Judges in multiple recent cases have ordered the release of defendants on electronic monitoring, a program run by the Metropolitan Police Department, only to have police refuse to follow the decisions.
The conflict is now before the Nevada Supreme Court, with pending challenges filed by both Metro and the Clark County public defender’s office. Metro faces the possibility of being held in contempt of court in at least one case.
All sides agree that the dispute raises separation of powers issues. To some, it also reflects a broader, troubling pattern of the executive branch overstepping into territory that belongs to the judiciary.
“They think they found some kind of cute argument that allows them essentially to overrule judges,” said public defender David Westbrook during one hearing. “And we’re in a very dangerous time in our country’s history where members of the executive branch think they have the ability to override the will of judges who have assessed the situation and exercised judicial discretion.”
Metro says it has authority under state law to decide whether putting someone on electronic monitoring poses an unreasonable risk to public safety.
Some of the cases at issue deal with allegations of domestic violence, vehicle theft and attempted murder. One defendant is accused of shooting at a police officer. Around 450 people are on electronic monitoring at any given time, according to Metro, and only a small number of cases are in dispute.
The department suggests it is judges who are infringing on their turf, not the other way around.
“The Justice Court of the Las Vegas Township has the authority to release dangerous people into our community,” Metro said in a statement. “However, (Sheriff Kevin McMahill) will not violate the law to assist those few judges who seek to use LVMPD’s electronic monitoring program in disregard of public safety and the safety of the dedicated LVMPD corrections officers who administer the electronic monitoring program.”
Las Vegas Justice Court Chief Judge Melisa De La Garza said judges assess community safety and the likelihood a defendant will return to court when considering that person’s release. In making a decision about release, she said, judges must also follow the law, examine a pretrial risk assessment and hear arguments from attorneys.
“To have somebody veto our decision without having all of that information is very concerning,” De La Garza said. “It raises concerns not only of separation of powers, but of due process.”
Medium and high-level electronic monitoring are programs for pretrial defendants that allow a defendant to live at home. Under high-level electronic monitoring, a defendant can only leave their house for things like school or work, but medium-level monitoring entails looser restrictions, according to the department. Metro tracks defendants with an electronic ankle bracelet.
Debate between public defender, Metro
Westbrook argued in a Nevada Supreme Court filing that Metro is unconstitutionally and “unlawfully exercising a judicial function” by determining inmates’ custody status. When they do so, defendants have no mechanism they can use to challenge Metro’s decision, he said.
Metro staff notify the court that they are rejecting the order with a letter sent directly to the judge, often several weeks after the original release order, resulting in extra jail time for the defendant, Westbrook wrote in the filing.
Michael Dickerson, an attorney for Metro, said in an interview that police and the courts have a “complementary relationship.”
After court approval, Metro must determine whether someone is appropriate for the electronic monitoring program, he said. Only about 14 people have been rejected so far this year, and half have only been denied for medium-level monitoring but would be eligible for high-level supervision, according to the attorney.
“If the sheriff has determined that electronic supervision of a particular individual poses an unreasonable risk to public safety, the court does not have the power to tell the sheriff: ‘Violate the law,’” said Dickerson.
Metro’s position is not that they are refusing to release someone, he said, simply that they do not want a defendant on their program.
“We’re not telling the court that they can’t do x, y or z or that this person has to stay in jail,” Dickerson said. “All we’re telling them is what we can’t do. We can’t put the person out on our program.”
Once a judge receives Metro’s notice that someone is not approved, he said, the court provides it to parties and sets the matter for a hearing, satisfying due process requirements.
Westbrook said in an interview that Metro’s position is not supported by the law.
“What they’re doing now violates people’s rights,” he said. “They are exercising authority they don’t have to keep people imprisoned without due process, against a judicial order.”
‘Call me crazy, but I’m the judge’
The clash has perhaps been most severe in the case of Joshua Sanchez-Lopez.
Las Vegas Justice of the Peace Eric Goodman set bail at $25,000 on Jan. 13 for Sanchez-Lopez, who faces a count of grand larceny of a motor vehicle, according to court records. Goodman also ordered that he be placed on high-level electronic monitoring if he posted bail.
Though Sanchez-Lopez posted bond on Jan. 24, he was still in custody by Feb. 5 and Goodman held another hearing to ensure he would be released to electronic monitoring.
