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Nevada Today

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When Is a Law Not Legal? A Look Inside the Lawsuit Over Nevada’s Background Checks Law

In November 2016, Nevada voters narrowly approved Question 1 to close background checks loopholes for gun sales. Some 19 months later, the background checks law remains unenforced. And now, instead of the issue being decided in the court of public opinion, District Court Judge Joe Hardy, Jr., must decide whether Governor Brian Sandoval (R) and Attorney General Adam Laxalt (R) are violating the law by refusing to enforce a law.

Why is the state arguing that a state law is illegal, and how did this case end up in court?

Less than two months after Nevada voters approved Question 1 to expand background checks, Nevada voters learned that the very background checks expansion they approved wasn’t going to happen. Attorney General Adam Laxalt issued an opinion stating that since the initiative requiring gun sales and private-party transfers be done through the FBI’s National Instant Background Checks System (NICS), the FBI’s refusal to do background checks at the direction of the State of Nevada essentially forbids the state from enforcing the just-approved initiative. At the time, it seemed fairly cut-and-dry that the background checks law was dead on arrival.

That all changed last fall. For one, Las Vegas suffered the deadliest mass shooting in U.S. history on 1 October. Then in the days following the shooting, national and international press began poking into the curious case of the background checks law that wasn’t being enforced. Then on October 12, 2017, Nevadans for Background Checks (the campaign to pass Question 1 in 2016) filed suit in district court to compel state officials to work harder to enforce this law. And in Judge Hardy’s courtroom this morning, attorneys on both sides appeared before the judge to make their respective cases.

“Do not allow your court to be used for political purposes.”
– Nevada Solicitor General Lawrence VanDyke

Keep in mind that Sandoval based his decision not to enforce the background checks law on Laxalt’s legal opinion, and that Laxalt based his opinion on the FBI’s purported refusal to take directions from the State of Nevada. At today’s hearing, Solicitor General Lawrence VanDyke (himself, no stranger to political controversy) boldly declared, “This is such a legally flawed case that it will be dismissed entirely.” He then urged the judge, “Do not allow your court to be used for political purposes.”

Nevadans for Background Checks attorney Mark Ferrario had a very different take on what Sandoval and Laxalt have done: “What’s at issue here: A law that was passed by the citizens of this state to enforce background checks.” He then added, “That has been met with resistance every step of the way, including at this very hearing today.”

One of the issues that was debated today is whether Sandoval and Laxalt made a sincere effort to faithfully and fully execute state law. As Ferrario put it, “The simplest thing this Governor could have done was to send a letter to the FBI. […] There was not one letter from the the Governor to the FBI indicating how Question 1 would be enforced.”

“What the state, what the Governor, did was not enough to faithfully and fully implement the law. They had one call to the FBI. That’s it.”
– Mark Ferrario, Attorney for Nevadans for Background Checks

VanDyke took issue with Ferrario’s version of events, starting with the state’s interaction with federal officials on the subject. Regarding Ferrario’s questioning of Sandoval’s failure to negotiate an agreement with the FBI on enforcement, VanDyke told Judge Hardy, “He’s literally asking you to wordsmith a letter from the Governor. There’s nothing in the law that provides for that.”

But according to Ferrario, Sandoval and Laxalt did not make a good faith effort to try to enforce the law. Instead, both used the FBI dispute as an easy way out of executing a law they never wanted to pass in the first place. Since other states already operate under a dual point of contact, why can’t Nevada do so as well? Since the root of the problem lies with Nevada’s point of contact status, Ferrario argued that it’s up to Sandoval to make a sincere effort to enforce the law that voters approved.

Mark Ferrario also had this to say about what can’t be done: “What the Governor can’t do is he can’t do nothing. That begs the question of what you can do.” He continued, “What the state, what the Governor, did was not enough to faithfully and fully implement the law. They had one call to the FBI. That’s it.”

“They are not enforcing the law because they don’t want to. That is a violation of the law, as their job is to enforce the law.”
– Elizabeth Becker, Moms Demand Action

Once more, Lawrence VanDyke dismissed Mark Ferrario’s notion that state officials aren’t doing enough to execute the law. He pointed to five phone calls to federal officials since the initiative’s passage and a March 27 letter to the White House Office of Intergovernmental Affairs as proof that the state tried, though he didn’t specify whether those phone calls or that letter requested the FBI recognize Nevada as a dual point of contact state in order for background checks expansion to proceed.

Photo by Andrew Davey

That didn’t sit well with gun violence prevention advocates. After the hearing, I spoke with Moms Demand Action volunteers Elizabeth Becker and Linda Cavazos about what happened in court. According to Becker, “The Attorney General and the Governor both came out against Question 1. They are not enforcing the law because they don’t want to. That is a violation of the law, as their job is to enforce the law.”

https://soundcloud.com/andrew-davey-558910073/elizabeth-becker-and-linda-1

Cavazos then declared, “Its extremely facetious for the Governor and the Attorney General to say that this was not legal. […] They are turning it into a political softball, as they are not making a conscientious effort to enforce the law.”  

What happens next?

During today’s hearing, Mark Ferrario requested additional time for discovery, or a court-approved investigation into what Sandoval, Laxalt, and other state officials did or did not do to find a way to enforce the background checks law. Lawrence VanDyke asked Judge Hardy not to approve discovery, and he cited the children’s book If You Give a Mouse a Cookie as reason not to: “If you give the mouse a cookie, you must then give the mouse a glass of milk.” Hardy didn’t seem convinced by VanDyke’s argument, as he left open the possibility of discovery to allow plaintiffs to determine how much the state actually did to try to enforce Question 1.

Another possibility left open is that of severance, or in this case whether just the NICS part of Question 1 can be stricken down, allowing for the Nevada Department of Public Safety can conduct all the background checks. For Becker, “We just want background checks. It’s irrelevant who does the checks. I’m really hoping the judge takes under consideration that he can use severance and say that the State of Nevada can conduct the background checks.”

Whatever happens in the coming days, it appears that Judge Hardy will allow the lawsuit to continue, something Lawrence VanDyke confidently predicted wouldn’t happen. Though local gun safety activists were relieved to see VanDyke fail to win a dismissal, Linda Cavazos expressed frustration over his and his clients efforts to distract the court of law and the court of public opinion from the real issue at hand: “What’s lost here is that they’re not thinking about gun violence victims, the survivors, the impact they’re having on the community.”

Cavazos continued, “After the most horrific mass shooting in our own community, they fail the citizens and the community. They fail us by not finding a way to implement the law.” And so far, it looks like Nevadans will have to wait a little longer to find out whether state leaders who are tasked with enforcing the law will be ordered to enforce this law.

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