Criminal background checks for firearms sales law has a Catch-22

Question 1 has been impaled on a Catch-22.

You remember Question 1, don’t you? It was on all the ballots in Nevada and passed with 50.45 percent of the vote, failing in every county except Clark. It requires almost all private sales or transfers of firearms to be cleared by a criminal background check first. Failure to comply would result in up to a year in jail and a $2,000 fine.

Now Attorney General Adam Laxalt has opined that the drafters of Question 1 were too smart for their own good and created a law that cannot, at this time, be enforced, because the federal agency that is specifically required to carry out said background checks refuses to do so. 

The ballot summary stated: “The background check would be conducted using the National Instant Criminal Background Check System administered by the Federal Bureau of Investigations (FBI), and the federally-licensed dealer would be able to charge a reasonable fee for conducting the background check and facilitating the firearm transfer between unlicensed persons.”

But earlier this month the official in charge of FBI’s criminal background check system sent the state a letter saying his office would not conduct those background checks because Nevada is one of the many states that has entered into a sort of mutual aid pact in which the state becomes the Point of Contact for background checks. The state Department of Public Safety is given access to the NICS data bank and uses that and its own resources to conduct background checks for firearm sales.

The head of NICS said a state cannot require a federal agency to expend resources and it will not.

Laxalt’s opinion concludes:

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Catch-22.

The law specifies one and only one method for conducting criminal background checks, thus prohibiting the state from doing so. Therefore, the law is unenforceable.

Here is a passage from Joseph Heller’s book that explains Catch-22:

Yossarian looked at him soberly and tried another approach. “Is Orr crazy?”
“He sure is,” Doc Daneeka said.
“Can you ground him?”
“I sure can. But first he has to ask me to. That’s part of the rule.”
“Then why doesn’t he ask you to?”
“Because he’s crazy,” Doc Daneeka said. “He has to be crazy to keep flying combat missions after all the close calls he’s had. Sure, I can ground Orr. But first he has to ask me to.”
“That’s all he has to do to be grounded?”
“That’s all. Let him ask me.”
“And then you can ground him?” Yossarian asked.
“No. Then I can’t ground him.”
“You mean there’s a catch?”
“Sure there’s a catch,” Doc Daneeka replied. “Catch-22. Anyone who wants to get out of combat duty isn’t really crazy.”
There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
“That’s some catch, that Catch-22,” he observed.
“It’s the best there is,” Doc Daneeka agreed.

Here is how the AG opinion signed by Bureau Chief Gregory Zunino further explains it:

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Editorial: Voters should reject gun background check initiative

 

One of the most harebrained, fetid proposals ever to waft out of the cesspool of New York City has landed with a sickening splat on Nevada’s November ballot and it just might become law — jeopardizing our freedoms and constitutional rights without accomplishing so much as a scintilla of its intended purpose.

Question 1 would require “universal” background checks on all gun purchases. It is being pushed by Nevadans for Background Checks, which is funded by former New York Mayor Michael Bloomberg’s Everytown for Gun Safety.

A summary of the measure reads in part: “This initiative requires that an unlicensed person who wishes to sell or transfer a firearm to another person conduct the transfer through a licensed gun dealer who runs a background check on the potential buyer or transferee. A licensed dealer may charge a reasonable fee for this service.”

Failure to comply is punishable by up to a year in jail, a $1,000 fine or both.

A recent statewide survey conducted on behalf of the Las Vegas newspaper found that 58 percent favor passage of Question 1 compared to only 32 percent opposed.

So far, a majority of Nevada sheriffs have come out against the background check initiative, as well as the governor and the attorney general. The consensus is that the measure will do nothing to stop criminals from getting their hands on guns — well, they are criminals after all — but the complexity of the law will doubtless ensnare innocent gun owners and waste the time of gun owners and those in law enforcement, as well as the taxpayers’ money.

