DISTRICT COURT CLARK COUNTY, NEVADA

Transcription

1 Case Number: A---W PET MARK E. FERRARIO, ESQ. Nevada Bar No. TAMI D. COWDEN, ESQ. Nevada Bar No. GREENBERG TRAURIG, LLP Counsel for Plaintiffs Electronically Filed //0 :0 PM Steven D. Grierson CLERK OF THE COURT GREENBERG TRAURIG, LLP 0 DALE ZUSI, an individual; VICKI DELATORRE, an individual; and SYDNEY GORDON, an individual, v. Plaintiffs, BRIAN SANDOVAL, in his capacity of Governor of the State of Nevada; ADAM LAXALT, in his capacity as Attorney General of the State of Nevada, Defendants. DISTRICT COURT CLARK COUNTY, NEVADA CASE NO. : A---W DEPT. NO.: Department PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF Exempt from Arbitration (Writ Relief Requested, Declaratory Relief Requested) Plaintiffs, DALE ZUSI, an individual, VICKI DELATORRE, an individual, and SYDNEY GORDON, an individual ( Plaintiffs ) by and through counsel, the law firm Greenberg Traurig, LLP, hereby submit their Complaint against Defendant BRIAN SANDOVAL, in his capacity as Governor of the State of Nevada, and Defendant ADAM LAXALT, in his capacity as Attorney General of the State of Nevada, as follows: LV 0v

2 0 INTRODUCTION. This case is about the refusal of the Governor of Nevada to discharge one of his most fundamental constitutional obligations to see that the laws of this state are faithfully executed.. On November, 0, the Nevada voters adopted Ballot Question, the Nevada Background Check Act, requiring background checks on gun sales by unlicensed sellers, thereby closing a dangerous loophole that allowed felons, domestic abusers and other people with dangerous histories to purchase guns from unlicensed sellers without such a check.. Passage of the Background Check Act was the culmination of a four-year process, during which proponents of the law were opposed by Governor Sandoval and Attorney General Laxalt.. The Nevada State Legislature passed legislation in 0 requiring background checks on all firearms sales.. Governor Sandoval then exercised his constitutional power and vetoed the bill.. Blocked by the Governor on the legislative front, the people of Nevada availed themselves of the State s initiative process, collecting,000 registered Nevada voters signatures and qualifying a background check initiative for the ballot.. The Governor and Attorney General publicly opposed the initiative.. The initiative also known as Ballot Question passed with the support of, Nevadans and the Background Check Act became law in Nevada, with an effective date of January, 0.. Regrettably, due to Governor Sandoval s refusal to act and a flawed and incomplete opinion from the Attorney General, the Background Check Act has not been enforced and remains in limbo, contravening the will of the people of Nevada who exercised their constitutional right to change the law to promote public safety and protect the communities of this state.. In fact, while the people of Nevada voted for more background checks on firearms sales, the current status quo has resulted in the opposite fewer background checks than before. This is because, prior to voters approving Question, background checks on guns sold by unlicensed sellers were allowed, but not required. Now, because of the Governor s refusal to act LV 0v

3 0 and the Attorney General s Opinion, all background checks on guns sold by unlicensed sellers have been halted leaving law-abiding citizens who want the assurance of a background check prior to selling a gun to another citizen without any mechanism to obtain one.. Plaintiffs accordingly bring this action seeking a writ of mandamus to compel Governor Sandoval to discharge his constitutional obligation to see that the Background Check Act is faithfully executed.. Alternatively, Plaintiffs seek a declaratory judgment to confirm the changes effected by the Background Check Act or, in the alternative, sever any provisions found to be invalid or unenforceable so that the primary purpose of the Act requiring background checks on virtually all gun sales can be implemented. The Parties. Plaintiff Dale Zusi, one of the nation s first female ROTC scholarship students who served as a U.S. Army Captain, is a resident and taxpayer of Nevada who worked toward passage and voted in favor of Ballot Question. In furtherance of her support of Question, Captain Zusi worked on phone banks, walked in door-to-door campaigns, spoke in favor of the initiative, and served as a poll watcher.. Plaintiff Vicki DeLaTorre is a gun owner, and a resident and taxpayer of Nevada who worked toward passage and voted in favor of Ballot Question. In furtherance of her support of Question, Ms. DeLaTorre worked on phone banks, participated in demonstrations in favor of the initiative, and helped produce mailings in support of the initiative.. Plaintiff Sydney Gordon, a Vietnam era veteran of the U.S. Army and gun owner, is a resident and taxpayer of Clark County, Nevada, who worked toward passage and voted in favor of Ballot Question.. Defendant Brian Sandoval is the Governor of the State of Nevada.. Defendant Adam Laxalt is the Attorney General of the State of Nevada. LV 0v

