Newspaper column: Gun background check law is a futile gesture

The frequency of gun violence calls for a senseless and futile gesture and Nevada Democratic lawmakers are just the ones to do it.

In a matter of days this past week the Nevada Legislature passed Senate Bill 143, which requires background checks to be conducted prior to the sale or transfer of any firearm by a private individual to anyone other than an immediate family member. It passed both the state Senate and Assembly without a single Republican vote. Democratic Gov. Steve Sisolak signed the bill shortly after the Assembly passed it Friday.

The bill is an effort to fix the fundamental flaw that made a similar background check requirement narrowly approved by voters in 2016 unenforceable. The backers of the ballot initiative, Question 1, tried to avoid having a fiscal note saying how much the background checks would cost Nevada taxpayers by requiring the checks to be run through an FBI database and not the Central Repository for Nevada Records of Criminal History, which handles all background checks for federally licensed gun dealers in the states. The FBI refused to do the checks and the attorney general declared the law unenforceable and a district court judge agreed.

SB143 requires the state criminal history repository to be used.

Question 1 passed with only 50.45 percent of the voters approving it, failing in every county except Clark. Ninety percent of Eureka County voters rejected it, as did 82 percent in Elko and White Pine, 74 percent in Nye, 88 percent in Lincoln, 76 percent in Mineral and 89 percent in Esmeralda, for example.

In pressing for passage of the bill Friday an assembly member mentioned the Feb. 14 shooting at a Florida high school a year earlier and read the names of those killed.

Another mentioned the Oct. 1, 2017, mass shooting that left 58 dead at a Las Vegas country music festival as being a reason to require background checks on private firearms sales.

The New York Times a year ago reported that the guns used in both of these shootings, as well as 17 others in recent years, were all obtained legally and the shooters all passed background checks, though a couple probably should not have. So this law would have done nothing to prevent any of those shootings.

Additionally, the Violence Prevention Research Program at the University of California Davis partnered with the Johns Hopkins Bloomberg School of Public Health to study the impact of a similar California background check law passed in 1991. The study found that over the next decade there was no impact whatsoever on firearm homicide and suicide rates.

UC Davis and Johns Hopkins earlier looked at two states that repealed similar background check laws in 1998 and found that over the next decade there was no impact on the rate of firearm deaths.

While SB143 would have no impact whatsoever on gun violence, it would impose considerable costs and time to be spent for those law-abiding Nevadans who try to comply with the rather vague law. Running afoul of the law once is a gross misdemeanor and more than once is a felony.

The law requires both private gun seller and buyer to appear together with the firearm at a licensed gun dealer. Since such dealers are usually open during regular business hours, presumably both buyer and seller would have to take time off from work to do so. The law also says the dealer may charge a reasonable fee, though reasonable is not defined.

One dealer testified this past week that currently background checks can tie up employees for a half hour and sometimes up to two hours. “That’s money out of my pocket,” she said.

How many dealers will be willing to actually perform such background checks, if any, and at what “reasonable” fee?

The law does not go into effect until Jan. 2, 2020. What was the rush? Couldn’t some of these unknowns have been addressed before ramming the bill through merely to satisfy Democrats’ liberal base with a feel good measure that will accomplish nothing?

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: Bundys may have to face trial after all

Cliven Bundy walks out of federal court with his wife Carol on Monday, Jan. 8, 2018, in Las Vegas, after a judge dismissed criminal charges against him and his sons accused of leading an armed uprising against federal authorities in 2014. (R-J pix by K.M Cannon

This past week prosecutors appealed to the 9th U.S. Circuit Court of Appeals the decision by a Nevada federal judge to dismiss with prejudice all charges against Bunkerville rancher Cliven Bundy, two of his sons and a self-style militiaman from Montana because the government failed to disclose potentially exculpatory evidence to the defense. 

Knowing the track record of the liberal 9th Circuit, odds are the court will order the defendants back to face charges.

The Bundy family has grazed cattle on public land in Clark County since the 1880s, but 25 years ago the Bureau of Land Management told the family it could no longer graze cattle in the spring because they might harm the hatchlings of the threatened desert tortoise — a contention range biologists say is bogus. Since those months are the only ones in which cattle gain weight on the desert range, Bundy refused to comply and stopped paying the BLM its grazing fees. 

In April 2014, saying Bundy owed more than $1 million in grazing fees and trespass fines, contract cowboys backed by heavily armed BLM and FBI agents started rounding up the Bundy cattle. In response, armed men from across the West gathered for a face-off with the federal agents.

To avert a potential bloodbath the agents backed down and left, but Bundy and others were later indicted on charges that included obstruction of justice, conspiracy, extortion, assault and impeding federal officers.

