Lawsuit filed over Nevada’s mothballed background check law

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Steve Marcus

Guns with sound suppressors are displayed in the Sig Sauer booth during the SHOT (Shooting, Hunting and Outdoor Trade) Show on Tuesday, Jan. 19, 2016, at Sands Expo.

Fri, Oct 13, 2017 (2 a.m.)

A background check law that’s gone unimplemented in Nevada since voters approved it in November is now the subject of a lawsuit from a group that wants it enforced.

The lawsuit was filed Thursday, the same day Attorney General Adam Laxalt’s office released his latest opinion on the law. Mark Ferrario, counsel for Nevadans for Background Checks, lists Gov. Brian Sandoval and Laxalt as defendants. The lawsuit seeks to compel the governor to implement the law or a declaratory judgment striking any unenforceable portions.

“This case is about the refusal of the governor of Nevada to discharge one of his most fundamental constitutional obligations — to see that the laws of this state are faithfully executed,” the lawsuit says.

Groups were pushing for the law’s implementation months before a gunman opened fire on the Strip on Oct. 1 in what is now the largest mass shooting in modern American history. Advocates say that even though the gun background check law may not have been able to prevent the shooter from obtaining his guns, it would help keep firearms out of the hands of those who are suicidal or a threat to others.

Nevada law currently says licensed dealers can only sell guns to those who pass background checks. Private gun sales do not require background checks.

“There’s been a renewed push because even though people know that this might not have prevented this particular man from doing this, the evidence shows that it would prevent gun deaths and violence,” said Elizabeth Becker, a volunteer and former chapter leader of Everytown for Gun Safety affiliate Moms Demand Action for Gun Sense in America. “If there is a way to deter criminals and make it harder for criminals to obtain weapons, I support that.”

Background checks

Nevadans for Background Checks sent Gov. Brian Sandoval a legal argument in June, following up on an earlier conversation with a staffer in May, saying Sandoval must work toward the law’s implementation. The group also sent a letter to Sandoval in late September asking that he change Nevada from a point-of-contact state, where firearms dealers contact the Department of Public Safety to conduct the checks, to a partial point-of-contact state, meaning DPS would handle checks for licensed dealers while the FBI would conduct those for private gun sales.

In response, Sandoval on Oct. 4 asked for an opinion from Attorney General Adam Laxalt, who had said in December 2016 that the law could not be enforced. Laxalt’s office issued its most recent opinion Thursday afternoon, saying that making Nevada a partial point-of-contact state would carry “significant policy and safety implications.”

“The FBI has already repeatedly stated that it will not perform the checks required by Nevada law, because such checks are an inferior check to that performed by Nevada's Central Repository and because state law cannot dictate how federal resources are used,” the opinion says. “But how many times the state of Nevada should ask the FBI to change its position is undoubtedly a policy choice for the governor to make, and nothing in the attorney general's December 2016 opinion suggests that the governor is legally prohibited from making another request of the FBI or attempting to negotiate a new arrangement.”

Laxalt’s office contends that the proposed partial point-of-contact structure would be unique, though Mark A. Ferrario, counsel for Nevadans for Background Checks, argues this partial point-of-contact structure is already recognized by the FBI for nine other states.

Ferrario contends the governor can act without the Attorney General’s input. The group threatened to file a lawsuit over the state’s failure to enact the law.

“All that is required of the governor is that he engage directly with the FBI, confirm Nevada's choice of partial POC status, and take the steps necessary to implement the law,” Ferrario said in an Oct. 4 letter to the governor. “There is no reason why such action should be further delayed. We again ask that the governor initiate such action to avoid the necessity of filing a lawsuit seeking to compel him to do so.”

Sandoval’s office did not say Thursday what the next steps are now that Laxalt’s office has issued its opinion.

“The governor will review the opinion released today by the Nevada attorney general,” said Sandoval spokeswoman Mari St. Martin.

The governor vetoed a 2013 gun background check measure that passed the Legislature. At the time, Sandoval said the bill eroded Second Amendment rights.

“The sections of SB221 requiring mandatory background checks on private sales place an unreasonable burden on law-abiding citizens, with the potential to make them criminals,” Sandoval said in his veto message at the time. “It would be unenforceable by law enforcement. It is our opinion this bill would do little to keep firearms out of the hands of criminals.”

Sandoval was also concerned about a provision in the bill dealing with family members, which Nevadans for Gun Safety now acknowledges should be a “reasonable” exception.

After the veto, supporters collected enough signatures to get the issue on the November 2016 ballot. Everytown for Gun Safety was a major supporter of the measure, which narrowly passed with 558,631 votes. It was put on hold about two months later after the FBI notified the Department of Public Safety that it would not participate in the checks as outlined in the measure and Laxalt’s office announced that the law could not be enforced.

