly since the arrest was made with probable cause.

Aside from the District Court’s error in construing facts in favor of Hunt in a

dismissal proceeding without a hearing, the District Court was also without

authority to conclude that the First Amendment somehow shielded Hunt from a

misdemeanor criminal obstruction charge. 7 PA 1678. Cf. U.S. v. Freeman, 761

F.2d 549, 552 (9th Cir. 1985). In other words, Hunt’s criminal act itself cannot be

defended by a broad recourse to the First Amendment. Thus, this Court has yet

another basis to grant Boulder City’s requested relief to vacate the District Court’s

minute order and require the District Court to hold the trial de novo.

Finally, the District Court was also without authority to make contrary

determinations based upon principles of estoppel and preclusion. The District

Court largely drew its factual findings from a summary judgment order issued by

the Federal District Court. 6 PA 1429–1437. Ironically, the summary judgment

Page 6 of 38
order was entered in favor of Boulder City, yet the District Court ignored key

portions of the order that prohibited the dismissal of the misdemeanor charges

against Hunt. Id. In fact, based upon principles of estoppel and preclusion, the

District Court was without authority to reach conclusions contrary to the summary

judgment order. See State v. Bennett, 119 Nev. 589, 605, 81 P.3d 1, 12 (2003).

For these reasons, Boulder City respectfully requests that this Court grant

the requested relief of vacating the District Court’s minute order dismissing the

misdemeanor charges against Hunt, and require the District Court to hold the trial

de novo.

V. STANDARDS OF REVIEW

Petitions for extraordinary relief are addressed to the sound discretion of this

Court. See Salaiscooper v. Dist. Ct., 117 Nev. 892, 902, 34 P.3d 509, 515 (2001). This

Court will grant extraordinary relief to address a matter of statewide importance, in a

matter where “sound judicial economy and administration militated in favor of such

petitions,” and in a matter where there was a “gross miscarriage of justice.” Id.

NRS 34.020 specifically authorizes writ petitions to this Court, including from cases

originating in inferior tribunals. According to Article 6, Section 4 of the NEVADA

CONSTITUTION, “[t]he Supreme Court and the court of appeals have power to issue writs

of mandamus, certiorari, prohibition, quo warranto and habeas corpus and also all writs

necessary or proper to the complete exercise of their jurisdiction.” Although this Court

generally reviews petitions for extraordinary relief with an abuse of discretion standard,

Page 7 of 38
this Court will still apply a de novo standard of review to questions of law in writ petition

proceedings. See Int’l Game Tech., Inc. v. Dist. Ct., 124 Nev. 193, 198, 179 P.3d 556,

559 (2008) (citation omitted). This Court will exercise its original jurisdiction to

entertain a writ petition when presented with a unique opportunity to interpret and define

the parameters of a statute. See Diaz v. Dist. Ct., 116 Nev. 88, 93, 993 P.2d 50, 54

(2000).

An application for a writ of certiorari to review the exercise of judicial functions

by an inferior tribunal shall be granted whenever that lower body exceeds its jurisdiction.

See Watson v. Housing Authority of City of North Las Vegas, 97 Nev. 240, 242, 627 P.2d

405, 406–407 (1981). A writ of mandamus is available to compel the performance of an

act which the law requires as a duty resulting from an office, trust or station, or to control

a manifest abuse of discretion. See Beazer Homes, Nev., Inc. v. Dist. Ct., 120 Nev. 575,

97 P.3d 1132, 1135 (2004); NRS 34.160.

VI. FACTUAL AND PROCEDURAL BACKGROUND

A. THE PRESS RELEASE.

On June 4, 2016, Boulder City, along with the Department of Public Safety,

issued a press release that several law enforcement agencies “w[ould] be out in

force between June 3 and June 13, 2016 to educate about and enforce pedestrian

safety laws.” 1 PA 30. The press release further noted that the enforcement

“w[ould] include high pedestrian traffic areas both in Boulder City and all around

Nevada,” that “Nevada state law requires pedestrians to use sidewalks, crosswalks,

Page 8 of 38
and pedestrian bridges,” and that “[m]otorists must yield to pedestrians, and stop

when vehicles are stopped for pedestrians.” Id.

B. THE CROSSWALK ENFORCEMENT ACTIVITY.

On June 8, 2016, the Boulder City Police Department (“BCPD”), the

Nevada Highway Patrol (“NHP”), and the Mesquite Police Department (“MPD”)

were conducting a crosswalk-enforcement activity (the “Activity”). 6 PA 1430–

1431. Generally speaking, the Activity involved the issuing of traffic citations to

drivers who did not properly yield to a decoy pedestrian. 6 PA 1430–1431. On

behalf of BCPD, Sergeant John Glenn was the coordinator of the event, and BCPD

officer Tiffany Driscoll was the co-coordinator. 4 PA 870; 5 PA 1085. The goal

of the event was to conduct a high-visibility enforcement activity to bring

awareness to specific, targeted locations where vehicles regularly fail to yield to

pedestrians (4 PA 872), educate the public on pedestrian awareness (4 PA 872),

and to reduce pedestrian fatalities and injuries. 4 PA 873–874. BCPD did not

track any revenue generated by the event. 4 PA 874.

On June 8, 2016, Boulder City resident Mark Donnelly volunteered to act as

the decoy for the Activity. 5 PA 1028. The Activity was set up at a crosswalk

between a McDonald’s and a Pizza Hut. 5 PA 1028.

Page 9 of 38
 C. HUNT IS PULLED OVER AND RECEIVES A CITATION BY
OFFICER DRISCOLL.

At around 7:00 a.m. on the date of the Activity, Hunt was driving his Toyota

Camry to Big O Tires to have repairs performed on his vehicle. 3 PA 595.