Two of three scheduled trials took place, but a year ago during the third trial of Cliven Bundy and his co-defendants Judge Gloria Navarro abruptly halted proceedings and ruled that the prosecutors had willfully and flagrantly failed to disclose evidence that could have been used by the defense, including information about an FBI surveillance camera, documents citing the presence of snipers, certain maps, FBI logs, threat assessments that showed the Bundys weren’t violent, documents reportedly showing that no threatened desert tortoises were ever found to be harmed by Bundy’s cattle, and internal affairs documents detailing possible misdeeds by the Bureau of Land Management agent in charge, who was later fired.

The judge ruled the dismissal was with prejudice, meaning charges could not be brought against them again. 

Curiously, most of that information cited would have allowed the defense to argue the defendants were provoked and were acting in self-defense, arguments the judge previously ruled were impermissible. The appeal goes into excruciating detail about this seeming contradiction.

In response to the appeal, Bundy’s lawyer Larry Klayman asked the appellate court to dismiss the prosecution’s appeal because it had missed the filing deadline. Though the prosecution asked for deadlines extensions, the court has not yet granted such an extension.

According to press accounts, Klayman also called the appeal “unprofessional and grossly unethical,” adding, “They are apparently hopeful that this court, if an appeal is heard, will relieve them from the prospect that their careers at the Department of Justice are over, much more the potential for disbarment. Given the record, this ‘Hail Mary’ attempt to skate from their own liability is destined to fail.”

But the appeal, penned by Nevada Assistant U.S. Attorney Elizabeth White, argues,  “Any missteps were inadvertent (or at worst negligent), and those errors did not merit the court’s strong condemnation of the prosecution team.”

White also argued that court precedents show the appropriate remedy for failing to disclose would be either the dismissal of some charges or a new trial, not outright dismissal. 

In arguing that disclosure of evidence might jeopardize the safety of witnesses and agents, the appeal dredged up a long-discredited base canard. 

The brief stated, “Its goal was to produce all relevant information while protecting victims, witnesses, and law enforcement officers from harassment and threats, and from the violence that had already taken the lives of two police officers and a civilian at the hands of two of Bundy’s extremist followers.”

This refers to the fact that in June 2014, Jerad and Amanda Miller, killed two Las Vegas police officers and another man before being killed in a shootout with police.

What was not mentioned is that the Millers were a couple of leftist lunatics who showed up at the Bundy ranch standoff but were told by the Bundys to leave because of their “very radical” views. They were not Bundy’s “extremist followers.”

Despite this error, the appellate court is likely to look favorably on the prosecution’s appeal. 

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: 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.

 

Hillary: Does that pantsuit come in stripes?

Hillary and Bernie yuck it up over these silly emails. (Getty Imagines)

Here are a couple of traits one seldom associates with someone of presidential timber — gross negligence and obstruction of justice.

Those are terms Fox News sources are using to describe what the FBI is looking into with regard to Hillary Clinton’s rather hapless handling to classified material.

The source specifies 18 USC 793 subsection F as being of concern. That section reads:

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—  Shall be fined under this title or imprisoned not more than ten years, or both.

As for obstruction, the source told Fox: “If someone knows there is an ongoing investigation and takes action to impede an investigation, for example destruction of documents or threatening of witnesses, that could be a separate charge but still remain under a single case.”

Bernie Sanders may be tried of the damn emails and Hillary is tied of talking about them and Democrats want to move on, but the FBI has some serious questions that need to be answered, despite Obama’s nonchalant dismissal of the case.

“I don’t think it posed a national security problem. …” Mr. Obama said Sunday on CBS’s “60 Minutes.” “This is not a situation in which America’s national security was endangered.”

How would he know? Neither he nor Hillary could pass a background check to obtain a security clearance.

You can bet Obama’s politicized Justice Department will run interference and try to keep Hillary out of real legal trouble.

As The Wall Street Journal points out, others in the past have managed to plead down to a misdemeanor for mishandled classified material. Would that be enough to avoid too much of a taint for Hillary backers?

 

Investigations of Reid going nowhere fast

That story in the Washington Times about the Justice Department thwarting efforts to investigate allegations of wrongdoing by Senate Majority Leader Harry Reid and Utah Sen. Mike Lee reminds me that it has been three months since an ethics complaint was filed against Reid.

That too has gone nowhere.

In fact, I can’t find a single reference to the complaint in any Nevada news outlet.

According to the Times, Justice’s public integrity section rejected FBI agents’ efforts to seat a federal grand jury and subpoena witnesses.

Sens. Harry Reid and Mike Lee

Among the allegations against Reid is that money from online poker advocates prompted him to do an about-face on his opposition to online poker and come out in favor of it shortly after his re-election in 2010. He even introduced a bill to legalize online poker, though it has not gone anywhere.

A Utah newspaper last year published a recorded conversation between businessman Jeremy Johnson, who is under a federal indictment, and one-time Utah Attorney General John Swallow following a 2010 fundraiser at which Reid announced his support of online poker.

Johnson told Swallow after Reid left that he pulled aside an online poker backer and asked about the change in stance by Reid.

Johnson asked the person, “How in the hell did you guys get him to do that?”

The backer reportedly said, “Let’s just say he got a little something in his retirement fund.”