The National Rifle Association, which obviously opposes Question 1, points out that the assumption that background checks will keep guns out of the hands of criminals is a total hallucination. Criminals get firearms on the black market, street purchases and theft. A Department of Justice analysis found 77 percent of criminals in state prison for firearm crimes got their guns in one of those ways or from friends or family. Less than 1 percent got firearms from dealers or non-dealers at gun shows.

The law is so strict that a gun seller whose purchase fails to go through for some reason will have to pay for and undergo a background check to get his own weapon back from the licensed federal firearm dealer.

Opponents note that if passed Question 1 would not allow a person to lend a weapon for hunting or target shooting until both parties appear before a licensed firearms dealer, pay a fee and relinquish the weapon until the background check is completed.

Attorney General Adam Laxalt said in a statement: “As the state’s chief law enforcement officer, I take seriously my duty to ensure that my fellow Nevadans are safe. I have carefully reviewed the Question 1 initiative and have concluded that it would not prevent criminals from obtaining firearms and would instead cost Nevadans time, money, and freedom.”

A spokesman for Gov. Brian Sandoval released a statement saying: “The governor does not support Question 1. He has concerns that this measure would dilute the legitimate rights of law-abiding Nevadans and that it does not actually address the complex issue of keeping firearms out of the hands of criminals.”

Typical of the views of most sheriffs was a comment to the press by Elko County Sheriff Jim Pitts: “Only the citizens who follow the law are going to be the ones who follow it, and the ones that are the criminals aren’t going to follow it anyway. … This comes back again to unfunded mandates that they’re passing on to the local law enforcement that we just don’t have the manpower or the money to do this.”

Nye County Sheriff Sharon Wehrly said: “It merely places more restrictions on good people, will make it more difficult, and incur unnecessary costs for law-abiding citizens to manage their personal property.”

This newspaper urges Nevada voters to soundly reject Question 1.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Editorial: Most sheriffs and the governor oppose gun background check initiative

Three out of four Nevada county sheriffs agree, Question 1 on the November ballot, the Nevada Background Checks for Gun Purchases Initiative, should be voted down, because it will do nothing to prevent gun violence, will be too costly and merely put honest people in jeopardy of running afoul of a nitpicking law.

The National Rifle Association reports opposition to Question 1 has been announced by Sheriff Ken Furlong (Carson City), Sheriff Ben Trotter (Churchill County), Sheriff Ron Pierini (Douglas County), Sheriff Jim Pitts (Elko County), Sheriff Keith Logan (Eureka County), Sheriff Ron Unger (Lander County), Sheriff Kerry Lee (Lincoln County), Sheriff Al McNeil (Lyon County), Sheriff Sharon Wehrly (Nye County), Sheriff Gerald Antinoro (Storey County), Sheriff Chuck Allen (Washoe County) and Sheriff Mike Allen (Humboldt County).

Clark County Sheriff Joe Lombardo has chosen to remain neutral and others are silent on the matter.

Most recently, Gov. Brian Sandoval has added his voice to the opposition. “The governor does not support Question 1. He has concerns that this measure would dilute the legitimate rights of law-abiding Nevadans and that it does not actually address the complex issue of keeping firearms out of the hands of criminals,” said Mari St. Martin, a spokeswoman for the governor.

St. Martin has noted that existing law already prohibits a person from selling or giving a firearm or ammunition to another person if he or she has actual knowledge that the other person is under indictment for or has been convicted of a felony, is a fugitive from justice, has been found mentally ill or is in the country illegally.

Question 1 would require “universal” background checks and require law enforcement to scrutinize virtually every gun sale or transfer. It is being pushed by Nevadans for Background Checks, which is funded by former New York Mayor Michael Bloomberg’s Everytown for Gun Safety. It would require most gun transfers to be conducted through a federally licensed firearms dealer.

A summary of the measure reads in part: “This initiative requires that an unlicensed person who wishes to sell or transfer a firearm to another person conduct the transfer through a licensed gun dealer who runs a background check on the potential buyer or transferee. A licensed dealer may charge a reasonable fee for this service.”