According to Hunt, he received a citation for failing to yield to the decoy during

the routine traffic stop. 3 PA 595. Officer Driscoll described Hunt as cooperative.

5 PA 1091. Hunt did not contest the traffic citation issued by Officer Driscoll in

this proceeding. See, e.g, 6 PA 1324–1351.

D. HUNT DECIDES TO WALK BACK AND FORTH IN THE

CROSSWALK “TO INFINITY” OR UNTIL HIS CAR REPAIRS
WERE COMPLETE.

After receiving his traffic ticket, Hunt continued to Big O Tires a few

hundred yards away. 3 PA 596. At Big O Tires, Hunt talked to employees who

“were amazed at how many people were being pulled over.” Id. Hunt found the

Activity to be “disgusting” because “the police were just reaching in people’s

pockets and pulling out money.” Id. Hunt became angry. Id. After

commissioning the repairs to his vehicle, Hunt began to walk home. Id.

In order to get home, Hunt had to walk directly past the same crosswalk

where he almost hit the decoy. Id. About 40 minutes had passed since Hunt’s

traffic stop, and he had only become angrier. 3 PA 597. As he approached the

crosswalk, Hunt decided that something needed to be done “to protect these

people” from this “disgusting” activity. Id. Once at the crosswalk, Hunt

Page 10 of 38
spontaneously made the decision to enter the crosswalk and begin walking back

and forth to stop traffic, so no more tickets could be issued. Id. Hunt never

informed anyone of his plan or his intentions. Id. He intended to walk back and

forth “to infinity” or until his car repairs were done—whichever came first.

3 PA 600.

Upon approaching the crosswalk, Hunt understood that he could only enter

the crosswalk “when it is safe to cross.” 3 PA 597. He arrived at the crosswalk on

the McDonald’s side. 3 PA 598. When he reached the crosswalk, he

“immediately” stepped into the busy street without looking for any vehicles or

determining whether it was safe to do so. Id. Surveillance video from a local

business captured Hunt’s actions. 3 PA 600. Hunt made three crossings before

being contacted by Sergeant Glenn. 1 PA 28; 3 PA 600.

During Hunt’s first trip, he admitted that cars had to stop suddenly and that

one vehicle could not come to a complete stop without “intruding” into the

crosswalk. 3 PA 598. Donnelly agreed that a vehicle had to hit its brakes “pretty

hard,” causing the car to nosedive. 5 PA 1036. After avoiding the “intruding”

vehicle, Hunt successfully completed his journey to the Pizza Hut side of the street.

3 PA 599. Hunt admitted that he did not make eye contact with any of the drivers.

Id. Upon reaching the Pizza Hut side, Hunt immediately turned around and began

a second trip back towards the McDonald’s. Id. Hunt admitted that he never made

Page 11 of 38
eye contact with any of the other drivers before entering the crosswalk, and that he

made no attempt to ensure that it was safe to cross. Id. According to Hunt, it was

his opinion that it was safe because traffic had already stopped as a result of his

first trip. Id. One motorist yelled profanities at him due to his actions. Id. Upon

reaching the McDonald’s side of the crosswalk, Hunt immediately turned around

and began a third trip across the crosswalk. 3 PA 600. Hunt successfully

completed this third trip. Id. After Hunt’s third trip across the crosswalk, he was

approached by Sergeant Glenn in a marked police car. 3 PA 600–601.

E. SERGEANT GLENN CONTACTS HUNT TO PREVENT HIM

FROM KILLING HIMSELF.

When Hunt left Big O Tires, Sergeant Glenn was parked facing the

crosswalk between the McDonald’s and the Pizza Hut observing traffic. 4 PA 894.

Sergeant Glenn had no knowledge of Officer Driscoll’s prior traffic stop of Hunt

(3 PA 596) and only learned of Hunt’s citation after the arrest. 5 PA 1095. In

other words, Sergeant Glenn had no idea who Hunt was or what he was doing.

Sergeant Glenn began to watch Hunt as he approached the crosswalk for the

first time. 4 PA 896. He personally watched Hunt step into the crosswalk

“without looking for traffic.” 4 PA 896–897. Sergeant Glenn perceived that

Hunt’s actions caused a vehicle “to slam on its brakes and skid to a stop” to avoid

hitting Hunt. 4 PA 897. He found it concerning that Hunt never even looked at the

vehicle. 4 PA 898–899.

Page 12 of 38
 When Hunt reached the Pizza Hut side, Sergeant Glenn continued to watch

as Hunt immediately turned around and began his second trip. 4 PA 899. Sergeant

Glenn again believed that Hunt had unsafely left the curb without looking to see if

he was impeding traffic. Id. According to Sergeant Glenn, the mere fact that Hunt

was not struck by a vehicle does not mean that he acted in a legal and safe manner.

4 PA 899–900. When Hunt reached the McDonald’s side after his second trip, he

immediately turned around and began his third trip across the street—again failing

to make sure that traffic was clear. 4 PA 900. Sergeant Glenn noticed that traffic

was beginning to back up. Id.

Due to Hunt’s unusual behavior, Sergeant Glenn became concerned that

Hunt was either committing a crime or that he was impaired, on drugs, or had a

mental deficiency. Id. He was concerned that Hunt might get hurt. 4 PA 900.

Sergeant Glenn activated his emergency overhead lights and drove to Hunt’s

location. Id.

F. SERGEANT GLENN ARRESTS HUNT.

According to Hunt, Sergeant Glenn’s arrival prevented him from continuing

to cross the street to “infinity.” 3 PA 600. Sergeant Glenn pulled into a parking lot

and ordered Hunt to the front of his vehicle. Id. Sergeant Glenn’s primary intent

was to make sure Hunt was okay and stop him “from getting killed.” 4 PA 901.

