Donavan McIntosh v. City of North Las Vegas, et al.

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 DONAVAN McINTOSH, Case No.: 2:21-cv-01505-APG-EJY

4 Plaintiff Order Granting in Part Nonparty Witness State Senator Dina Neal’s Motion to Quash 5 v. or Modify Trial Subpoena

6 CITY OF NORTH LAS VEGAS, et al., [ECF No. 133]

7 Defendants

8 Donavan McIntosh sues the City of North Las Vegas (CNLV) and current or former CNLV 9 police officials Pamela Ojeda, Clinton Ryan, and Alejandro Rodriguez, alleging they subjected 10 him to race discrimination and retaliation for engaging in protected activity in the form of good- 11 faith reporting of discriminatory conduct. 12 McIntosh’s allegations include that: (1) he engaged in such protected activity when he 13 contacted then-State Assemblywoman and friend Dina Neal (now State Senator Neal) to discuss 14 concerns about his work environment in the fall of 2018; and (2) Senator Neal discussed 15 McIntosh’s individual work-related concerns with CNLV and its officials in January or February 16 of 2019.1 McIntosh also alleges the defendants took adverse actions against him shortly after 17 Senator Neal met with them in January or February of 2019 and shortly after Senator Neal 18 participated in a legislative hearing on March 7, 2019 that McIntosh characterizes as critical of the 19 CNLV police department. 20 On April 17, 2026, McIntosh served Senator Neal with a trial subpoena commanding her to 21 appear and testify as a nonparty witness at the jury trial in this case. On April 24, 2026, Senator 22 Neal moved to quash or modify the trial subpoena and for a protective order. ECF No. 133. She

23 1 From 2010 to 2020, Senator Neal served as a member of the Nevada State Assembly. In 2020 and 2024, Senator Neal was elected as a member of the Nevada State Senate, and her current 24 four-year term of office ends on the day after the general election in 2028. 1 argues that most, if not all, of her testimony is precluded by the doctrine of legislative privilege 2 and immunity. On April 28, 2026, I heard oral argument on the motion. Senator Neal was 3 represented by the Legal Division of the Legislative Counsel Bureau (LCB Legal), which 4 represents her in her official capacity as a member of the Nevada Legislature (Legislature). See

5 State ex rel. Cannizzaro v. First Jud. Dist. Ct., 136 Nev. 315, 318-20, 466 P.3d 529, 532-33 6 (2020) (discussing LCB Legal’s representation of state legislators in their official capacity). I 7 grant the motion in part. 8 Legislative privilege and immunity prevents compelled testimony and compelled disclosure 9 of legislative materials when such testimony or disclosure would intrude upon, interfere with, or 10 pry into the legislative process. See Gravel v. United States, 408 U.S. 606, 616-17 (1972); Lee v. 11 City of Los Angeles, 908 F.3d 1175, 1186-88 (9th Cir. 2018); Jeff D. v. Otter, 643 F.3d 278, 289- 12 90 (9th Cir. 2011); City of Las Vegas v. Foley, 747 F.2d 1294, 1297-99 (9th Cir. 1984); Miller v. 13 Transamerican Press, Inc., 709 F.2d 524, 530-31 (9th Cir. 1983). The protection extends to all 14 actions taken “in the sphere of legitimate legislative activity.” Bogan v. Scott-Harris, 523 U.S. 44,

15 54 (1998) (quoting Tenney, 341 U.S. at 376). Such legislative activity is protected if it is 16 “essential to the deliberations” of the legislative body or “necessary to prevent indirect impairment 17 of such deliberations.” Gravel, 408 U.S. at 625 (quoting United States v. Doe, 455 F.2d 753, 760 18 (1st Cir. 1972)). 19 Similar to other privileges and immunities, legislative privilege and immunity generally 20 must be asserted on a question-by-question basis. Senator Neal is entitled to protection if 21 questioning touches upon interactions and communications she had in her official capacity to the 22 extent it relates to her discussion of legislative matters or her participation in legislative committee 23 proceedings. This includes the legislative committee proceedings on March 7, 2019. But the

24 protections do not apply outside of that context. She may be questioned about interactions and 1 || communications she had with McIntosh or others in her official capacity to the extent it relates to 2 || McIntosh’s individual employment circumstances with the CNLV police department. 3 Some of the disputed issues at trial will include whether McIntosh engaged in protected 4 || activity when he contacted Senator Neal. There may be a dispute whether Senator Neal actually 5 || discussed McIntosh’s individual work-related concerns with CNLV officials in January or 6 || February of 2019 or whether she instead discussed legislative matters concerning the CNLV 7 || police department’s recruiting and employment practices and its expenditure of public funds for 8 || police services under certain legislation. In addition, some of the disputed issues at trial will 9 || include whether CNLV and its officials took adverse actions against McIntosh shortly after 10 || Senator Neal met with CNLV officials in January or February of 2019 and shortly after Senator 11 || Neal participated in legislative committee hearings on March 7, 2019. 12 If the parties question Senator Neal about matters associated with her official capacity when 13 || she was acting within the sphere of her legislature activities, she is entitled to the protection of 14 || legislative privilege and immunity as to such questions. Ifthe parties question Senator about 15 || matters associated with her official capacity when she was acting outside of the legislative sphere 16 || (e.g., helping out a constituent or friend), she is not entitled to the protection of legislative 17 || privilege and immunity for those questions. These decisions will be made on a question-by- 18 || question basis at trial. 19 I THEREFORE ORDER that Senator Neal’s motion to quash or modify the trial subpoena 20 || and for protective order (ECF No. 133) is GRANTED in part as set forth above. 21 DATED this 5th day of May, 2026, nunc pro tunc May 4, 2026. 22 23 Cm ANDREW P. GORDON 24 CHIEF UNITED STATES DISTRICT JUDGE