Goodman gave attorneys a letter that house arrest Acting Lt. Michael Gutierrez had sent to him, according to court records.
The letter informed the judge that McMahill had decided that electronically supervising Sanchez-Lopez “poses an unreasonable risk to public safety,” according to a copy filed in court papers.
Sanchez-Lopez had shown an unwillingness to comply with electronic monitoring in 2020 by selling drugs from his house, having access to a gun and fleeing from police, the letter said.
Court records indicate one case related to the prior incident was dropped by prosecutors and another was dismissed based on negotiations in an additional case.
Goodman on Feb. 5 issued a second order that Sanchez-Lopez be released to electronic monitoring by the next day. Metro responded with an emergency motion to pause or void the release order.
When Goodman held another hearing in Sanchez-Lopez’s case on Feb. 9, the defendant was still in custody.
The judge was not pleased.
“Call me crazy, but I’m the judge,” said Goodman, according to a transcript. “I would like to think that my orders are actual orders.”
Metro has disputed in a court filing that it overruled a court order for Sanchez-Lopez’s release to high-level electronic monitoring. Instead, the department’s attorneys argued, Metro’s “inability to accommodate the Justice Court’s approval” was the result of the determination that Sanchez-Lopez, who has a history of 35 arrests, posed an unreasonable risk to the public.
Goodman ultimately agreed to release Sanchez-Lopez onto a pretrial compliance unit operated by the Las Vegas Justice Court, which is another way to supervise defendants accused of low-level offenses.
Public defenders have filed a motion that could lead to Metro being held in contempt.
Metro opposes the request.
“You cannot hold somebody in contempt for following the law, for following their duty,” Dickerson said.
He said the sheriff did not receive due process in Sanchez-Lopez’s case, and that a release order is for the defendant, not the sheriff.
Besides, he said, a release order is for the defendant, not the sheriff.
Westbrook said Goodman took Sanchez-Lopez’s criminal history into account before determining release conditions.
“The judge in this case did the job properly and made a ruling after doing that job,” he said. “It is not the place of a Metro officer sitting alone at a desk to overrule the judge. It was judicial discretion and they don’t get to say no.”
Other cases
At least one judge appears to see the situation differently than Goodman. Some judges have also modified their orders to fit Metro’s determinations.
In the case of Matthew Cordero-Davila, who pleaded guilty to coercion constituting domestic violence, District Judge Erika Mendoza ultimately agreed with Metro and said in court that the law permitted “them to have their own standards and review for who they can accept on monitoring.”
As part of Cordero-Davila’s plea agreement, prosecutors agreed not to oppose his release with medium electronic monitoring.
The judge accepted his guilty plea and ordered medium-level electronic monitoring in January. When Metro would not release him to that level of monitoring, she ordered the department to explain why, as she put it in court papers, it “refused to comply with a Court Order.”
Metro said in a filing that Cordero-Davila could pose an unreasonable risk on medium-level monitoring because of his criminal history and proximity to people protected by a no-contact order, but would be appropriate for high-level monitoring.
Mendoza eventually said that Metro acted reasonably and rejected a request to hold the department in contempt. She placed Cordero-Davila on the more restrictive high-level electronic monitoring.
In another case, North Las Vegas Justice of the Peace Belinda Harris in November ordered $150,000 bail and high-level electronic monitoring for Jaeion Severin, who has been accused of shooting at an officer and trying to break into a car.
Court records indicate Severin posted bail but Metro rejected him for house arrest. Harris decided he would be detained, despite her original order.
Defense attorney Dowon Kang said the allegations against Severin are just allegations. He wants Severin released to monitoring.
“This is the collapse of our civilization if Metro is openly defying our courts,” he said.
Legal experts are divided on the issue.
Former Clark County District Attorney David Roger, who now serves as general counsel to the Las Vegas Police Protective Association union, agrees with Metro’s position.
Based on state law, “what the court can’t do is saddle the sheriff with supervising individuals on house arrest,” he said.
Robert Langford, a longtime defense attorney and former prosecutor, agreed with Westbrook’s stance.
“The court should rule in favor of the courts,” he said, and say that when a judge makes a decision about release conditions, police cannot second-guess it.
Contact Noble Brigham at nbrigham@reviewjournal.com.