Elko County Sheriff Jim Pitts has been quoted as saying, “This is for one thing a law that we can’t enforce. There’s no way of enforcing this. Only the citizens who follow the law are going to be the ones who follow it, and the ones that are the criminals aren’t going to follow it anyway. How are we going to follow it up?”

Washoe County Sheriff Chuck Allen said Question 1 infringes upon the Second Amendment and “will do absolutely nothing to stop criminals while criminalizing the commonplace activities of many Nevada gun owners.”

Carson City Sheriff Kenny Furlong has said, “Any bill that does not address mental health, which I believe to be the core cause of the violence we’ve had across the country, does not meet my expectations.”

Sheriff Sharon Wehrly in Nye County has said, “It merely places more restrictions on good people, will make it more difficult, and incur unnecessary costs for law-abiding citizens to manage their personal property.”

A recent survey conducted by Las Vegas television station KTNV in conjunction with Rasmussen Reports found that 65 percent of those polled support the background checks initiative and only 28 percent opposed it with 7 percent undecided.

Perhaps the majority of sheriffs and the governor can help persuade the voters that one more unenforceable law on the books will just add to the regulatory burden and cost and do nothing to increase safety.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Columnist has a strange view of how editorial boards work

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In his op-ed column in today’s Las Vegas newspaper, Steve Sebelius uses the term majority a dozen times to refer to a “majority” of the paper’s editorial board and the decision to publish an editorial this past Sunday opposing the margin tax for education, Question 3 on the November ballot. He, of course, endorses the tax and I happen to agree with the editorial stance.

“Sunday’s editorial made the case against The Education Initiative, saying it would be economically destructive across a wide variety of businesses, and that, in fact, ‘it does guarantee a much worse economy.’ In these contentions, I believe the majority is simply wrong,” Sebelius writes.

The column leaves the distinct impression that a newspaper’s editorials are determined democratically by a “majority” of the editorial board members. At all the papers I’ve worked at since the early 1970s, that has not been the case.

People would ask me, when I was editor of the Review-Journal, how editorial decisions were made and I would explain that the editorial board would discuss the various aspects of an issue, the board would vote, and the publisher always won — a majority of one.

There is a tagline at the bottom of the editorial column that reads: “The views expressed above are those of the Las Vegas Review-Journal. All other opinions expressed on the Opinion and Commentary pages are those of the individual artist or author indicated.”

Unless things have changed far more than I could imagine at the R-J, the term “majority” is a misnomer.

In fact, in my current incarnation as a free-lance columnist and editorialist for a string of rural newspapers owned by the R-J’s former publisher Sherman Frederick, this distinction has in fact arisen.

Back in December I penned a column pointing out a better way to reduce the caseload of the Nevada Supreme Court than creating an appeals court, which is Question 1 on the ballot.

But the publisher wanted to endorse Question 1. I told him an editorialist is like a gunslinger or a hooker. Who do you want shot or screwed? The price is the same. (Borrowed from a description a lawyer once used for his profession, but it works in this case as well.)

By the time I finished the editorial I may have convinced myself to vote for the appeals court, since the better solution is not on the ballot and the current situation is untenable.

That’s how it really works at the vast majority of newspapers. It’s hardly a democracy.

(By the way, at this year’s Nevada Press Association contest my columns and editorials won first places in the community newspaper division. I also had first places in both categories while at the R-J. Both of those were deservedly captured this year by Glenn Cook.)

Voter must weigh pros and cons of creating an appeals court in Nevada

Between now and the November election you likely will hear this phrase repeated frequently: “Justice delayed is justice denied.”

This pithy little aphorism is usually attributed to 19th century British Prime Minister William Gladstone and argues that legal redress not delivered in a timely fashion is tantamount to no redress at all — such as some court cases here in Nevada that are still pending, though most of the original parties have long since died.

It is the favorite argument proffered by advocates for setting up an appeals court in Nevada, even though voters rejected similar proposals in 2010 and 1992.