4 0 GENERAL ALLEGATIONS Federal Background Checks. The Brady Handgun Violence Prevention Act, U.S.C. (t) ( Brady Act ), requires that federally licensed firearms dealers ( FFLs ) contact the National Instant Criminal Background Check System ( NICS ) prior to transferring a firearm to an unlicensed individual, so that a background check can be performed to determine whether the purchaser is prohibited by federal or state law from possessing a firearm.. While the Brady Act contains no such requirement for transfers by unlicensed sellers, many states have enacted laws supplementing the Brady Act to require background checks on guns sales by unlicensed sellers. Through passage of the Background Check Act in 0, Nevada s voters added this state to the list of jurisdictions that had acted to close this loophole. 0. Under the Brady Act, each state has the option of electing to have the required background checks performed either: () directly by the NICS Section at the FBI using the federal NICS databases; or () by a state Point of Contact ( POC ) that can check state databases as well as the federal NICS databases.. The NICS website thus explains that [e]ach state decides whether the FFLs in its state call a state POC or the FBI to initiate firearm background checks.. The relevant federal regulation, C.F.R.., leaves to each state broad discretion to establish a POC pursuant to state law, defining the term POC as an agency with express or implied authority to perform POC duties pursuant to state statute, regulation, or executive order.. Pursuant to C.F.R..(a), once a state has chosen whether or not to act as a POC, federal regulations direct the Bureau of Alcohol, Tobacco, Firearms and Explosives ( ATF ) to notify FFLs in that state whether to initiate NICS background checks by contacting either the NICS Section or the state POC.. According to the ATF website, states/territories have chosen not to participate as a POC, meaning all gun background checks for those states are done directly by the FBI s NICS Section; states have elected full-poc status, meaning all gun background checks in the state are LV 0v

5 0 done through the state POC; and nine states have elected partial-poc status, meaning background checks for certain types of firearm transactions are done through the state POC while checks on other categories of transactions are done directly through the NICS Section. Background Checks in Nevada. In, through actions authorized by Governor Bob Miller, Nevada elected to do all required background checks on firearm sales by FFLs through a state POC, specifically, the Nevada Department of Public Safety ( DPS ) Central Repository ( Central Repository ).. At that time, and up until January, 0, Nevada did not require, but did allow background checks on guns sold by unlicensed sellers; these optional checks were performed by the DPS Central Repository as well. The Successful Ballot Initiative. Ballot Question included the following declaration by the People of Nevada: The People of Nevada do hereby find and declare that:. To promote public safety, federal law currently prohibits felons, domestic abusers, the severely mentally ill, and other dangerous people from buying or possessing firearms;. Federally licensed firearms dealers are required to run background checks on their prospective buyers to ensure they are not prohibited from buying or possessing firearms;. Criminals and other dangerous people can avoid background checks by buying guns from unlicensed firearms sellers, whom they can easily meet online or at gun shows and who are not legally required to run background checks before selling or transferring firearms;. Due to this loophole, millions of guns exchange hands each year in the United States without a background check;. The background check process is quick and convenient: Over 0% of federal background checks are completed instantaneously and over % of Nevadans live within miles of a licensed gun dealer;. We have the right to bear arms, but with rights come responsibilities, including the responsibility to keep guns out of the hands of convicted felons and domestic abusers; ATF website: Permanent Brady State Lists available at LV 0v