Page 13 of 38
 Hunt immediately recognized Sergeant Glenn as a police officer. 3 PA 601.

Hunt admitted that Sergeant Glenn ordered him several times to “step over here”

and that he verbally refused to comply with the command. Id. According to Hunt,

he was not sure if Sergeant Glenn’s statement was an order or a request. Id.

However, Hunt agreed that when he asked “why?” Sergeant Glenn told him

“because I told you to.” Id. At that point, Hunt understood that he was being

ordered to walk towards Sergeant Glenn. Id. Hunt admitted that he refused to

comply with this lawful order. Id. It was Hunt’s opinion that he did not have to

comply with Sergeant’s Glenn’s order until Sergeant Glenn “justified himself.” Id.

According to Hunt, if Sergeant Glenn had “justified” himself, he would have

obeyed the order. Id. Hunt agreed that he verbally told Sergeant Glenn that he

was refusing to comply with any of his orders. Id.

After Hunt informed Sergeant Glenn that he was not going to comply with

his orders, Sergeant Glenn began walking towards him. Id. Hunt admitted that

Sergeant Glenn was empty-handed and that he was walking in a normal manner.

Id. When Sergeant Glenn reached Hunt, he grabbed Hunt’s left arm and, for safety

reasons, began pulling him away from the busy street. 3 PA 602. In response,

Hunt repeatedly stated, “[P]lease step away from me.” Id.

Hunt was resisting Sergeant Glenn because he believed Sergeant Glenn did

not have the right to touch him. Id. Once surrounded by officers, Hunt began

Page 14 of 38
telling the officers to “step away.” Id. It eventually took three officers to handcuff

the resisting Hunt. Id. Hunt admitted that all of the force used against him was

depicted in surveillance video. 3 PA 604. Hunt also agreed that he was never

punched or kicked. Id. Sergeant Glenn’s force did not cause Hunt any physical

injuries. 3 PA 605. After handcuffing, no further force was used against Hunt.

3 PA 604. Importantly, Hunt admitted that Sergeant Glenn did not arrest him for

allegedly protesting the Activity. 3 PA 614–615.

G. THE AFTERMATH.

Prior to being placed in the patrol car, Hunt complained about the tightness

of his handcuffs, which were loosened. Hunt was then transported to jail.

1 PA 28. After Hunt was in Sergeant Glenn’s car and ready for transport, Officer

Driscoll arrived on scene and recognized Hunt. She informed Sergeant Glenn that

she had given Hunt a citation earlier. Sergeant Glenn filled out the necessary

paperwork and booked Hunt for: (1) violating the right of way in a crosswalk

pursuant to NRS 484B.283; and (2) resisting arrest pursuant to NRS 199.280.

1 PA 25–27.

H. THE CITATION AND THE MUNICIPAL COURT CASE.

The criminal case was submitted to Boulder City District Attorney David

Olsen. 5 PA 984. After receiving the case, Olsen reviewed the police reports and

Sergeant Glenn’s dash cam video and concluded that probable cause existed for the

Page 15 of 38
arrest. 5 PA 984–986. Olsen filed a criminal complaint on June 13, 2016.

1 PA 32–33. Later, Olsen learned of additional NHP evidence and dismissed the

criminal complaint, so he could review the additional evidence. 5 PA 995–996.

On May 30, 2017, Hunt filed his federal lawsuit. 2 PA 331. Upon receiving

Hunt’s federal complaint, Olsen was “reminded” that he had not yet filed the new

complaint against Hunt. 6 PA 1360. As a result, on June 5, 2017, Olsen re-filed

the criminal charges to avoid the running of the statute of limitations. 5 PA 997.

The amended criminal complaint combined Hunt’s traffic violations (i.e., the

citations issued by Officer Driscoll) and the following charges involving Sergeant

Glenn: (1) impeding the ability of a driver to yield pursuant to NRS 484B.283(2);

(2) obstructing a public officer in violation of NRS 197.190; and (3) resisting a

public officer pursuant to NRS 199.280. 3 PA 710–712. Hunt made several

unsuccessful attempts in the municipal court proceeding to dismiss the criminal

charges. 2 PA 329–372 (Hunt’s motion to dismiss for prosecutorial misconduct);

2 PA 375–380 (first supplement to Hunt’s motion to dismiss for prosecutorial

misconduct); 2 PA 392–394 (second supplement); 2 PA 395–426 (third

supplement); 2 PA 427–495 (fourth supplement); 3 PA 504–509 (order denying

Hunt’s motion to dismiss for prosecutorial misconduct).

Page 16 of 38
 I. HUNT’S CRIMINAL CONVICTION.

On August 14, 2018, a pro-tem Municipal Judge found Hunt guilty on the

four remaining charges.1 1 PA 6; 7 PA 1503. Hunt was sentenced to 140 hours of

community service. Id. The same day, Hunt filed a notice of appeal to the Eighth

Judicial District Court. Id.

J. THE FEDERAL DISTRICT COURT’S SUMMARY

JUDGMENT ORDER.

