On Monday, the Nevada Supreme Court issued a ruling suggesting that it shares the ACLU of Nevada’s concerns about the constitutionality of a Las Vegas Metropolitan Police Department policy, the “"Downtown Area of Command Strategic Initiative.” Under the Downtown Initiative, people who have criminal records are arrested for minor infractions, while all others are just cited or ticketed. Although the order did not rule on the Downtown Initiative directly, it described the initiative as questionable.

The ACLU of Nevada filed an amicus brief advocating the rights of Michael Dulin, a criminal defendant who was deprived of an effective public defense.

In 2005, Mr. Dulin was stopped for jaywalking on Fremont Street. When the police discovered Mr. Dulin had a prior record, he was arrested pursuant to the Downtown Initiative and then searched. The search revealed that Mr. Dulin was in possession controlled substances and two hypodermic needles.

On his counsel’s advice, Mr. Dulin accepted a deal in which he entered a guilty plea in return for avoiding being found a habitual criminal, which would carries an additional penalty. Mr. Dulin later attempted to withdraw his guilty plea and file a motion to suppress the evidence of his possession of controlled substances based the question of the constitutionality of the Downtown Initiative.

The Clark County District Judge Donald Mosely rejected Mr. Dulin’s attempt to withdraw his guilty plea, and the case has been bouncing between the Supreme Court and District Court, with much of the work initially being done by Mr. Dulin on his own behalf.

Mr. Dulin contacted the ACLU of Nevada from prison, and the ACLU filed amicus briefs which may have been key to the Nevada Supreme Court’s favorable decision for Mr. Dulin.

In a decision dated March 24, 2008, the Nevada Supreme Court ordered that Mr. Dulin be allowed to withdraw his guilty plea because of concerns that he was not given good advice by his attorney. The court also chastised Judge Mosely for his failure to consider its earlier ruling in the case and his refusal to allow evidence or testimony relating to the legality of the arrest, both of which were problems that the ACLU of Nevada’s amicus filings brought to light. On order from the Supreme Court, the case will now be reheard by a different judge.

Although the Nevada Supreme Court did not rule directly on the legality of the Initiative, this is the second time that the Court has expressed concerns about the Initiative.

In its first review of the issue, again in Mr. Dulin’s case, the court said that the Downtown Initiative, the police officer's stated reason for arresting and searching Mr. Dulin, appeared to violate Nevada law. In this decision, the court again questioned the constitutionality of the Downtown Initiative. The court said that a motion to suppress evidence, which was never heard by the trial judge, "correctly identified the highly questionable nature of the arrest pursuant to the Downtown Initiative and the subsequent search and seizure.”

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