Nevada gun background check expansion hits roadblock
December 28, 2016
LAS VEGAS —Nevada won't be able to implement a ballot measure that narrowly passed a statewide vote and calls for background checks on more gun sales and transfers because neither the state nor the FBI will do the checks, the state's top prosecutor said Wednesday.
Question 1 called for FBI background checks on private-party gun sales and passed by less than 1 percentage point in November after an expensive campaign. But the FBI informed the state earlier this month that it wants Nevada's Department of Public Safety to conduct the checks itself because that agency already does checks for Nevada's commercial gun sales and has a more comprehensive database.
"The position of the (National Instant Criminal Background Checks System) Section is that these background checks are the responsibility of the state of Nevada to be conducted as any other background check for firearms," wrote Kimberly Del Greco, who oversees the background-check division within the FBI, in a Dec. 14 letter.
The Department of Public Safety asked the Nevada Attorney General's Office whether it could conduct the checks even though the ballot measure specifically called for FBI checks. The attorney general's office concluded that the language doesn't give state agencies the authority to conduct the checks and the act, which was supposed to take effect Jan. 1, is unenforceable.
"Because the Act requires, under criminal penalty, what is currently impossible to perform in light of the FBI's position, citizens may not be prosecuted for their inability to comply with the Act unless and until the FBI changes its public position and agrees to conduct the background checks consistent with the Act," says the opinion released Wednesday.
Opponents of the measure said they have been saying all along that the measure was "a poorly written initiative drafted without any input from Nevada law enforcement."
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"This is what happens when you allow uniformed, out-of-state lobbying groups that prey on people's emotions to write your laws," said Robert Uithoven, campaign director for a Nevada group affiliated with the National Rifle Association, which mostly funded the opposition.
Proponents of the background checks measure, which was financially backed mostly by former New York City Mayor Michael Bloomberg's group Everytown for Gun Safety Action Fund, expressed hope for a fix.
"It is now law in Nevada that private gun sales will go through background checks," said Jennifer Crowe, spokeswoman for Nevada Moms Demand Action, an affiliate of Everytown. "We are confident that the state and the FBI will work together and make it happen to implement the will of the people and protect our public safety."
The background check measure went to a statewide vote this fall after Republican Gov. Brian Sandoval vetoed a similar measure in 2013.
Democratic lawmakers, who have supported background checks in the past and will have control of both the Senate and Assembly in the spring, said they'll consider legislative solutions to make sure the background check plan goes forward. They also criticized the opinion from Republican Nevada Attorney General Adam Laxalt, who was a staunch opponent of expanding background checks and appeared in commercials against the measure.
"Background checks are the law in Nevada, and it is the Attorney General's job to enforce Nevada law," said Democratic Senate Majority Leader Aaron Ford. "It is clear, however, that he has succumbed to out-of-state special interests interested in thwarting the will of the people."
Sandoval will still be in office and could theoretically veto such a bill, but didn't commit to anything on Wednesday.
"It's premature to comment on any hypothetical legislation at this time," said his spokeswoman, Mari St. Martin. "The Governor will review the Attorney General's opinion now and any potential legislation passed during the next legislative session at that time."