On September 6, 2018, the Federal District Court issued its order granting

summary judgment in favor of Sergeant Glenn and Boulder City. 6 PA 1429–

1437. The Federal District Court found, in relevant part, that Hunt’s federal law

claims against Sergeant Glenn failed as a matter of law because probable cause

existed to arrest Hunt, and that the arrest could not be considered a First

Amendment retaliatory arrest because Sergeant Glenn did not realize that Hunt was

allegedly engaging in a First Amendment activity until after the arrest. 6 PA

1435–1436. In fact, Hunt explained at the time of his arrest that he was “going for

a walk.” 6 PA 1431. With respect to Hunt’s claims asserted against Boulder City

in the federal case, he conceded that he did not have sufficient supporting

evidence, such that the claims were dismissed. 6 PA 1434. These dismissed

claims against Boulder City included: (1) First Amendment retaliation;

1
Count 2, failure to place vehicle registration in vehicle pursuant to NRS 482.255,
was dismissed before trial. 1 PA 6; 7 PA 1502.
Page 17 of 38
(2) violation of the NEVADA CONSTITUTION; (3) malicious prosecution; (4) abuse of

process; (5) false arrest and imprisonment; (6) excessive force; (7) assault and

battery; (8) intentional infliction of emotional distress; (9) negligent infliction of

emotional distress; (10) negligence; (11) respondeat superior; and (12) negligent

hiring and supervision. 6 PA 1431–1432. The Federal District Court specifically

concluded that Sergeant Glenn “did not realize that plaintiff was engaging in First

Amendment activities until he had already arrested plaintiff.” 6 PA 1435. As

such, Sergeant Glenn’s actions “could not have been motivated by an intent to

silence plaintiff.” Id.

K. HUNT’S STATE DISTRICT COURT APPEAL FROM THE

MUNICIPAL COURT CONVICTION.

A month after lodging his appeal with the District Court, and two weeks

after the Federal District Court found in favor of Boulder City and Sergeant Glenn,

Hunt filed yet another motion to dismiss, alleging vindictive prosecution based on

the argument that Boulder City’s decision to add additional charges to the second

criminal complaint was motivated by Hunt filing his federal lawsuit, and on the

secondary basis that the obstruction charge was brought in violation of Hunt’s First

Amendment rights.2 6 PA 1409–1428.

2
In doing so, Hunt took significant liberties with the Federal District Court’s order
granting summary judgment. Cf. 6 PA 1429–1437; 6 PA 1411–1412.
Page 18 of 38
 Three weeks later, Boulder City opposed the motion, arguing that the second

criminal complaint was filed after Olsen had time to perform a “thorough review”

of all available evidence and after receipt of Hunt’s federal lawsuit “reminded”

Olsen that the second criminal complaint had not yet been filed. 7 PA 1501–1507.

Applying Supreme Court case law, the City argued that Olsen’s decision to add

additional charges was not an “attempt to increase charges after a conviction for a

misdemeanor or petty offense,” was not brought against a “[d]efendant who ha[d]

successfully appealed [his] first conviction and, after retrial and a second

conviction, receive[d] a harsher penalty than originally imposed,” and was not “[a]

pre-trial threat by the prosecution to increase charges [because] the defendant

refuse[d] to plead guilty and insist[ed] on a jury trial.” 7 PA 1503 (citing Thigpen

v. Roberts, 468 U.S. 26 (1984); Texas v. McCullough, 475 U.S. 134 (1986); United

States v. Goodwin, 457 U.S. 368 (1982)). Further, relying on the text of the

Federal District Court’s order granting summary judgment, the City argued that

there was no First Amendment violation by Boulder City or Sergeant Glenn.

7 PA 1505–1506.

In reply, Hunt argued that the purported “mere appearance” of vindictive

prosecution should shift the burden to Boulder City to prove that the second

criminal complaint was not brought vindictively. 7 PA 1524–1534. Hunt further

argued that the chain of custody regarding the evidence Olsen reviewed prior to

Page 19 of 38
filing the second criminal complaint demonstrated that Olsen could have reviewed

the evidence and amended the criminal charges earlier. Id.

Shortly after Hunt filed his motion to dismiss, Boulder City filed a motion to

set arraignment; initial appearance; and for trial setting, consistent with Nevada

law. 7 PA 1487–1491. Boulder City also pointed out that the District Court had

engaged in an ex parte communication with Hunt’s counsel. Id. Hunt responded

by claiming that nothing “nefarious” was discussed in the ex parte communication.

7 PA 1674–1676. The District Court never ruled on Boulder City’s motion.

7 PA 1681–1682.

On October 29, 2018, without a hearing, the District Court issued a minute

order granting Hunt’s motion to dismiss for vindictive prosecution and on First

Amendment grounds. 7 PA 1677–1678. The District Court concluded that

Boulder City “brought criminal charges against [Hunt] 6 days after [Hunt]

exercised his statutory and constitutional rights to file a federal civil rights lawsuit

against [Boulder City].” 7 PA 1677 (citing U.S. v. Jenkins, 504 F.3d 694, 699

(9th Cir. 2008)). The District Court also dismissed the obstruction charge against

Hunt on First Amendment grounds, concluding that Boulder City “knew that

[Hunt] was protesting and still charged him with [o]bstruction even though the

police previous to this incident sent out a press release for people to use the

crosswalk during the [Activity]” and that “[t]he obstruction charge is an

Page 20 of 38
abridgment of free speech and must be dismissed.” 7 PA 1678. The District Court

never issued a written order dismissing the charges against Hunt. 7 PA 1681–

1682. Instead, the District Court issued a form order statistically closing the case.3

7 PA 1679–1680. Boulder City now seeks extraordinary relief from this Court to

vacate the District Court’s minute order, and require the District Court to hold the

trial de novo, as required by NRS 5.073(1) and NRS 266.595.

VII. LEGAL ARGUMENT

A. THE DISTRICT COURT WAS WITHOUT AUTHORITY TO

GRANT HUNT’S MOTION TO DISMISS FOR VINDICTIVE
PROSECUTION AND ON FIRST AMENDMENT GROUNDS IN
A PRETRIAL PROCEEDING.

