At odds over graffiti

Edward "Ted" Marshall's aging warehouse stands alone on a concrete plain in downtown Las Vegas. Though fenced off, in places with barbed wire, it's not enough to keep those who perpetrate graffiti from wriggling in and leaving their marks on the inviting walls.

Since 2004, he has covered up the graffiti six times. Then someone painted something he kind of liked.

"It looked like a giant heart of some kind," said Marshall, a former Clark County district attorney and one-time candidate for governor. "It covered the wall. It was very artistic.

"I decided, 'Well, that graffiti doesn't look that bad. Why not leave it there?'"

The city of Las Vegas, however, took a different view: Graffiti is graffiti, and it has to go. And since Marshall didn't cover the graffiti promptly, he ended up with a $930 fine after appealing his case this month to the Las Vegas City Council.

An incensed Marshall said that makes him a victim twice over, that he is being penalized for a crime visited upon his property, and he vowed to mount a legal challenge to the city's policy.

"I will not pay that $900 bill," he told the council. "I will go to the Supreme Court before I pay a penny."

Mayor Pro Tem Gary Reese, who represents the area that includes Marshall's property, said the city has to hold the line on graffiti.

"I don't want graffiti on any buildings in the city of Las Vegas," he said.

"He said it was artistic or something, but for me, it's a crime. For him to stand there and say he's sick and tired and he's going to leave it how it is -- that's bull crap."

Local agencies put a lot of resources into covering up graffiti. In the 2007-08 fiscal year, there were 64,780 graffiti abatements in Las Vegas at a cost of $441,000. The Metropolitan Police Department has detectives specializing in graffiti investigations and estimates that more than $30 million is spent publicly and privately in the area to fight graffiti each year.

Marshall said he does not have a problem with that and agreed that most graffiti tagging should be covered up. But he chafes at the idea that he can be penalized for leaving something on the side of his property instead of continuing the Sisyphean task of constantly repainting.

He recently covered that graffiti, and fresh tags have already appeared on the property.

"The City Council is really imposing its judgment on something like this," he said. "Their definition of graffiti is any kind of painting that's unauthorized. The last time, I really wanted to leave that there because I was afraid that what would come next would be worse."

Marshall said he has got two Nevada Supreme Court cases backing the idea that he should not be fined when he is also the victim of a crime: a complicated water-rights case from the late 1800s and a dispute over a 1966 horse trailer accident.

In the water-rights case, a property owner on the Humboldt River was sued by a downstream neighbor who said the dams the owner used to divert water were a nuisance.

The court disagreed, noting that the owner had a legal claim to the water he took and that drought and other diversions upstream were to blame for the neighbor's reduced irrigation water. Because it was not that property owner who was responsible for the dearth of water, he should not be punished, the court ruled.

The 1966 case involved a pair of water pipes that stretched across a Clark County road. A man drove his truck across the unmarked pipes while hauling two horses in a trailer; the trailer came unhitched, and the horses were injured.

He sued a man who leased the property from which the pipes extended, but there was no evidence the tenant even knew the pipes existed until the accident, justices said.

"The law is settled that a person is not liable for injuries resulting from conditions which he has not been instrumental in creating," the opinion said, "or maintaining."

Or maintaining.

Those two words could be very important.

The city's code enforcement authority is distinct from law enforcement prosecution of graffiti-doers, but the entities do work together, city spokeswoman Mary Ann Price said.

It's like "any other situation where you have property damage," she said.

"If you had a burned-out building ... it creates a hazard," Price said. "You as the property owner would be responsible for it."

The reporting of a crime is separate from a city code violation, she said.

Marshall said it could be a while before he files a lawsuit. In the meantime, he might try another response to the city's rules on graffiti, which is defined in city code as an "unauthorized inscription, insignia, symbol, word, figure, character or design" placed on a structure.

"If I were to authorize people to paint on the wall, there's nothing they could do about it," he said. "Have a contest: Who can paint the best portrait of the City Council?"

Contact reporter Alan Choate at achoate or 702-229-6435.