Scott Sonner / AP
Published Tuesday, June 5, 2018 | 1:56 p.m.
Updated Tuesday, June 5, 2018 | 6:01 p.m.
It's not up to a state judge to tell the governor to enact a flawed gun buyer screening law that voters approved nearly 18 months ago, a top state government lawyer said Tuesday.
"They're asking the court to order the governor to say specific words, to actually script a letter for the governor and force him to sign it," state Solicitor General Lawrence VanDyke said during arguments in a lawsuit seeking enactment of the screening measure.
"Those things are miles beyond any legal standard," VanDyke insisted.
VanDyke made his argument against allegations in the lawsuit that Gov. Brian Sandoval and state officials took half-measures to "sabotage implementation of the people's will" when they asked federal officials if the FBI would take over conducting criminal background checks during private sales of firearms.
A lawyer for advocates of background checks said he had no alternative to get Nevada to enact the gun background check law because Sandoval and state Attorney General Adam Laxalt — Republicans who opposed the ballot measure — are not "fully and faithfully implementing the laws of the state."
"There's nowhere else for us to go," attorney Mark Ferrario told Clark County District Judge Joe Hardy Jr. "When a state official fails to act, or fails to act appropriately, you know and I know the only place we can go is to the judiciary."
In a statement, Sandoval said the measure was flawed and it should be up to the Legislature to change the law to allow private-party background checks to be conducted through the state, rather than the FBI.
"The FBI has indicated that it would not support the ... arrangement proposed by the proponents of Question 1," the governor said through spokeswoman Mary-Sarah Kinner. He referred to the name of the measure that passed by a 1 percent margin in November 2016.
VanDyke, who told the judge that Laxalt shouldn't be a defendant in the lawsuit, accused the plaintiffs of using the court for political purposes.
The lawsuit was filed just days after 58 people were killed Oct. 1 in the deadliest mass shooting in modern U.S. history on the Las Vegas Strip. It has become a political issue in Laxalt's bid to replace the term-limited Sandoval as governor.
Hardy, who was appointed by Sandoval to the state court bench in 2015, has not yet ruled in the case. He made it clear at the start of the nearly 40-minute hearing that he was uncomfortable being asked to decide what the governor should do to enact a law that, according to the attorney general, is unenforceable.
VanDyke calls the initiative flawed because it requires Nevada to have the FBI expend federal resources to enforce a state law.
"Petitioners' position is that the governor needs to implement the law, that's very clear," Hardy said. "But I have struggled from the very beginning with, what are the details of that? Hasn't one letter been issued? And at least one phone call?"
VanDyke listed five phone calls from state to federal officials after the measure passed, and a letter last March 27 from a Sandoval aide to the White House Office of Intergovernmental Affairs.
Ferrario protested. "There is not one letter from the governor's office to the FBI that adequately sets forth how Question 1 should be implemented," he said.
"That's a different thing though," the judge said, interrupting the plaintiffs' lawyer. "You add the qualifier 'adequately.'"
Hardy made no immediate ruling. His decision is expected to be appealed to the Nevada Supreme Court.
Nevada is one of 12 states in the nation that handles processing of criminal background checks for gun sales itself, according to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.
Since 1998, the Nevada Department of Public Safety has screened sales by federally licensed firearm sellers.
Sandoval maintains the state checks are more thorough than federal checks because they include buyer mental health and criminal records relating to domestic violence, misdemeanor crimes, arrest reports and restraining orders.
Proponents of Nevada's initiative concede it wouldn't have prevented the Las Vegas gunman from legally obtaining the cache of assault-style weapons he used.
But they say it could help keep guns out of the hands of people who shouldn't have them by increasing the number of buyers required to undergo background checks.