The District Court was without authority to grant Hunt’s motion to dismiss

for vindictive prosecution and on First Amendment grounds in a pretrial

proceeding. Specifically, Boulder City asks this Court to enforce NRS 5.073(1),

which entitled Boulder City to a “trial anew” in the District Court because the

Boulder City Municipal Court is not a court of record. See NRS 5.010(2). Instead,

the District Court, without a hearing, construed key facts in favor of Hunt on a

motion to dismiss. 7 PA 1677–1678.

3
The order to statistically close the case does not create finality for purposes of
determining the appealability of the dismissal order. See Brown v. MHC
Stagecoach, 129 Nev. 343, 301 P.3d 850 (2013).
Page 21 of 38
 1. Boulder City Is Entitled to a “Trial Anew.”

Boulder City is entitled to a “trial anew.” According to NRS 5.010(2),4 the

Boulder City Municipal Court is not a court of record since there is no ordinance

designating this municipal court as a court of record. Since the Boulder City

Municipal Court is not a court of record, once Hunt filed his notice of appeal,

Boulder City was entitled to a “trial anew” according to NRS 5.073(1)5 and

NRS 266.595.6 The District Court simply failed to abide by the plain language of

these statutes, which limited the District Court’s authority to act. See A.F. Constr.

Co. v. Virgin River Casino, 118 Nev. 699, 703, 56 P.3d 887, 890 (2002) (when

construing statutes, this Court “first looks to the plain language of the statute”);

Taylor Constr. Co. v. Hilton Hotels Corp., 100 Nev. 207, 209, 678 P.2d 1152,

1153 (1984) (appellate court’s ability to entertain an appeal is governed by statute

4
NRS 5.010 General requirements for court; designation as court of record.
There must be in each city a municipal court presided over by a municipal judge.
The municipal court:…2. May by ordinance be designated as a court of record.
5
NRS 5.073 Conformity of practice and proceedings to those of justice
courts; exception; imposition and collection of fees.
1. The practice and proceedings in the municipal court must conform, as
nearly as practicable, to the practice and proceedings of justice courts in similar
cases. An appeal perfected transfers the action to the district court for trial anew,
unless the municipal court is designated as a court of record as provided in
NRS 5.010. The municipal court must be treated and considered as a justice court
whenever the proceedings thereof are called into question.
6
NRS 266.595 Appeals. Appeals to the district court may be taken from any
final judgment of the municipal court in accordance with the provisions of
NRS 5.073.
Page 22 of 38
or court rule); NRS 34.020(2) (“The writ shall be granted in all cases when an

inferior tribunal, board or officer, exercising judicial functions, has exceeded the

jurisdiction of such tribunal, board or officer….”). Therefore, on the basis of the

plain language of NRS 5.073(1) and NRS 266.595, this Court should vacate the

District Court’s minute order and order the District Court to hold a trial de novo.

2. The District Court Was Without Authority to Construe

Facts in Favor of Hunt, as the Moving Party, to Dismiss the
Misdemeanor Charges Against Him.

The District Court was without authority to construe facts in favor of Hunt,

as the moving party, to dismiss the misdemeanor charges against him. A “trial” is

“[a] formal judicial examination of evidence and determination of legal claims in

an adversary proceeding.” BLACK’S LAW DICTIONARY, 1735 (10th ed. 2014). As a

general matter, a motion to dismiss is not an appropriate vehicle to adjudicate the

merits of a case. See Taylor v. Barringer, 75 Nev. 409, 344 P.2d 676 (1959).

Moreover, NRS 174.135 (Hearing on motion) reserves for trial issues of fact.

Subsection 2 of NRS 174.135 states, “An issue of fact shall be tried by a jury if a

jury trial is required under the Constitution of the United States or of the State of

Nevada or by statute.” Likewise, Subsection 3 of this statute confirms, “All other

issues of fact shall be determined by the court with or without a jury or on

affidavits or in such other manner as the court may direct.” (emphasis added).

But, the District Court did not direct any “other manner” that the factual issues

Page 23 of 38
should be resolved, such that the District Court’s determination of factual issues in

dismissal briefing was a legal nullity. Very simply, factual issues cannot be

determined outside of trial, unless the court has placed the parties on notice.

As the Court can see, the record in this case spans nearly 1,700 pages. Yet,

the District Court focused on only a select few items of evidence, and then

erroneously construed that evidence in favor of Hunt, as the moving party, to

dismiss the misdemeanor charges against him. 7 PA 1677–1678. Cf. LaMantia v.

Redisi, 118 Nev. 27, 29, 38 P.3d 877, 879 (2002) (construing facts in favor of non-

moving party in summary judgment proceedings). Therefore, this Court should

vacate the District Court’s minute order and require the District Court to hold the

trial de novo.

B. THE DISTRICT COURT WAS WITHOUT AUTHORITY TO

MAKE A PRETRIAL DETERMINATION OF VINDICTIVE
PROSECUTION.

The District Court was also without authority to make a pretrial

determination of vindictive prosecution. The District Court erroneously relied

upon Ninth Circuit case law to conclude that Boulder City’s prosecution of Hunt

was vindictive. Id. (citing U.S. v. Jenkins, 504 F.3d 694 (9th Cir. 2007)). Yet,

NRS 174.085(5)(b) and (6) expressly allow the prosecution one chance to dismiss

a misdemeanor complaint without prejudice, with the right to refile. See Sheriff,

Washoe County v. Marcus, 116 Nev. 188, 191, 995 P.2d 1016, 1017 (2000). Thus,

Page 24 of 38
the District Court was without authority to dismiss the new criminal charges

against Hunt on the basis of alleged vindictive prosecution.

1. NRS 174.085(5)(b) and (6) Govern Boulder City’s Ability to

Refile Misdemeanor Criminal Charges, Not Ninth Circuit
Case Law.