6 0. To promote public safety and protect our communities, and to create a fair, level playing field for all gun sellers, the people of Nevada find it necessary to more effectively enforce current law prohibiting dangerous persons from purchasing and possessing firearms by requiring background checks on all firearms sales and transfers, with reasonable exceptions, including for immediate family members, hunting, and self-defense. Question,.. As stated repeatedly in the informational materials sent to voters by the Secretary of State in advance of election day, the central purpose of Question was to close the dangerous loophole posed by sales from unlicensed dealers by prohibit[ing], except in certain circumstances, any person who is not a licensed dealer, importer or manufacturer of firearms from selling or transferring a firearm to another unlicensed person unless a licensed dealer first conducts a background check on the buyer or transferee. (Statewide Ballot Questions 0, at -.). Thus, the question appearing on the ballot for voters to decide was similarly framed as: Shall Chapter 0 of the Nevada Revised Statutes be amended to prohibit, except in certain circumstances, a person from selling or transferring a firearm to another person unless a federallylicensed dealer first conducts a federal background check on the potential buyer or transferee? 0. The ballot initiative informational materials sent to voters included additional details about the proposed change to the law set out in Question, including that the newlyrequired background checks on guns sold by unlicensed sellers would be conducted by dealers contacting the FBI s NICS Section directly (as opposed to guns sold by licensed dealers, for which the background checks are done by the dealer contacting the state POC (the DPS Central Repository)) and that the licensed dealer could charge a reasonable fee for facilitating the transfer between unlicensed seller and buyer. (Id. at -.). Voters were also told in these materials that the fiscal impact of Question could not be determined, because [t]he Department of Public Safety has indicated that passage of Question would require a renegotiation of POC status or the development of an alternative agreement with the FBI in order to accommodate the provisions of the question. (Id. at - ( Fiscal Note ).) LV 0v

7 0. A majority of Nevada voters voted in favor of Question, thereby enacting, in full, the Background Check Act.. By enacting the Background Check Act, Nevada declared its public policy that background checks on all firearms sales and transfers, with reasonable exceptions, are necessary to promote public safety, to protect Nevada communities, and to create a fair, level-playing field for all gun sellers.. The ATF similarly recognizes that background checks on firearms sold by unlicensed sellers (like background checks on guns sold by licensed dealers) can enhance public safety, assist law enforcement, and help ensure firearms end up only in the hands of those who are legally allowed to possess them.. The Background Check Act amended NRS 0., which now reads, in pertinent part:. Except as otherwise provided in section of this act, an unlicensed person shall not sell or transfer a firearm to another unlicensed person unless a licensed dealer first conducts a background check on the buyer or transferee in compliance with this section.. The seller or transferor and buyer or transferee shall appear jointly with the firearm and request that a licensed dealer conduct a background check on the buyer or transferee.. A licensed dealer who agrees to conduct a background check pursuant to this section shall take possession of the firearm and comply with all requirements of federal and state law as though the licensed dealer were selling or transferring the firearm from his or her own inventory to the buyer or transferee, including, but not limited to, all recordkeeping requirements, except that: (a) The licensed dealer must contact the National Instant Criminal Background Check System, as described in U.S.C. (t), and not the Central Repository, to determine whether the buyer or transferee is eligible to purchase and possess firearms under state and federal law; and (b) The seller or transferor may remove the firearm from the business premises while the background check is being conducted, provided that before the seller or transferor sells or transfers the firearm to the buyer or transferee, the seller or transferor and the buyer or transferee shall return to the licensed dealer who shall again take possession of the firearm prior to the completion of the sale or transfer. ATF Proc. 0-, Recordkeeping and background check procedures for facilitation of private party firearms transfers; ATF, Facilitating Private Sales: A Federal Firearms Licensee Guide, at. LV 0v

