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November 15, 2018

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Analysis:

Can judge force Sandoval into action on gun background checks?

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John Locher / AP

In this Nov. 4, 2014, file photo, Gov. Brian Sandoval waves in Las Vegas.

A lawsuit over Nevada’s 2016 ballot question on expanded background checks for firearms purchases boiled down to a central question Tuesday during a hearing on motions related to the case.

Can a judge put words in a governor’s mouth?

An attorney representing Nevadans for Background Checks told Clark County District Judge Joe Hardy Jr. that the answer was yes, if the governor failed to perform his duty to see that the laws of the state were faithfully executed.

The attorney, Mark Ferrario, said Gov. Brian Sandoval had failed to fulfill his obligation to Nevadans in implementing the ballot question. He said Sandoval, who along with Attorney General Adam Laxalt is the target of the lawsuit, hadn’t worked enough with federal authorities to get the background checks underway.

“You can’t half-bake it,” Ferrario said of Sandoval. “What the governor did here was not enough.”

At issue is a provision in the ballot question calling for the feds to conduct the new checks, which would apply to sales of firearms among individuals who don’t have federal gun dealer licenses. Under pre-existing law, the requirement for background checks applied only to sales involving licensed dealers, and those were conducted by the state.

The provision regarding federal authorities has delayed implementation of the ballot measure, as state officials said the FBI refused to conduct the new checks.

But Ferrario said the FBI’s refusal was based on misleading information provided to the bureau by Sandoval and state authorities. Ferrario told Hardy that Sandoval should be ordered to recontact federal officials, provide them with fully factual information about the ballot measure and ask them to get to work.

“Why are we not seeing a letter from the governor saying, ‘FBI, please do your job?’” Ferarrio said.

But Nevada Solicitor General Lawrence VanDyke, representing Sandoval and Laxalt, said Hardy would be overstepping by ordering Sandoval to take the action requested by Ferrario. He said that on matters in which a governor had discretion, like this one, the court would be overstepping to dictate a response by the governor.

“He (Ferrario) is literally asking you to wordsmith a letter to the governor,” VanDyke said.

Ferrario countered that the courts were Nevada residents’ only recourse when their leaders weren’t representing them. He said Sandoval’s “arbitrary and capricious enforcement of the law” on the ballot issue was subject to court intervention.

Also during the 40-minute hearing, both attorneys accused the other side of acting on a political agenda. Ferrario, as he’s done before in the case, noted that both Sandoval and Laxalt had opposed expanded background checks.

VanDyke contended that Ferrario was interested in keeping the case moving forward “so they can continue to make baseless factual allegations” against state officials and in support of gun-safety advocates. About a dozen people wearing T-shirts for the advocacy group Moms Demand Action attended the hearing.

“Do not allow your court to be used for purely political purposes,” VanDyke said.

VanDyke referenced a children’s book, “If You Give a Mouse a Cookie,” in urging Hardy to pull the plug on the case. The book features a greedy mouse who, after getting a cookie, asks for milk and hospitalities.

The lawsuit was filed in October 2017 by three proponents of the ballot measure. They contend that implementation is possible in Nevada, as other states have adopted hybrid systems in which some background checks are conducted by state authorities and others by federal officials.