NRS 174.085(5)(b)7 and (6)8 govern Boulder City’s ability to refile

misdemeanor criminal charges, not Ninth Circuit case law. These statutes, relevant

7
NRS 174.085 Proceedings not constituting acquittal; effect of acquittal on
merits; proceedings constituting bar to another prosecution; retrial after
discharge of jury; effect of voluntary dismissal.
* * * *
5. The prosecuting attorney, in a case that the prosecuting attorney has initiated,
may voluntarily dismiss a complaint:
(a) Before a preliminary hearing if the crime with which the defendant is
charged is a felony or gross misdemeanor; or
(b) Before trial if the crime with which the defendant is charged is a
misdemeanor,
 without prejudice to the right to file another complaint, unless the State of
Nevada has previously filed a complaint against the defendant which was
dismissed at the request of the prosecuting attorney. After the dismissal, the court
shall order the defendant released from custody or, if the defendant is released on
bail, exonerate the obligors and release any bail.
8
6. If a prosecuting attorney files a subsequent complaint after a complaint
concerning the same matter has been filed and dismissed against the defendant:
(a) The case must be assigned to the same judge to whom the initial complaint
was assigned; and
(b) A court shall not issue a warrant for the arrest of a defendant who was
released from custody pursuant to subsection 5 or require a defendant whose bail
has been exonerated pursuant to subsection 5 to give bail unless the defendant does
Page 25 of 38
to misdemeanor charges, do not carry the more strict conditions relevant to

vindictive prosecution. In fact, this Court has reviewed these statutes and held:

The State contends that the district court erred in granting Marcus’s
writ of habeas corpus because the legislature amended
NRS 174.085(5) in order to grant Nevada prosecutors one chance to
dismiss a misdemeanor complaint and later refile without prejudice.
Further, the State argues that because of the legislative power to enact
and modify criminal procedure, any common law requirement that the
prosecution show due diligence and good faith before dismissing
criminal charges is preempted. We agree.

Marcus, 116 Nev. at 190–191, 995 P.2d at 1017. This Court went on to explain

that the good cause requirement for refiling did not extend to misdemeanors. Id.,

116 Nev. at 192–193, 995 P.2d at 1019. Thus, under these statutes and Marcus,

Boulder City did not need to justify the reason for its refiling of the misdemeanor

charges against Hunt, much less satisfy the heightened Ninth Circuit test to

disprove vindictive prosecution. As such, the District Court was without authority

to dismiss the misdemeanor charges against Hunt in summary proceedings.

Even if the Court were to determine that the federal vindictive prosecution

test applies, U.S. v. Jenkins, 504 F.3d 694 (9th Cir. 2007) is not the beginning and

the end of the analysis. See, e.g., U.S. v. Andrews, 612 F.2d 235, 238 (6th Cir.

1979) (rejecting “appearance of vindictiveness” test). Notably, Jenkins was

concerned with due process rights of criminal defendants for refiled criminal

not appear in court in response to a properly issued summons in connection with

the complaint.
Page 26 of 38
charges. Id. at 699. But, this Court concluded in Marcus that due process is not

violated for refiling misdemeanor charges in light of the enabling language in

NRS 174.085. Id., 116 Nev. at 194, 995 P.2d at 1019–1020.

Further, timing alone of the refiled charges with respect to Hunt’s filing of

his civil rights complaint in federal court is insufficient to presume vindictiveness.

See U.S. v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir. 1982) (“[T]he link of

vindictiveness cannot be inferred simply because the prosecutor’s actions followed

the exercise of a right.”). And, when a vindictiveness claim pertains to pretrial

charging decisions, the U.S. Supreme Court has urged deference to the prosecutor.

See U.S. v. Kent, 649 F.3d 906, 913 (9th Cir. 2011) (citing U.S. v. Goodwin,

457 U.S. 368, 381, 102 S.Ct. 2485 (1982)).

In any event, the District Court was without authority to dismiss the original

two charges against Hunt: (1) violating the right of way in a crosswalk pursuant to

NRS 484B.283; and (2) resisting arrest pursuant to NRS 199.280. 1 PA 25–27. As

such, the District Court was without authority to impose upon Boulder City a

foreign and unnecessarily heightened vindictive prosecution test.

2. Once Again, the District Court Was Without Authority to

Construe Facts in Favor of Hunt, as the Moving Party, to
Conclude that He Was Vindictively Prosecuted.

Once again, the District Court was without authority to construe facts in

favor of Hunt, as the moving party, to conclude that he was vindictively

Page 27 of 38
prosecuted. As outlined, NRS 174.135 (Hearing on motion) reserves for trial

issues of fact. Notably, the District Court relied alone upon the timing of the

refiled charges against Hunt, with respect to his civil rights complaint, as a factual

predicate to make a finding of vindictive prosecution. 7 PA 1677–1678. Not only

was the District Court’s factual determination in a dismissal proceeding without a

hearing legally improper, but the timing component alone does not rise to

vindictive prosecution. See Gallegos-Curiel, 681 F.2d at 1168. On this additional

basis, Boulder City, likewise, asks this Court to vacate the District Court’s minute

order and require the District Court to hold the trial de novo.

C. THE DISTRICT COURT WAS ALSO WITHOUT AUTHORITY

TO MAKE A PRETRIAL DETERMINATION OF HUNT’S
FIRST AMENDMENT RIGHTS IN THE CONTEXT OF THE
MISDEMEANOR CRIMINAL CHARGES.

The District Court was also without authority to make a pretrial

determination of Hunt’s First Amendment rights in the context of the misdemeanor

criminal charges, particularly since the arrest was made with probable cause.