8 0 NR 0... A licensed dealer who agrees to conduct a background check pursuant to this section shall inform the seller or transferor and the buyer or transferee of the response from the National Instant Criminal Background Check System. If the response indicates that the buyer or transferee is ineligible to purchase or possess the firearm, the licensed dealer shall return the firearm to the seller or transferor and the seller or transferor shall not sell or transfer the firearm to the buyer or transferee.. Thus, in addition to accomplishing its central purpose of requiring background checks on guns sold by unlicensed sellers, Nevada law now provides that FFLs who agree to facilitate a firearm transfer between private persons must contact the FBI s NICS Section, and not the state POC (the Central Repository at DPS), to carry out the required background check.. The new law did not change the mechanism for background checks on sales by FFLs, which continue to be done by the FFL contacting the state POC.. The Background Check Act also included the following section: Sec.. If any provisions of this act, or the application thereof to any person, thing or circumstance, is held invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of this act as a whole, or any provision or application which can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this act are declared to be severable. The Attorney General Opinion. On December, 0, following a request for an opinion from DPS, Attorney General Adam Laxalt issued a legal opinion declaring the Background Check Law unenforceable. 0. His opinion cited a December, 0, letter from the FBI s NICS Section to DPS, in which the NICS Section stated that it would not conduct the newly required background checks on private sales in Nevada because Nevada had elected to be a full POC state back in.. According to the Attorney General s Opinion, The FBI s refusal to carry out the central function required by the [Background Check Law] effectuates an unconditional ban, at present, on all private firearm sales or transfers in Nevada. The Background Check Act included certain exceptions to this requirement not relevant to this litigation. LV 0v

9 0. Notably, the Attorney General s Opinion accepted the FBI s position regarding Nevada s POC status without attempting any analysis of whether that position was justified, including a failure to consider whether the passage of the Background Check Law in 0 had changed Nevada from a full- to a partial-poc state and the role of the Nevada state executive branch in communicating, confirming, and implementing such a change.. While the opinion does expressly acknowledge the possibility that the FBI could change its mind, there is no discussion of what Nevada officials could do to effectuate such a change so that the Background Check Law could be implemented. Nor is there any acknowledgment in the Attorney General Opinion that DPS expected that passage of Question would require a renegotiation of POC status or the development of an alternative arrangement with the FBI in order to accommodate the provisions of the question (as voters were told would be necessary) or any recommendation that the Governor and/or DPS engage in such renegotiation.. The Attorney General s Opinion is not a mere advisory opinion, but is instead a statement that, while not binding on courts or government agencies, must be regarded as having a quasi- judicial character.. Upon information and belief, due to its reliance on the Attorney General Opinion, the Nevada Department of Public Safety and other law enforcement agencies in Nevada have declined to enforce the requirement of NRS 0., as amended by the Background Check Act, that there be a background check on all private firearm sales (with certain limited exceptions).. Upon information and belief, but for the existence of the Attorney General Opinion, law enforcement agencies in Nevada would presume NRS 0. as amended by the Background Check Act to be constitutional and would enforce it or at least take all reasonable steps to do so as they do other valid statutory provisions. Public Records Requests and The Governor s Failure to Act to Enforce Nevada s Laws. Following the issuance of the Attorney General Opinion, in February 0, the sponsors of Question, Nevadans for Background Checks, issued public records requests to the various Nevada government agencies referenced above, seeking, among other things, information LV 0v

