Breaking News: Background Checks Stalled by AG

Ballot Question 1, will not be enforceable on January 1, 2017. Attorney General Adam Laxalt has provided this opinion in which he found that citizens cannot comply with the terms of the law. In short, Nevada has chosen a state system and the FBI will not provide duplicate services for private sales. Ballot Question 1 has not been thrown out or delayed from statutory implementation, rather the attorney general has stated that it is not enforceable, meaning that “citizens may not be prosecuted for for their inability to comply with the Act.” While technically illegal, prosecution for a private gun sale is highly unlikely as attempting to comply with the terms of the law (codified as NRS 202.254) would be impossible.

Ballot Question 1, narrowly passed by about 9,000 voters (and only succeeding in Clark County), bans gun sales between private citizens. It was an initiative paid for and marketed by former New York mayor and billionaire Michael Bloomberg’s Everytown for Gun Safety. Previously, Nevada law allowed free, voluntary background checks for citizens wishing to sell firearms face-to-face. With the revision of NRS 202.254, there are no longer free background checks for private sales and if one wished to get a background check on a private sale, one would have to have a dealer take posession of the firearm and pay $25, as if the firearm was shipped through the mail.

It is believed that the required usage of the FBI NICS system vs. the state system was in part due to gradually "encourage" states to switch to the federal system to better enable a sale/transaction based gun registration system, where gun transfers and sales are used to track who owns a firearm. Without registration, failure to comply with background checks is very difficult to prove.

The Opinion

Basically, the FBI refuses to run background checks on behalf of the Nevada Department of Public Safety, as Nevada has chosen its own Point-of-Contact (POC) center to run background checks (one option of the Brady Bill). This duplicates efforts and federal regulations require all federal or all state (option for a split-system applies only to long guns vs. handguns, not retail vs. private sale).

Since it is impossible for dealers to run background checks as required by the law, and with sales sans a background check banned by law, it would be impossible to privately transfer a firearm  legally. This is a Catch-22 and a deprivation of a right without due process of law, as the opinion noted. Therefore, the law must be invalidated because the law cannot require one to comply with the impossible.

The opinion was based on a question posed by the director of the Nevada Department of Public Safety. The question was whether or not the state had the authority to run checks through the Federal system and charge fees. The FBI was conducted as part of the attorney general's research.

“The Nevada Supreme Court long ago adopted the doctrine that the law does not require impossible acts. When a law imposes a requirement that cannot be performed, a party is relieved of compliance until the obstacle to performance is lifted.” 

The law “operates as a total ban, clearly at at odds with the intent of voters,” which was to create background checks on private gun sales (taking the law at face value). “It is manifestly unjust to criminally penalize someone for failing to perform an act that is impossible to perform.” 

“Because the FBI will not perform the background checks required by the Act, enforcement of its criminal penalties will have the unintended consequence of punishing conduct that is widely and reasonably perceived by Nevadans to be lawful.”

The FBI


The FBI NICS Section will not perform background checks requested by Nevada FFLs are required by the initiative. The FBI explained “the recent passage of Nevada legislation...cannot dictate how federal resources are applied” and that “private party background checks are the ‘responsibility of Nevada to be conducted as any other background check for firearms through the Nevada [Department of Public Safety].’”

The FBI's has decided that it is not the FBI's responsibility to conduct private background checks for Nevada, but rather that "these background checks [are to be] conducted as any other background check for firearms, through the Nevada DPS..." But the strict language of the initiative itself requires the federal system be used, which does not allow a simple switch of systems based on the FBI's disinterest in participating.

The FBI did not specifically address whether or not the dealer themselves could sign up for a federal NICS account, but the intent of their letter was that they would have no part in private sale background checks. The FBI might change their opinion administratively or in response to legislation, but under the incoming Trump administration and a Republican controlled Congress, federal changes are unlikely.