Aside from the District Court’s error in construing facts in favor of Hunt in a

dismissal proceeding without a hearing, the District Court was also without

authority to conclude that the First Amendment somehow shielded Hunt from a

misdemeanor criminal obstruction charge. 7 PA 1678. Cf. U.S. v. Freeman, 761

F.2d 549, 552 (9th Cir. 1985). In other words, Hunt’s criminal act itself cannot be

defended by a broad recourse to the First Amendment.

Page 28 of 38
 1. The First Amendment Is Not an Absolute Defense to Hunt’s
Criminal Acts, Including Obstruction, Particularly Since
Probable Cause Supports the Arrest for Those Acts.

The First Amendment is not an absolute defense to Hunt’s criminal acts,

including obstruction, especially when, as here, probable cause supports the arrest

for those criminal acts. The District Court concluded in its minute order that the

obstruction charge against Hunt was dismissed because he was allegedly

exercising his First Amendment rights while walking back and forth in the

crosswalk. 7 PA 1678. But, a First Amendment defense to a criminal act is not

absolute. See Freeman, 761 F.2d at 552. This is particularly true “where speech

becomes an integral part of the crime,” which means that “a First Amendment

defense is foreclosed even if the prosecution rests on words alone.” Id. This Court

has reached the same conclusion in Ford v. State, 127 Nev. 608, 619, 262 P.3d

1123, 1130 (2011) (“Although First Amendment speech protections are far-

reaching, there are limits. Speech integral to criminal conduct, such as fighting

words, threats, and solicitations, remain categorically outside its protection.”)

(citing United States v. White, 610 F.3d 956, 960 (7th Cir. 2010)); see also Rice v.

Paladin Enters., Inc., 128 F.3d 233, 244 (4th Cir. 1997) (“Were the First

Amendment to bar or to limit government regulation of such ‘speech brigaded with

action,’ the government would be powerless to protect the public from countless of

even the most pernicious criminal acts and civil wrongs.”) (citations omitted).

Page 29 of 38
Thus, the District Court was without authority to conclude that the First

Amendment provided an absolute defense to Hunt’s criminal acts, including

obstruction.

Additionally, given the Federal District Court’s finding that probable cause

supported Hunt’s arrest, 6 PA 1435–1436 (finding that Hunt’s actions “gave

officer Glenn probable cause to arrest [Hunt]”), Hunt failed to demonstrate the

necessary “no-probable-cause” requirement for pleading and proving a violation of

his First Amendment rights. See Nieves v. Bartlett, 587 U.S. –—, –—, 2019 WL

2257157, at *6 (U.S. May 28, 2019) (“The plaintiff pressing a [First Amendment]

retaliatory arrest claim must plead and prove the absence of probable cause for the

arrest.”) (emphasis added); id. at *8 (“The presence of probable cause should

generally defeat a First Amendment retaliatory arrest claim.”); see also Lozman v.

City of Riviera Beach, 585 U.S –—, –—, 138 S. Ct. 1945, 1956–1957 (Thomas, J.,

dissenting) (“[P]laintiffs bringing a First Amendment retaliatory-arrest claim must

plead and prove an absence of probable cause.”). Thus, in determining that Hunt

was exercising his First Amendment rights by walking through the crosswalk “to

infinity,” the District Court erred in determining that Hunt’s First Amendment

defense overcame the probable cause that supported his arrest and, thus, this Court

should exercise its discretion to vacate the District Court’s minute order and

require the District Court to hold the trial de novo.

Page 30 of 38
 2. The District Court Was Once Again Without Authority to
Construe the Facts in Favor of Hunt, as the Moving Party,
to Make Determinations Regarding His First Amendment
Defense.

The District Court was once again without authority to construe the facts in

favor of Hunt, as the moving party, to make determinations regarding his First

Amendment defense. In its ruling, the District Court found that Hunt was

“asserting” his First Amendment rights by walking back and forth in the crosswalk.

7 PA 1678. But, this conclusion is at odds with the Federal District Court’s

summary judgment order that Hunt presented as the factual predicate for his

motion to dismiss. 6 PA 1429–1437. The Federal District Court specifically

concluded that Sergeant Glenn’s “actions could not have been motivated by an

intent to silence plaintiff.” 6 PA 1435. At a very minimum, the District Court

should have reserved for trial the factual issue of Boulder City’s knowledge of

Hunt’s intention. Yet, the record suggests that Hunt’s entire First Amendment

defense was created ad hoc for purposes of litigation. In fact, Hunt explained in

the federal litigation that he was just “going for a walk.” 6 PA 1431. And, he

conceded that he did not have any evidence to support any of his claims asserted

against Boulder City in the federal case, including First Amendment retaliation.

6 PA 1434. The Ninth Circuit has explained that under NRS 171.123(3), “police

officers may detain individuals reasonably suspected of criminal behavior in order

to ‘ascertain the person’s identity and the suspicious circumstances.’” Tsao v.

Page 31 of 38
Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012). The Ninth Circuit also

clarified that the analysis for obstruction under NRS 197.190 is not limited to the

statements in the declaration of arrest, but can be drawn from the totality of the

circumstances. Id. at 1146–1147. Certainly, Hunt’s belligerence in responding to

Sergeant Glenn’s investigation, at a minimum, creates a factual issue for trial.

See 3 PA 601, 602. Thus, this Court has yet another basis to grant Boulder City’s

requested relief to vacate the District Court’s minute order and require the District

Court to hold the trial de novo.

D. THE DISTRICT COURT WAS ALSO WITHOUT AUTHORITY

TO MAKE CONTRARY DETERMINATIONS BASED UPON
PRINCIPLES OF ESTOPPEL AND PRECLUSION.