The National Rifle Association has not changed its opposition on the gun background check law, pointing to issues with the language in the measure.

“The NRA remains opposed to this measure,” NRA spokeswoman Catherine Mortensen said Thursday in a statement. “We said from the beginning it was poorly worded and would not make Nevadans any safer and that has not changed.”

Congressional action

Since the Oct. 1 shooting, almost all of Nevada’s congressional delegation has signed onto various pieces of legislation seeking to address gun violence. One of the most bipartisan appears to be a ban on bump stocks, a device found in the Strip shooter’s room that is believed to have been used to allow his semi-automatic weapons to fire as if they were fully automatic.

Rep. Jacky Rosen, D-Nev., has signed onto two similar bump stock bans, one sponsored by Reps. Carlos Curbelo, R-Fla., and Seth Moulton, D-Mass. The Curbelo-Moulton bill has 10 Republicans and 10 Democrats as co-sponsors.

“Now is the time for Congress to find common ground on solutions to tackle our nation’s gun violence epidemic, and banning bump stocks should be a straightforward first step,” Rosen said in a statement.

Rosen is also co-sponsoring legislation similar to the Automatic Gunfire Prevention Act, introduced last week by Rep. David Cicilline, D-R.I., and Rep. Dina Titus, D-Nev. Rep. Ruben Kihuen, D-Nev., is supporting the measure, and Sen. Catherine Cortez Masto, D-Nev., is signed onto the Senate’s version of the bill.

“That legislation comes from a bill I co-sponsored last Congress and seeks to prevent future acts of gun violence,” Titus said in an Oct. 10 statement. “Rep. Curbelo’s bill almost mirrors the Automatic Gunfire Prevention Act, but it carries weaker penalties for criminal violators. There is no reason to undermine our position at this point just to satisfy the NRA.”

The Keep Americans Safe Act seeks to ban high-capacity magazines that can hold more than 10 rounds. Rep. Elizabeth Esty, D-Conn., whose district includes the Newtown school where a shooter killed 26 people, is sponsoring the bill with the support of a group of lawmakers including Titus, Rosen and Kihuen.

Rep. Mark Amodei, R-Nev., has not joined efforts to ban bump stocks or high-capacity magazines, though he has said in a Fox News interview that he thinks the bump stock issue should be revisited.

“We’ve looked at the legislation introduced by Rep. Cicilline and felt the language included after the bump stock portion of the bill was too broad,” Amodei said in a statement Thursday. “We’re happy to look at specific language on magazines, but we have not seen any yet. My staff and I also anticipate looking into a bill that Rep. Titus has asked me to look at on the Floor today.”

Titus spokesman Kyle Roerink said the congresswoman spoke with Amodei on Thursday about a future bill to regulate dump stocks, rather than all-out ban them. Titus has been working with the office of Rep. Brian Fitzpatrick, R-Pa., the lawmaker behind the measure. Titus said in a statement that she is hopeful she’ll be able to support the final product.

Cortez Masto is also supporting bills to fund gun violence research and ban bump stocks. Sen. Dean Heller, R-Nev., has said the bump stock regulation needs to be reviewed.

Local gun control activism

The day after the Oct. 1 shooting, Las Vegas residents Zach Conine and Ryan Works started Take Action Nevada to advocate for the implementation of Nevada’s gun background check law, and the passage of new, local gun control measures, such as a ban on bump stocks. Works is a Republican and Conine is a Democrat, and they say this shouldn’t be a partisan issue.

The two are collecting signatures online on a petition they plan to deliver to the governor’s office at the end of the month, an attempt to show that residents want action. They have about 1,000 signatures so far, and gain around 100 each day.

“Our goal is to really provide a petition and a forum for ideas that can help our local county, city, state officials act quickly in order to prevent and mitigate future gun violence,” Conine said. “We know that federal solutions are very difficult and take a long time.”

Becker, of the Everytown for Gun Safety affiliate, said Nevada’s laws could be strengthened to keep weapons from those accused of domestic violence, as well as those who are at risk of hurting themselves or others.

Sen. Pat Spearman, D-North Las Vegas, sponsored a bill that was signed into law by the governor this year to prevent people from keeping or buying firearms if they have been convicted of domestic violence or stalking, under certain circumstances. Nevada law does not prevent those accused of domestic violence from buying a gun in Nevada, Becker said.

Becker said she’s been volunteering with Moms Demand Action since just after Sandoval vetoed the 2013 gun background check measure.

“At the end of the day, background checks have passed twice,” Becker said. “It passed in the Legislature, and it passed through ballot initiative. … If you’re not happy with the wording, then work with the FBI and figure it out.”

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