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June 27, 2017

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Group pursues public records over foiled implementation of background-check law

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Steve Marcus

Attendees look over new Smith & Wesson handguns during the 2014 SHOT Show (Shooting, Hunting, Outdoor Trade) at the Sands Expo & Convention Center on Tuesday, Jan. 14, 2014. The show features more than 1,600 exhibitors covering 630,000 square feet and attracts more than 62,000 attendees.

Proponents of the voter-approved Question 1 background-check measure cast a broad net this week in filing a massive public records request to state and federal agencies.

Exactly what they expect to find in that net appears murky.

“I think we’re just trying to get a handle on what took place, including all the agencies that have had a hand in this, that have been involved,” said Jennifer Crowe, spokesperson for advocates of the initiative.

Crowe would not say if there is a specific document or piece of information that the request seeks to unearth. Nevadans for Background Checks retained law firm Greenberg Traurig to assist with the records request, which seeks information from Nevada Attorney General Adam Laxalt, who strongly opposed Question 1 in television ads.

The request also seeks Question 1-related communication from Secretary of State Barbara Cegavske, the sheriff’s offices in Carson City, Washoe, and Storey counties, the state Department of Public Safety (DPS), and the FBI. This includes correspondence among staff and between state employees and outside groups opposed to the measure.

Crowe declined to comment on whether Nevadans for Background Checks plans to use anything it finds as a basis for future legal action.

“We’ve been working since Election Day to make sure that the law is implemented,” Crowe said. “This is the next step.”

Monica Moazez, a spokesperson for Laxalt’s office, said she does not yet know how long it will take to provide the requested documents. The office employs two people to address all public records requests. Typically, the volume of records requested by Nevadans for Background Checks could take months to produce.

Moazez declined to comment specifically on the request.

“Per official policy, the attorney general’s office doesn’t comment on public records requests,” Moazez said.

Question 1 expands required background checks on gun sales and transfers. It sharply divided Nevada voters in November, passing by less than 10,000 votes.

Laxalt issued an opinion in December that the law could not be enacted as passed after FBI officials informed the DPS that it would not conduct the background checks as spelled out by the initiative. The FBI letter reads in part, “the recent passage of the Nevada legislation [Question 1] regarding background checks for private sales cannot dictate how federal resources are applied.” The letter also suggested Nevada conduct the checks through its already-established state system.

The Department of Public Safety asked Laxalt’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 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," reads the opinion in part.

Proponents say Laxalt should work with state and federal agencies to address the problem. Crowe said she is aware of potential efforts by state legislators to craft a fix to the issue but that initiative proponents are not part of that discussion. Nevada legislators are not permitted to make changes to a voter-approved law for the first three years following its passage.

The Associated Press contributed to this report.

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