It’s been three weeks since lawyers for the stalled ballot initiative requiring federal background checks for private firearm sales and transfers presented arguments to a Las Vegas judge in an attempt to force state officials to implement the law.

Although Nevada voters narrowly approved Question 1 on the 2016 ballot, the law was not implemented after Attorney General Adam Laxalt’s office issued an opinion in December 2016 calling the law effectively unenforceable because of the FBI’s declaration that it would not process background checks for the state.

The legal wrangling and subsequent 17-month standoff over implementation of the ballot question have underscored questions over just who is responsible for implementing the ballot question and just how an initiative approved by voters can be delayed indefinitely.

In a recent interview with the Las Vegas Review-Journal, Laxalt said the measure was fundamentally flawed in how it was structured, and that outside an unlikely change of heart by the FBI, the initiative would not be implemented.

“The bottom line is — they wrote a bad ballot initiative,” he said. “Until the FBI agrees to do that — which, all indicators are that they’re not going to — that’s it. I wouldn’t change anything as governor.”

Left-leaning groups and Democratic politicians across the state have sharply criticized Laxalt — who is running for governor — and Gov. Brian Sandoval for failing to implement the law, culminating in the lawsuit and court hearing three weeks ago.

“Instead of fighting against implementation, instead of accepting a flawed analysis from the FBI that didn’t even get close to addressing the right question, the state should have been advocating (for) the passage of the law,” attorney Mark Ferrario said during the hearing. “This really is quite simple: All we are asking the governor to do is acknowledge the will of the people and advocate for the state of Nevada.”

As the debate over access to firearms and background checks has again reared its head in the wake of a mass shooting in Parkland, FL, we thought it was worth a deep-dive into the stalled ballot question.

Full and hybrid Points of Contact

In 1998, Nevada faced a choice as to how to screen firearm buyers as mandated by the federally approved Brady Handgun Violence Prevention Act, or Brady Act. The state could allow gun sellers who were Federal Firearms License (FFL) holders to conduct background checks by directly contacting the FBI’s National Instant Criminal Background Check System (NICS). Or, the state could, in an arrangement with the FBI, maintain and implement its own background checks and become a Point of Contact (POC) state.

Under former Gov. Bob Miller, a Democrat, Nevada choose to be a “full” POC state — meaning the state would create its own database to conduct background checks on firearm sales — joining California, Utah, Colorado and nine other states. Nevada and other states opted to conduct background checks themselves as it encompassed a variety of sources — going beyond criminal history to include mental-health records, outstanding state warrants and other state criminal history — than the federal background check. The Department of Public Safety (DPS) presently conducts all background checks on behalf of all federally licensed dealers.

A July 14, 1998, letter submitted by the state as confirmation of Nevada’s POC status shows Louis J. Freeh, then director for the FBI, telling Miller that he envisioned “state and federal law enforcement working together to ensure that completed background checks are performed.”

Nevada’s status as a full “Point of Contact” state has been in place ever since.

Gov. Sandoval vetoed a 2013 bill that would have required ‘universal’ background checks to be conducted for the vast majority of private party gun sales and transfers, saying it would create, “unreasonable burdens and harsh penalties upon law-abiding Nevadans while doing little to prevent criminals from unlawfully obtaining guns.”

After the 2016 ballot question was passed, Nevada’s Department of Public Safety (DPS) — the state agency which implemented and which now administers the state background check system — said it contacted the FBI at least four times (twice in writing and twice over the phone) to determine how best to implement the new law.

In at least two letters, the FBI replied that enforcing the new law would not be possible because Nevada chose to be a full “POC” state, meaning FBI involvement in conducting background checks of any sort wouldn’t be allowed because the state “cannot dictate how federal resources are applied.”

“Accordingly, the new Nevada law is in conflict with Nevada’s status as a full POC state, which precludes the FBI from conducting the subject checks under the applicable federal regulation,” the agency wrote in a Jan. 10, 2016 letter.

That correspondence led Laxalt to issue an advisory opinion, requested by DPS head Jim Wright, stating that the initiative as written would, in essence, create an “unconditional ban” on private firearm sales and transfers, which as a matter of due process made the law “unenforceable.”

“When criminal penalties are threatened, the doctrine against requiring impossibilities is strengthened by due process and other constitutional guarantees,” the opinion stated. “It is manifestly unjust to criminally penalize someone for failing to perform an act that is impossible to perform.”