Actually, that is not the strongest argument for ballot Question No. 1. You see, in order to keep up with its truly monumental caseload, the Nevada Supreme Court has over the past years resorted to disposing of most cases with non-precedential memorandum, or what are called unpublished opinion, since these can be prepared quicker and more easily than a full blown opinion. The case is settled but the ruling sets no precedent for similar cases, and thus offers no guidance for the courts, attorneys and parties. The same legal ground gets plowed over and over, wasting time and money for litigants and taxpayers.

Kris Pickering addresses Nevada Legislature (AP file photo)

“The published opinions that establish guidance on unsettled questions of Nevada law, as a percentage of the number of total dispositions, has declined over the years to where it now hovers between 3 and 4 percent,” the court reported in its fiscal year 2013 annual report.

The Nevada Supreme Court handles everything from appeals for driver’s license revocations to appeals in family law, foreclosure mediation, business, and death penalty cases.

At the urging of the justices, the 2013 Nevada Legislature passed SJR14, which would, if approved, create the Court of Appeals. But it would not be just another layer of judicial bureaucracy between the 171 district court judges and the seven-member Supreme Court. It would be a push-down court.
All appeals would go straight to the Supreme Court, but about a third of all cases, estimated to be about 700 a year, would be sent to the three-justice appeals court — such as timely cases involving child custody and criminal convictions.

The Nevada Constitution requires mandatory review of all cases, but the appellate court would allow discretionary review. The few cases anticipated to be appealed from the intermediate court would have been thoroughly reviewed and the high court could make short work of those cases.

The 2013 Annual Report of the Nevada Judiciary indeed shows the state’s high court carrying a huge caseload. Of the 10 states that do not have an appellate court, the report showed Nevada had the highest caseload by far — 2,333 cases compared to the second highest of 1,524 in West Virginia and 910 in third highest New Hampshire. That caseload means there are 333 cases for each of the seven Nevada justices. The American Bar Association recommends no more than 100 cases.

In a comment to the 2013 Legislature, Chief Justice Kris Pickering said, “In 2012, filings exceeded the dispositions and will likely continue to do so. Delayed dispositions and lack of precedent by which citizens can predict outcomes and regulate themselves are the result. This hurts not only citizens whose cases are delayed but Nevada’s nascent economic recovery as well.”

If approved by the voters, the appeals court would be housed in the Regional Justice Center in Las Vegas, closer to the vast majority of parties in legal disputes and thus saving time and money.

The cost of implementing the Court of Appeals is estimated to be $1.5 million a year to pay for the three judicial positions as well as staff — one executive legal assistant and two law clerks per judge. Since the Supreme Court is expected to spend less due to this intermediate court the total increased cost to taxpayers should be less than $1.5 million.

Nevadans are not getting the timely justice they deserve and are having to spin their wheels making the same legal arguments time and again. This time we believe the justices and lawyers supporting this measure have made a better case for an appellate court.

On the other hand, it might be cheaper to just change the state constitution so that the Supreme Court would hear only the most significant cases — discretionary review.

Nevada is one of the few states that allow high court review of darned near any case for any reason or no reason — other than one party not liking the outcome at the lower court level. Most states, like the U.S. Supreme Court, allow discretionary review. Only cases deemed worthy for some stated reason are taken up by the highest state court.

If you look at the stats from 2012, you’ll find the Nevada Supreme Court handled 2,248 appeals. Out of all those cases, the high court reversed only 10 cases and reversed/remanded only 95 cases. The vast majority were affirmed, denied or dismissed.

So, does the state of Nevada need to amend its Constitution to add another court at a cost of $1.5 million or should it amend the Constitution to make appeals discretionary? The justices argue the appeals would essentially be a discretionary review process.

study conducted 30 years ago found that in only a couple of years after creating appeals courts the number of opinions written by the state court of last resort was nearly the same as before the creation of the appeals court.

The voters have only the option of yes or no to an appeals court.