10 0 about what steps (if any) the State had taken to implement the new law. Responses to these requests and supplemental requests were exchanged through April 0.. In May and June 0, based in part on records received from these public records requests, the undersigned counsel for Nevadans for Background Checks met in person with Governor Sandoval s then-counsel to urge implementation of the Background Check Act, and followed up that meeting with preparation of a detailed Legal Memorandum that was submitted to Governor Sandoval for his review.. The Legal Memorandum set forth a detailed analysis of why the FBI s position regarding Nevada s current POC status was erroneous and the constitutional duty of the Governor to inform the FBI that Nevada s POC status had changed, as described above. 0. The Legal Memorandum emphasized that the determination of a state s POC status lies wholly within the power and authority of the state, citing C.F.R.. s definition of a POC as an agency with express or implied authority to perform POC duties pursuant to state statute, regulation, or executive order.. The Legal Memorandum further explained that documents obtained through the public records requests indicated that as DPS had anticipated NICS appeared to be waiting on some official action from Governor Sandoval before it would consider acting to implement the change in Nevada s POC status.. Additionally, Governor Sandoval was informed that other states have changed their POC status as follows: a. In 000, Oregon voters approved a ballot initiative that changed that state s POC status from partial to full. Specifically, prior to the approval of the amendment, FFLs in Oregon were required to contact a state agency for background checks for handgun sales, and the FBI s NICS Section for long gun sales. The 000 initiative directed FFLs to contact the POC for the sale of both handguns and long guns. Within weeks of voter approval, both the NICS Section and ATF recognized that through the voter initiative, Oregon had changed from a partial POC to a full POC state. LV 0v

11 0 b. Between and 00, South Carolina, Vermont, Arizona, Indiana, and Georgia all chose to cease operating as POCs and instead to have the NICS Section conduct all background checks on gun sales in their states. In each case, NICS accepted the change and ATF promptly notified FFLs in the state that they should begin contacting the NICS Section for background checks instead of the state POC. c. Colorado has twice changed its POC status. In March, it ceased its partial POC operation and became a non-poc state, but shortly thereafter changed course and resumed operations, this time as a full POC state.. Governor Sandoval was further informed that, while DPS had long contemplated that the kind of change in Nevada law effected by Question might alter Nevada s POC status from full to partial (a possibility that was determined would be revenue neutral), following passage of the Background Check Act in November 0, DPS only presented the Governor with a false binary choice: to remain a full POC state or to completely decommission the POC program (such that all Nevada background checks, on both dealer and unlicensed sales, would be conducted by NICS). The partial POC option, which DPS had discussed with the NICS Section and which voters were told was a possibility in the Fiscal Note circulated by the Secretary of State in advance of the vote on Question, was not in any way acknowledged or presented for the Governor s consideration.. However, despite being advised that the FBI continues to believe, erroneously, that Nevada has maintained its full POC status, and despite being advised that there was a third option beyond the two choices that DPS had presented to him and that it was his duty as Nevada s chief executive to confirm to the FBI Nevada s change in status so the new law could be implemented, Governor Sandoval has failed to take any action to confirm Nevada s change to partial status, correct the FBI s inaccurate understanding of the current state of Nevada law, and/or renegotiate Nevada s POC status as the voters were told would be necessary.. Nor has Governor Sandoval taken any other action to cause the Background Check Act to be enforced as mandated by Nevada voters. LV 0v

12 0. On September, 0, the undersigned counsel sent the Governor a letter on behalf of Nevadans for Background Checks, urging that he take such action immediately to avoid a lawsuit seeking to compel him to do so.. The Governor did not respond to this demand letter until public attention was drawn to the failure to implement the Background Check Act following the horrific and tragic mass shooting in Las Vegas on October, 0.. But even then, the Governor continued to refuse to reach out to the FBI, choosing instead to write to Attorney General Laxalt on October, 0, seeking clarification of the Attorney General s earlier Opinion as to the possibility never mentioned in that Opinion that Nevada could change its status to a partial POC state.. In response to this letter, the undersigned pointed out that Nevada had already changed to a partial POC state by passing Question, there is nothing preventing the Governor from reaching out directly to the FBI NICS Section, and no further opinion of the Attorney General is required in order for the Governor to carry out his constitutional obligation to implement the Background Check Act and see that this important public safety law is faithfully executed. 0. As of the date of the filing of this lawsuit, it appears that no further action has been taken by the Governor or the Attorney General.. Ironically, and as noted above, while Nevadans voted in November 0 to expand the number and type of gun sales that are subject to background checks in the state, because the Attorney General s Opinion erroneously accepted the FBI s assertion as to Nevada s POC status, and the Governor has failed to take action to correct that assessment, the result has been the opposite fewer background checks and thus a greater risk to public safety. FIRST CAUSE OF ACTION Mandamus. Plaintiffs repeat the allegations of Paragraphs - as though set forth herein in their entirety.. As Governor of the State, Defendant Sandoval is constitutionally required to see that the laws of Nevada are faithfully executed. Nev. Const. Art.,. LV 0v