That aforementioned ethics complaint was filed Dec. 16 by Cause of Action, a group that says it advocates for government accountability.

The complaint accuses Reid of using his influence to overturn decisions by the U.S. Citizenship and Immigration Services to deny visas to foreigners who planned to lend financial support to the renovation of the Sahara Hotel, now renamed the SLS. Such visas are granted to foreigners who invest more than $500,000 in American projects that create jobs. The agency had turned down the SLS investor visa applications due to “suspicious financial activity.” The decision was ineligible for appeal.

One official reported getting into a shouting match with a Reid staffer over the denial of those visas.

Alejandro Mayorkas

“This one is going to be a major headache for us all because Sen. Reid’s office/staff is pushing hard and I just had a long yelling match on the phone,” that official wrote in an email. That official was later called by Reid himself, seeking the help of the agency’s head,  Alejandro Mayorkas.

Soon after that the agency expedited visas for about two dozen foreign investors. The Washington Times reported that Federal Election Commission records show executives for two companies involved in the hotel project had made $127,000 in political donations over the previous three elections, mostly to Democrats.

“Despite the fact that these applications were ineligible for appeal, Senator Reid’s efforts to lobby USCIS resulted in the reconsideration and approval of those applications …” the complaint says. “Even more troublesome is the fact that Senator Reid’s son, Rory Reid, and his law firm, Lionel, Sawyer & Collins P.C., are legal counsel to the SLS Hotel and Casino.”

Cause of Action points out that the U.S. Senate Code of Official Conduct permits members to assist people with executive branch agencies, but it also says:

“The decision to provide assistance to petitioners may not be made on the basis of contributions or services, or promises of contributions or services, to the Member’s political campaigns or to other organizations in which the Member has a political, personal, or financial interest.”

The complaint also notes that visa recipients are allowed to contribute to political campaigns.

“The American people deserve better,” says the letter from Cause of Action’s Executive Director Daniel Epstein. “It is unfair for politicians to attempt to influence the enforcement of our laws, especially when they — or their close family members — stand to benefit. Even more importantly, such unethical efforts threaten the integrity of our immigration system and our national security.”

The letter concludes by requesting an investigation by the Senate Select Committee on Ethics. Democratic Sen. Barbara Boxer chairs that committee.

Four days after that complaint was filed, the Senate voted to confirm the nomination of Alejandro Mayorkas to become the second in command at the Department of Homeland Security. The vote was 54-41.

Had Reid not just changed the Senate rules the nomination would have failed to achieve the previously required 60 votes.

Mayorkas was confirmed despite the fact he was under investigation at the time for expediting certain visa applications for certain applicants despite the rejection of those visas by career staffers. Among those seeking foreign investors were now-Virginia Gov. Terry McAuliffe and the brother of former Secretary of State Hillary Clinton, Anthony Rodham. They were after visas for investors in an energy-efficient car company.

Sen. Reid made a personal call to Mayorkas, according to the Washington Times, who promised him his agency would take a “fresh look” at the visa request. Soon after, visas were expedited. Hotel project had groundbreaking. Senator changed filibuster rules for presidential nominees so only a simple majority was required. Mayorkas won confirmation on a simple majority vote.

What a coincidence.

And surely it is merely a coincidence that nothing has come of the complaint or the Utah investigation or the fact no Nevada news outlet is reporting on either.

I give it an “8,” Mr. Clark, because you can dance to it … and investigate the lyrics for years

We all danced to it, but some radio stations wouldn’t play it because everyone “knew” the lyrics were obscene and nasty.

The Kingsmen with Jack Ely center.

I know that. You know that. But I did not know the FBI spent two years investigating whether the Kingsmen’s 1963 “Louie Louie” was obscene. This is what Smithsonian magazine is reporting this month. Not only did the FBI investigate for two years, without ever bothering to interview singer Jack Ely, they compiled a 119-page report — replete with the FBI’s obligatory redactions with a black marker. (On page 14 you’ll find one version of what the Feds thought the lyrics were. Warning: Obscene language not suitable for the office.) The probe was apparently prompted by a letter that said the song lyrics “are so filthy that I cannot enclose them in this letter” and complained of  “sneaking in this material in the guise of the latest teen age rock & roll hit record these morons have gone too far.” According to a Smithsonian link to Snopes, the actual lyrics are:

Louie, Louie,
me gotta go.
Louie, Louie,
me gotta go.

A fine little girl, she wait for me;
me catch a ship across the sea.
I sailed the ship all alone;
I never think I’ll make it home

Three nights and days we sailed the sea;
me think of girl constantly.
On the ship, I dream she there;
I smell the rose, in her hair.

Me see Jamaica moon above;
It won’t be long me see me love.
Me take her in my arms and then
I tell her I never leave again.

We couldn’t understand the words then or now, but, oh, did we dance to them — in an unairconditioned empty storefront in downtown Bridgeport, Texas. And you thought the IRS probe of tea partiers was a waste of time.