Final update

The expansion of gun background checks approved by Nevada voters last month will not happen as expected, based on an opinion released Wednesday by the Nevada Attorney General’s Office.

Ballot Question 1 requires that private party gun transfers – with a few exceptions – be subject to a federal background check through the National Instant Criminal Background Check System administered by the FBI.

The FBI sent a letter Dec. 14 to the state of Nevada’s Department of Public Safety saying it would not conduct these checks. The department asked for a legal opinion on the letter’s ramifications.

Read: Nevada AG's opinion, FBI letter

Because the text of the new Background Check Act says private-party transfers and sales must be done through the FBI background check system, the Nevada Attorney General’s Office opinion states, “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.”

In a statement, the attorney general’s office said, “without this central feature (the FBI background check), the Background Check Act cannot commence.”

The main reason given by the FBI for why it would not conduct the check is that “the recent passage of the Nevada legislation regarding background checks for private sales cannot dictate how federal resources are applied.”

In other words, it would require additional staffing or resources at the FBI to handle the work arising from Nevada’s expansion of background checks.

Nevada is one of 12 “points of contact” states that run their own gun background checks rather than relying solely on the FBI’s system.

When someone buys a gun from a federally licensed dealer in Nevada, the dealer contacts the Nevada Central Repository. Someone there runs the name through a number of databases not used by the FBI, including those for state mental health records and misdemeanor domestic battery convictions. The state repository also pings the FBI database to see if the gun buyer is flagged there, too. This requires no additional staffing at the federal level.

If the crafters of the ballot question had required that the state repository be contacted, this likely would have required a fiscal note telling how much this additional work would cost the state budget.

“Given that Question 1 passed by less than 1 percent of the vote, I believe a sizable fiscal note could’ve changed the outcome,” said Robert Uithoven, manager of the NRA Nevadans for Freedom campaign, which opposed the initiative.

“The drafters and the sponsor, Michael Bloomberg’s group, never asked law enforcement to give input on the initiative. ... Had there been some collaboration, this issue might have been brought up earlier and this could’ve been avoided.”

Former Washoe County Sheriff Mike Haley, who campaigned in favor of expanded background checks, said, "The attorney general (Adam Paul Laxalt) has voiced his dislike for this initiative and I believe he will not try to find any resolution to what the FBI has said because he’s adverse to the initiative’s language anyway.”

Haley noted that 18 other states are currently doing what Nevada’s initiative requires.

“It would appear to me that Nevada, in consultation with those other states, can find similar administrative processes to meet the FBI’s requirements,” he said.

Jennifer Crowe said, “Nevada wouldn’t be unusual in having a hybrid system. … There are other states that have some checks run through the FBI and some checks run through their in-state agencies.”

Crowe is the Nevada spokesperson for Moms Demand Action, part of Everytown for Gun Safety, which supported the ballot question.

“The bottom line is that Nevada officials have a responsibility to work with the FBI to implement the system approved by a majority of voters,” she said.

The ballot initiative won by 50.45% to 49.55%, with 558,631 votes in favor and 548,732 opposed. That's a difference of 9,899 votes.

Under Nevada law, the language of ballot initiatives approved by the electorate cannot be changed by the Legislature for three years.

Update at 3 p.m.

One effect of the new background check law approved by voters is that private party sales and transfers would involve direct contact with the FBI’s database system while other gun sales would continue to go through the state’s Central Repository.

Jennifer Crowe said, “Nevada wouldn’t be unusual in having a hybrid system. … There are other states that have some checks run through the FBI and some checks run through their in-state agencies.”

Crowe is the Nevada spokesperson for Moms Demand Action, part of Everytown for Gun Safety, which supported ballot Question 1 to expand background checks in Nevada.

She added, “The bottom line is that Nevada officials have a responsibility to work with the FBI to implement the system approved by a majority of voters.”

The ballot initiative won by 50.45% to 49.55%, with 558,631 votes in favor and 548,732 opposed. That's a difference of 9,899 votes.

Update at 1:08 p.m.

Robert Uithoven, manager of the NRA Nevadans for Freedom campaign against the initiative, said that the background check expansion plan has always been a bad law.

“The drafters and the sponsor, Michael Bloomberg’s group, never asked law enforcement to give input on the initiative,” he said. “This is why not a single district attorney or elected sheriff in Nevada endorsed it. Had there been some collaboration, this issue might have been brought up earlier and this could’ve been avoided.”

Uithoven zeroed in on the FBI’s mention of federal resources to do the checks. If state rather than federal resources had been required to do the additional background checks, a fiscal note estimating the costs would’ve been attached to the initiative.

“Given that Question 1 passed by less than 1 percent of the vote, I believe a sizable fiscal note could’ve changed the outcome,” he said.

Update at 12:49 p.m.

Former Washoe County Sheriff Mike Haley, who campaigned in favor of expanded background checks, said, "The attorney general (Adam Paul Laxalt) has voiced his dislike for this initiative and I believe he will not try to find any resolution to what the FBI has said because he’s adverse to the initiative’s language anyway.”

Haley noted that 18 other states are currently doing what Nevada’s initiative requires.

“It would appear to me that Nevada, in consultation with those other states, can find similar administrative processes to meet the FBI’s requirements,” he said.

Original story

The expansion of gun background checks approved by Nevada voters last month will not happen as expected, based on an opinion released Wednesday by the Nevada Attorney General’s Office.

Ballot Question 1 requires that private party gun transfers – with a few exceptions – be subject to a federal background check through the National Instant Criminal Background Check System administered by the FBI.

The FBI sent a letter Dec. 14 to the state of Nevada’s Department of Public Safety saying it would not conduct these checks. The department asked for a legal opinion on the letter’s ramifications.

Because the text of the new Background Check Act says private-party transfers and sales must be done through the FBI background check system, the Nevada Attorney General’s Office opinion states, “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.”

Opinion blocking Nevada background checks and FBI letter

In a statement, the attorney general’s office said, “without this central feature (the FBI background check), the Background Check Act cannot commence.”

The FBI gave several reasons why it would not conduct the check. The main reason is that “the recent passage of the Nevada legislation regarding background checks for private sales cannot dictate how federal resources are applied.”

In other words, it would require additional staffing or resources at the FBI to handle the additional work arising from Nevada’s expansion of background checks.

More work would be required because of the way Nevada’s current background check system works. Nevada is one of 12 “points of contact” states that run their own gun background checks rather than relying solely on the FBI’s system.

When someone buys a gun from a federally licensed dealer in Nevada, the dealer contacts the Nevada Central Repository. Someone there runs the name through a number of databases, including those for state mental health records and misdemeanor domestic battery convictions. The state repository also pings the FBI database to see if the gun buyer is flagged there, too. This requires no additional staffing at the federal level.

If the crafters of the ballot question had required that the state repository be contacted, this likely would have required a fiscal note telling how much this additional work would cost the state budget. By saying private sales require contacting the federal database, no fiscal note was attached to the ballot question. Fiscal notes are often used by opponents of ballot measures to persuade voters.

The FBI also stated in its letter that Nevada’s background check system has “readier access to more detailed information for processing background checks than the FBI” so Nevadans would be better served if these private sales were not exclusively checked using the federal system.

Under Nevada law, the language of ballot initiatives approved by the electorate cannot be changed by the Legislature for three years.

This story will be updated.