Published Wednesday, Dec. 28, 2016 | 1:09 p.m.
Updated Wednesday, Dec. 28, 2016 | 9:15 p.m.
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. 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.
One proponent of background checks disagrees with the assessment of the measure's language.
"Implementing Question 1 simply requires some cooperation between Nevada officials and the FBI," said Jennifer Crowe, the Nevada spokeswoman for Moms Demand Action, part of Everytown for Gun Safety, which supported the ballot question.
"Other states have a hybrid system where responsibility for background checks is shared by both the FBI and state agencies," she said. "This law can be implemented and we are confident that the state of Nevada and FBI can and will work together to make it happen."
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, didn't immediately say whether they would try to address the concerns through legislation. Sandoval will still be in office and could theoretically veto such a bill, although his office didn't immediately comment Wednesday on whether he would do so.
The expensive battle for background checks was primarily funded by former New York City Mayor Michael Bloomberg's group, Everytown for Gun Safety Action Fund. Opposition funding came mainly from a Nevada affiliate of the National Rifle Association.
Nevada Attorney General Adam Laxalt, a Republican, was a staunch opponent of expanding background checks and appeared in commercials against the measure.