The opinion stated that Nevadans were “excused” from compliance with the new law “unless and until” the FBI changes its position. This had an immediate impact — multiple county sheriffs told the Reno Gazette-Journal that they would not enforce the penalties in the ballot question, due in large part to the attorney general’s opinion.

That decision essentially mothballed the ballot question until September 2017, when Ferrario and backers of the ballot question released both the threat of a lawsuit and a lengthy legal memorandum arguing that by the ballot question passing, it indicated a desire by state voters to modify Nevada’s POC status from “full” to “hybrid,” which likely requires action by the governor.

In an October statement, Sandoval spokeswoman Mari St. Martin said that while the governor preferred the state’s “full” POC status because it encompassed a wider variety of sources and criminal history in background checks than the FBI’s system, he would request another opinion from the attorney general to see if the state could “legally operate” as a dual POC state.

In a response, Laxalt’s office said that the state could again ask the FBI for assistance in implementing the law, but that the proposed arrangement sought by Ferrario and other backers of the ballot question would be “unique and unprecedented” among the 12 “hybrid” POC states, and that the state couldn’t require the FBI to comply. It also stated that any modification could threaten Nevada’s own state-based system for background checks.

“Any change to Nevada’s system that jeopardizes its current status as a full POC state for all federally required background checks, and all voluntary background checks, would be trading a superior, safer system for an inferior, less comprehensive one,” the opinion stated.

Nevadans for Background Checks filed suit against Sandoval and Laxalt in October, and after a rash of legal filings, the two parties appeared in court in February.

Ferrario argued that approval of the measure during the general election meant voters mandated the state switch from a “full” to “partial” Point of Contact system.

“I can dictate a letter to the FBI right now, right in front of you,” Ferrario told the packed courtroom. “Dear FBI, Nevada became a partial Point of Contact state the day Question 1 was passed, period.”’

Solicitor General Lawrence VanDyke, representing the state, has argued that Question 1 was “born with fatal flaws,” therefore making it unenforceable by the governor.

Legal Arguments

At the hearing, VanDyke was presented with a hypothetical situation.

“You are saying the state can’t impose an obligation on the federal government as a general proposition but say, if Gov. Sandoval tomorrow issued an executive order saying that ‘Nevada is no longer a POC. We are going to do all background checks through the FBI,’ wouldn’t the FBI have to do it?” asked Judge Joe Hardy, Jr.

“Yes,” replied VanDyke.

But VanDyke said if the governor did such a thing it would amount to an enforcement of the federal Brady Act, and not a state law (Question 1) imposing new duties upon the federal government.

“Just like states can’t be commandeered by the federal government, obviously states can’t commandeer the federal government either. Question 1 attempts to impose this obligation and cost on the federal government,” he said.

VanDyke added that partial POC states like Iowa, Michigan and Nebraska — where the FBI checks “long guns,” such as rifles and shotguns, and the state checks handguns — were “historical anomalies” because the Brady Act initially only required checks for handguns. VanDyke said some states decided on this hybrid check, perhaps as a result of policy, when long guns and assault rifles checks were added two years later.

“The FBI isn’t stupid,” he wrote in a January 2018 court filing. “The FBI has refused to run the checks because Question 1 envisions an entirely new type of partial-POC status where a state’s full-POC status (which the FBI understandably thinks is better) would be compromised solely because state law imposes a special obligation on the FBI, divorced from any related federal obligation. It is not surprising that the FBI might balk at that.”

But Ferrario said the governor only has to tell the FBI that Nevada is now a partial POC state like Florida and other states, and added he doesn’t understand why the FBI wouldn’t extend the same treatment to Nevada.

Financial impact

So why did the ballot question include language requiring the federal government to undergo the background check, as opposed to having the existing state system expand to cover private-party sales and transfers?

Nevada Firearms Coalition president Don Turner, (the state association of the National Rifle Association) said Nevada’s POC system covers more information and accesses more sources of data than the federal system, but that expanding it would cost the state a significant amount — estimating the cost to be between $3 to $6 million annually.

“The ballot initiative requires it have an economic statement attached to it,” said Turner. “In a point of contact state like Nevada, the state charges (a) $25 fee to do the background check.”

Turner said Question 1 backers included the use of federal background checks so that it wouldn’t have a direct financial impact on the state budget.