Anti-Gunners Shot Themselves in the Foot

This language of the poorly-written law and the method chosen, the popular initiative system, doomed Question 1. The law provided no alternative to use the state system (it specifically required the federal NICS system), and per the state constitution, the law cannot be altered for three years, so there is no quick correction. The anti-gun authors didn't plan for the contingency that the FBI would not play along with their scheme. In fact, the same core version of the law has been traveling from state to state since 2012, gradually evolving as each state exposed flaws in the law.

The legislature cannot change the law for three years, no matter what. No correction of "mistake" (more like a fatal oversight). The idea behind the "no-interference" rule for initiatives is to prevent the legislature from undoing the will of the people (or the will of Clark County Democrat voters, as it were). By choosing this method, instead of writing a better law or waiting for Democrat state government trifecta, the proponents set themselves up for failure.

What the Democratic controlled state legislature will likely attempt to do is pass a legislative background check bill with the "deficiency" corrected. Republican Governor Sandoval vetoed such a bill in 2013, SB 221 and opposed Question 1, so that's likely off-the-table. Or they might try to abolish the Nevada Point-of-Contact center and require all background checks to go through the FBI, thus eliminating one of the FBI’s objections.  However, this route would require Gov. Sandoval’s approval and would invalidate the FBI’s quite real point that Nevada has better access to local records, making the Nevada center a better choice, and thus nothing is likely to change.


The FBI illustrates the perfect point about the NICS systems deficiencies:

"State and local authorities serving as POCs are likely to have readier access to more detailed information for processing background checks than the FBI, thus resulting in fewer system misses of disqualified persons and enhancing system responsiveness for non-disqualified persons. The POCs have access to more current criminal history record and more data sources (particularly regarding noncriminal disqualifiers such as mental health commitments) from their own state than does the FBI, and have a better understanding of their own state laws and disqualifying factors. Specifically, the POC for Nevada checks additional databases to include state protection orders, state warrants, state driver's licenses, parole and probation, and SCOPE (which is Clark County, Las Vegas area records). Also, most of Nevada's protection orders are not in the National Crime Information Center File, which is important to note since only the POC has access to these protections orders and if the FBI were processing background checks on private party sales of firearms for Nevada, these protection orders would not be part of the NICS check.

"The state of Nevada can provide a more comprehensive NICS check that is accomplished when a POC access state-held databases that are not available to the FBI. The Nevada DPS is also in a better position for understanding and applying state laws."

This information alone, specifically that the Federal system is inferior, illustrates that the anti-gun crowd is not only ignorant of the background check system, but prioritizes the groundwork for registration over public safety. If the Bloomberg groups truly cared about safety, they would have chosen the superior Nevada system over the federal, but registration is their goal (and making it harder for citizens to buy and sell guns).

Another reason the NICS check may have been required was because it is "free" in that the FBI does not charge a fee, even though a dealer may charge for being the intermediary handling the transfer. Transfer fees are common for mail-order guns, which are required to be sent to a licensed dealer. Such a fiscal impact would have likely caused the initiative to be rejected based on the increased cost to the state and thus NICS was a ploy to get the law passed.

Could this be challenged in court? It could possibly be, an attorney general opinion is not like an opinion from a state Supreme Court that established case law. However, the state will not prosecute technical violations and attorney general opinions are seen by city and district attorneys as official guidance on the law. If one were prosecuted or the law challenged, the defenses would fall on to the argument made in the opinion that the law does not require the impossible.

Conclusion

The opinion concludes: “...Nevadans are not required to perform the impossible and are therefore excused from compliance with the Act’s background check requirement unless and until the FBI changes its position…” Based on this attorney general’s opinion, at this time, Ballot Question 1 and the revised version of NRS 202.254 are unenforceable, though it is still on the books. For all intents and purposes, beginning Jan. 1, 2017 until further notice, private gun sales are still legal in Nevada.

Stay tuned--this is breaking news.