The District Court was also without authority to make contrary

determinations based upon principles of estoppel and preclusion. The District

Court largely drew its factual findings from a summary judgment order issued in

the Federal District Court. 6 PA 1429–1437. Ironically, the summary judgment

order was entered in favor of Boulder City, yet the District Court ignored key

portions of the order that prohibited the dismissal of the misdemeanor charges

against Hunt. Id. In fact, based upon principles of estoppel and preclusion, the

District Court was without authority to reach conclusions contrary to the summary

judgment order. See State v. Bennett, 119 Nev. 589, 605, 81 P.3d 1, 12 (2003).

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 As discussed, the District Court did not completely embrace the Federal

District Court’s summary judgment order entered in favor of Boulder City.

7 PA 1677–1678. The District Court selected only portions of the summary

judgment order to grant Hunt’s motion to dismiss in this criminal case. But, as a

matter of law, Hunt was bound to the summary judgment order based on principles

of estoppel and preclusion. In other words, the resolution of Hunt’s same claims in

the federal litigation bar him from arguing differently than the Federal District

Court’s ruling favoring Boulder City. See Edwards v. Ghandour, 123 Nev. 105,

111, 159 P.3d 1086, 1090 (2007), rejected on other grounds by Five Star Capital

Corp. v. Ruby, 124 Nev. 1048, 1051, 1053–1054, 194 P.3d 709, 712–713 (2008).

In Edwards, this Court held, “We agree with the majority of jurisdictions that an

appeal has no effect on a judgment’s finality for purposes of claim preclusion.” Id.

This Court elaborated on the reasons for this holding: “We agree that the purpose

of claim preclusion would be compromised if a judgment, subject to an appeal, lost

its preclusive effect. Any errors in a judgment are best addressed in the context of

an appeal, during which the judgment can be carefully considered. And judicial

efficiency would be jeopardized by a rule allowing any number of actions raising

the same claims against the same parties to proceed and, ultimately, to be each

challenged by way of an appeal.” Id., 123 Nev. at 117, 159 P.3d at 1094. Thus,

the District Court was bound by the rulings in the summary judgment order, and

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was not at liberty to avoid its binding effect. See Cowgill v. Raymark Indus., Inc.,

832 F.2d 798, 802–803 (3d Cir. 1987). Hunt also cannot relitigate the same issues

in this case that were previously resolved in the federal litigation. See Garcia v.

Prudential Ins. Co. of Am., 129 Nev. 15, 20, 293 P.3d 869, 872 (2013) (applying

preclusion principles from federal district court decision to Nevada state law case);

see also White v. U.S., 371 F.3d 900, 902 (7th Cir. 2004) (citations omitted);

see also Olney v. U.S., 433 F.2d 161, 162 (9th Cir. 1970) (citation omitted).

Therefore, the Court should, alternatively, grant Boulder City’s requested relief in

this original proceeding based upon estoppel and preclusion.

VIII. CONCLUSION

In summary, the Court should vacate the District Court’s minute order

dismissing the misdemeanor charges against Hunt, and require the District Court to

hold the trial de novo, as required by NRS 5.073(1) and NRS 266.595, based upon

the following reasons: (1) the District Court was without authority to grant Hunt’s

motion to dismiss for vindictive prosecution and on First Amendment grounds in a

pretrial proceeding; (2) the District Court was also without authority to make a

pretrial determination of vindictive prosecution; (3) the District Court was also

without authority to make a pretrial determination of Hunt’s First Amendment

rights in the context of the misdemeanor criminal charges; and (4) the District

Court was also without authority to make contrary determinations based upon

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principles of estoppel and preclusion. For these reasons, Boulder City respectfully

requests that this Court grant the requested relief.

Dated this 19th day of June, 2019.

MARQUIS AURBACH COFFING

By /s/ Micah S. Echols

Micah S. Echols, Esq.
Nevada Bar No. 8437
Tom W. Stewart, Esq.
Nevada Bar No. 14280
10001 Park Run Drive
Las Vegas, Nevada 89145
Attorneys for Petitioner,
City of Boulder City

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 CERTIFICATE OF COMPLIANCE

I hereby certify that I have read this petition, and to the best of my

knowledge, information and belief, it is not frivolous or interposed for any

improper purpose. I further certify that this petition complies with all applicable

Nevada Rules of Appellate Procedure, in particular NRAP 28(e)(1), which requires

every assertion in the brief regarding matters in the record to be supported by a

reference to the page and volume number, if any, of the transcript or appendix

where the matter relied on is to be found. I understand that I may be subject to

sanctions in the event that the accompanying brief is not in conformity with the

requirements of the Nevada Rules of Appellate Procedure.

Dated this 19th day of June, 2019.

MARQUIS AURBACH COFFING

By /s/ Micah S. Echols

Micah S. Echols, Esq.
Nevada Bar No. 8437
Tom W. Stewart, Esq.
Nevada Bar No. 14280
10001 Park Run Drive
Las Vegas, Nevada 89145
Attorneys for Petitioner,
City of Boulder City

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 CERTIFICATE OF SERVICE

I hereby certify that the foregoing PETITION FOR WRIT OF

CERTIORARI OR MANDAMUS and PETITIONER’S APPENDIX,

VOLUMES 1–7 were filed electronically with the Nevada Supreme Court on the

19th day of June, 2019. Electronic Service of the foregoing document shall be

made in accordance with the Master Service List as follows:

N/A

I further certify that I served a copy of these documents by mailing true and

correct copies thereof, postage prepaid, addressed to:

Honorable Richard F. Scotti, District Court Judge

Eighth Judicial District Court,
Department 2
200 Lewis Avenue
Las Vegas, Nevada 89155
Respondents

Stephen P. Stubbs, Esq.

626 South Third Street
Las Vegas, Nevada 89101
Attorney for Real Party in Interest, John Hunt

/s/ Leah Dell

Leah Dell, an employee of
Marquis Aurbach Coffing

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