“When the people wrote the ballot initiative, they went straight to the FBI then ignored that Nevada had an agreement with the FBI to go through the point of contact,” he said. “It’s not that the law can’t be enforced, it’s that the law is not implementable because it is contrary to the state’s agreement with the FBI. The FBI has basically told the state that you can’t have it both ways. I don’t know what it would take for the state to change from a point of contact but they would lose a significant amount of revenue if they did.”

State law requires ballot initiatives to include a financial impact statement, so the public knows the budgetary consequences of any bill.

That impact statement is typically prepared by the Fiscal Analysis Division of the nonpartisan Legislative Counsel Bureau. It said there are three possible fiscal impact scenarios including a cost to the state of $2.7 million if Nevada stopped being a “full” POC state. But the division could not reasonably determine a financial impact with certainty because it could not determine what agreement the FBI and the state’s Criminal History Repository — a division of DPS — would have about private background checks.

Nevada began waiving the $25 fee for voluntary background checks on private guns sales or transfers last year, but few people have taken advantage — only 25 reported were taken between December and February, compared to the 102,247 checks the state agency conducted for gun sales made by licensed dealers in all of 2017.

Constitutionality

The fight over Question 1 hasn’t stayed solely in the legal arena — many of Laxalt’s political rivals, including Democratic gubernatorial candidates Steve Sisolak and Chris Giunchigliani, have pounced on the attorney general for “refusing” to implement the ballot question.

Many of the criticisms point toward Laxalt’s coziness with the NRA and political opposition to the ballot question, including appearing in an ad imploring voters to reject it during the 2016 campaign season.

In an op-ed in the Las Vegas Review-Journal, Laxalt pushed back on the accusation that he singlehandedly blocked the measure, calling it “absurd.”

“It is not the job — and it is not within the legal authority — of the attorney general to either block or implement any ballot initiative,” he wrote. “The attorney general’s role is to provide a legal opinion, when asked, based on an analysis of the law. That is exactly what I did. Nor is it the attorney general’s job to correct the mistakes of a group of out-of-state activists who designed a poorly written, unenforceable initiative because they couldn’t be bothered to familiarize themselves with either Nevada law or FBI practice before sending it to the ballot.”

Still, the advisory order’s language — prompted as it might have been by the FBI’s refusal to comply with the requirements of the ballot question — has given Nevada law enforcement at the very least a legal rationale to not enforce the penalties associated with the ballot question.

Nevada’s Constitution grants the attorney general, as the top lawyer in the state and adviser to the governor, the ability to prosecute and enforce any state-approved laws not being followed. As the top legal counsel to the governor, Laxalt is responsible for ensuring laws in the state are being enforced.

"The attorney general has the power to prosecute and enforce any state law not being followed,” UNLV professor Ruben Garcia of William Boyd School of Law said. “The government has a role in creating a system to implement a ballot initiative. The executive branch can also use regulations to implement what the people passed.”

Court documents filed by VanDyke in response to the lawsuit said the Constitution requires the governor to “execute” laws, not salvage those written in a way to make them effectively “unenforceable.”

Article 19, Section 1 (3) of the state’s Constitution says any voter-passed law “shall stand as the law of the state and shall not be amended, annulled, repealed, set aside, suspended or in any way made inoperative except by the direct vote of the people.”

VanDyke in court said the vagueness of the ballot measure made it impossible to enforce.

“Generally speaking, it’s not enough for government to say we can’t do anything because they don’t know what to do, ” said Garcia.

But implementation, at least in terms of changing Nevada’s POC status, would likely need to come from the governor’s office. Laxalt’s office said in its October opinion that the governor would still need to “persuade” the FBI to change its position on performing the background checks.

“Just as there were no legal impediments preventing the original DPS inquiry of the FBI concerning the FBI’s willingness to perform the checks contemplated by the Act, there is no law or legal principle that would bar you from renewing that inquiry and implementing, through an executive order, any resulting modifications to Nevada’s current status as a full POC state,” his office wrote.

In a statement to The Nevada Independent sent in February, Sandoval said the best course of action would be for the Legislature to approve a change to the initiative language next session (lawmakers are barred from meddling with voter-approved ballot initiatives for at least three years after passage) requiring the state to perform background checks on private sales and transfers.

“Going forward, Governor Sandoval believes that the best path for both the proponents of the initiative petition, and the citizens of Nevada, would be to work with the legislature after the amendment moratorium has passed, and change the law to allow private party background checks to be conducted through DPS, rather than the FBI,” his office said in a statement.