Newspaper column: Judge confirms gun background check law unenforceable

A district court judge brought the hammer down on backers of a voter-approved initiative intended to require background checks prior to gun sales by private individuals, telling them the courts and the executive branch cannot fix the problem they themselves created.

The Background Check Act, Question 1 on the November 2016 ballot, passed by a whisker with only 50.45 percent of the statewide vote, failing in every county except Clark. Nevadans for Background Checks reportedly spent $19 million on the campaign for passage with $18 million coming from former New York City Mayor Michael Bloomberg and his political action committee Everytown for Gun Safety. The NRA reportedly spent $6.5 million in opposition.

As Judge Joe Hardy pointed out in his 22-page ruling this past week the Question 1 backers included in the law a requirement that background checks must be conducted by the FBI and not the Nevada Department of Public Safety (DPS), which does the background checks for licensed gun dealers under an arrangement with the FBI called a Point of Contact. This verbiage allowed supporters to argue in the obligatory fiscal note that “no Nevada tax dollars” would be used to conduct the background checks.

Judge Hardy concluded, “This framing and representation no doubt facilitated passage by the voting public,” which seems reasonable considering how narrow the vote margin turned out to be.

The initiative specifically spelled out that those involved in a private gun sale would have to contact a licensed gun dealer to conduct a background check and: “The licensed dealer must contact the National Instant Criminal Background Check System [NICS] … and not the Central Repository, to determine whether the buyer or transferee is eligible to purchase and possess firearms under state and federal law …”

The Central Repository is handled by DPS and uses NICS data as well as state and local data to run background checks required by federal law and those sought voluntarily by private gun sellers.

The Background Check Act carried a penalty of up to a year in jail and a $2,000 fine — if it were enforceable.

But the FBI refused to conduct the background checks, saying a state law could not compel a federal agency to engage in such a costly undertaking.

The backers’ lawsuit sought to have the court force the governor and the state attorney to get the FBI to conduct the background checks or to sever that section from the law. The judge wrote that the state constitution’s separation of powers clause prohibits him from ordering the executive branch to do something so long as their actions are not arbitrary and capricious, and the section could not be severed because that would destroy a central component of the law approved by the voters.

Nevada Attorney General Adam Laxalt, whose office had declared the initiative unenforceable, welcomed the court decision agreeing with his office’s conclusion.

“The Court’s 22-page decision reaffirms what my office has been saying all along — that the Act ‘is unenforceable as written,’” Laxalt was quoted as saying in a press release. “This is not because of anything that I or other Nevada officials have failed to do; in the words of the Court, we have ‘undertaken a real and substantial effort to implement the law.’ Rather, it is a result of Question 1’s flawed drafting. It is unfortunate that the very same people who imposed this defective law on all Nevadans have gone to such lengths to use its brokenness as a reason to politically attack me and other Nevada’s elected officials through litigation. Hopefully, today’s careful decision puts an end to this practice.”

Laxalt is the Republican nominee for governor on this fall’s ballot.

The judge also noted that allegations by the plaintiffs that the attorney general and Gov. Brian Sandoval had failed to aggressively work to make the law enforceable we’re unfounded, detailing communications attempting to negotiate with the FBI, and saying the proponents made improper emotional appeals about public safety.

Gov. Sandoval’s office told The Nevada Independent, a web-based news site, “the Governor’s Office believes the order speaks for itself.”

Basically, the drafters of the initiative were too wily for their own good, opting for selling the law as tax-free and thus building in its own Catch-22.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

 

Newspaper column: Gun law backers too wily for their own good

The backers of a 2016 ballot initiative to create a state law requiring criminal background checks for all private party gun sales — something not required by federal law — are asking the courts to fix a fatal flaw that they themselves created.

Failure to comply with the Background Check Act requirement would carry a penalty of up to a year in jail and a $2,000 fine — if it were enforceable.

The measure, Question 1 on the November ballot, passed with a mere 50.45 percent of the vote, failing in every county except Clark.

The initiative backers — in order to avoid having a fiscal note saying what the mandatory background checks would cost taxpayers, something that might cost votes — wrote the new law to say that those in involved in a private gun sale must contact a licensed gun dealer to conduct a background check and: “The licensed dealer must contact the National Instant Criminal Background Check System [NICS], as described in 18 U.S.C. § 922(t), and not the Central Repository, to determine whether the buyer or transferee is eligible to purchase and possess firearms under state and federal law …”

The Central Repository is handled by the Nevada Department of Public Safety and uses NICS data as well as state and local data to run background checks required by federal law and those sought voluntarily by private gun sellers.

After the initiative passed the FBI was twice asked if would conduct the private sale background checks for the state, but refused, saying state law “cannot dictate how federal resources are applied.”

Attorney General Adam Laxalt’s office issued an opinion saying the law is unenforceable since the state could not force the federal government to perform the background checks and the law specifically prohibits the state from doing so.

The lawsuit filed earlier this month on behalf of three individuals names Gov. Brian Sandoval and Laxalt as defendants. The suit asks the court to force Sandoval to enforce the background check law or, in the alternative, to sever any portion of the law that is invalid or unenforceable. In other words, rewrite the law that the voters so narrowly approved.

Like most laws the Background Check Act contains a severability clause that states if any portion of the law is found invalid or unconstitutional that should not affect the law as a whole because that part could be excised. But the section that the suit seeks to remove was placed there specifically to avoid incurring cost to the taxpaying voters. Without that section the election outcome might well have been different.

On the day the suit was filed Laxalt sent an opinion to the governor telling him that he has the authority to again ask the FBI to conduct private sale backgrounds, but that the request would be “unique and unprecedented” and might jeopardize the state’s current status in which it conducts all federally required and voluntary private sale background checks.

In the December opinion declaring the Background Check Act unenforceable, Bureau Chief Gregory Zunino pointed out that the state-run background checks are in fact superior to those run through just the federal database.

“Because background checks run through Nevada as the Point of Contact incorporate data from both NICS and Nevada’s own state records, the process as currently administered by the Department ensures that persons legally barred from firearms possession do not circumvent the bar simply because the FBI may lack records that Nevada possesses, like mental-health records, records of domestic violence, misdemeanor criminal records, arrest reports, and restraining orders,” Zunino noted. “By having Nevada serve as the Point of Contract, a wide net is cast. The FBI recently suggested, for instance, that the lack of Point of Contact program in South Carolina played a role in Dylan Roof acquiring a gun before murdering nine congregants at a church in Charleston, South Carolina.”

It should be noted that the gunman who fired into a country music concert from the 32-second floor of the Mandalay Bay killing 58 and injuring about 500, obtained his dozens of weapons legally, passing all required background checks in Nevada and several other states.

The initiative was a futile gesture at best, but the backers outsmarted themselves by trying to hide its true cost from the voters.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.