13 0. Defendant Sandoval has failed to see to the faithful execution of the Background Check Act.. Defendant Sandoval also has acted arbitrarily and capriciously in not taking the steps necessary to enforce this law.. As citizens and taxpayers of the State of Nevada, Plaintiffs are entitled to a writ of mandamus directing the Governor to comply with his constitutional obligation to see to the faithful execution of the Background Check Act, including directing the Governor to: (a) confirm to the FBI s NICS Section Nevada s election of partial POC status; and (b) take whatever reasonable steps are necessary to implement the law. SECOND CAUSE OF ACTION Declaratory Relief. Plaintiffs repeat the allegations of Paragraphs - as though set forth herein in their entirety.. Under NRS.0.0 et seq., the Uniform Declaratory Judgment Act, any person whose rights, status or other legal relations are affected by a statute may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.. Plaintiffs rights as citizens and taxpayers of this State to have laws adopted by the majority of voters enforced are a legally protectable interest in the controversy, particularly where Plaintiffs played an active role to support passage of the law. 0. Additionally, the rights, status, and/or legal relations of Plaintiffs are affected by NRS 0., as amended by Question, as Plaintiffs are: (a) subjected to a less safe community as a result of the non-enforcement of NRS 0.; and (b) unable to obtain a background check in connection with any future private transfer of a firearm.. A justiciable controversy exists as Plaintiffs seek to have NRS 0. enforced, while Defendant Laxalt has issued an Attorney General Opinion holding that NRS 0. is unenforceable. LV 0v

14 0. The issue involved in the controversy is ripe for judicial determination because there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.. Accordingly, Plaintiffs are entitled to a declaratory judgment that: a. Nevada has elected partial POC status, such that the required background checks for unlicensed sales of firearms are to be conducted by the FFL contacting the NICS Section directly, whereas for sales of firearms by FFLs, the required background checks will continue to be carried out by the FFL contacting the state POC (the Central Repository at DPS); and b. NRS 0. is valid and enforceable as written.. Or, in the alternative, to the extent and for so long as the Court determines that NRS 0. as amended by Question is impossible to enforce as a matter of Nevada law and is therefore invalid, and pursuant to the severability mandate in Section of the Background Check Act, the Court should declare that: a. NRS 0.()(a) is severed, to give effect to the central purpose of the Background Check Act closing the dangerous loophole for unlicensed sales; b. as a conforming change, the language from the National Instant Criminal Background Check System is severed from NRS 0.(); and that c. the unsevered portions of NRS 0 are valid and enforceable. WHEREFORE, Plaintiffs pray for relief as follows:. For a Writ of Mandamus as set forth above;. In the alternative, for Declaratory Relief, as set forth above;. For an award of costs and reasonable attorney s fees; and. For such other and further relief that the Court deems just and proper. DATED this th day of October, 0. GREENBERG TRAURIG, LLP /s/ Mark E. Ferrario MARK E. FERRARIO, ESQ. (NBN: ) TAMI D. COWDEN, ESQ. (NBN: ) Howard Hughes Pkwy., Suite 00 N Las Vegas, NV Counsel for Plaintiffs LV 0v