Lawsuit challenges background check initiative’s wording

The head of a Nevada gun rights group is suing to challenge the wording on an initiative that would require background checks on firearms sold between private parties.

The lawsuit — linked below — seeks to change the wording of the description of effect, which is included at the top of every signature page of the petition. It objects to language it claims is argumentative and an omission it claims is misleading.

The lead plaintiff is Don Turner, president of the Nevada Firearms Coalition.

The Background Check Initiative would essentially require the same background checks conducted now by licensed gun dealers be extended to cover gun sales between private parties. State law currently mandates background checks for the customers of licensed firearms dealers, but not for private-party sales, where checks are allowed but not required.

First, the lawsuit objects to this line in the petition’s description of effect: “Under current law, federally licensed gun dealers are required to perform criminal and public safety background checks on buyers before transferring guns to them. However, due to a loophole in the law, a background check is not required when a person obtains a gun from an unlicensed seller, making it easier for felons, domestic abusers, and other dangerous people to buy guns.”

According to the lawsuit, “That description misrepresents the facts. A ‘loophole’ is an ambiguity or omission in the text through which the intent of a statute may be evaded. … The Legislature directly considered the text during its most recent [2013] legislative session. Therefore, to refer to the law’s failure to mandate background checks for private-party transactions would mislead voters into thinking that the Legislature intended to make mandatory background checks the law, but somehow erred and failed to accomplish this objective.”

In fact, the Legislature did intended to make mandatory background checks the law, and passed a bill to do just that, which bill was vetoed by Gov. Brian Sandoval, for reasons all his own. The fact is, the lack of a requirement for background checks for gun sales between private parties is often referred to as “the gun-show loophole,” since many of these sales take place at those events.

Webster’s New World Dictionary (3rd College Ed.) defines “loophole,” as “a means of escape; especially a means of evading or escaping an obligation, enforcement of a law or contract, etc.” It could be argued a person wishing to purchase a firearm who knows he is unable to pass a background check (by reason of criminal history or documented mental illness) might seek to evade or escape the requirements of the law by seeking an unchecked private-party sale, thus availing himself of a loophole. But it could also be argued that, since existing law by its own plain language does not design to require background checks for private-party sales, the word is misused in the initiative’s description of effect.

The plaintiffs also object to the phrase “…making it easier for felons, domestic abusers, and other dangerous people to buy guns.” Although this is unquestionably accurate, the plaintiffs say it’s argumentative. “It appears that the preceding phrase is included for the purpose of arguing for the need to change the law,” the lawsuit reads. “The Nevada Supreme Court has stated that ‘the description of effect does not need to explain ‘hypothetical’ effects of an initiative. … This argumentative language should be deleted.”

Second, the lawsuit says the description of effect is misleading in that it fails to give voters notice that it is replacing language that allows a background check with language that requires a background check, and imposes criminal penalties for failing to do so.

“The present argumentative language in the description of effect should be replaced with language informing the voters that the new statute imposes criminal penalties up to a category C felony for its violation, even for sales between law-abiding citizens,” the lawsuit reads. “Currently, the description of effect does not mention that it amends NRS Chapter 202, Crimes Against Public Health and Safety, nor does it inform the voters that it criminalized formerly voluntary conduct. The imposition of new criminal penalties through the initiative process should be preceded by fair warning to all voting for and against it.”

That language — admittedly appearing in a pleading that seeks to persuade a judge — is just as argumentative as that it accuses The Background Check Initiative of using. And it’s certainly prejudicial to the proponents’ case. But it’s entirely foreseeable that whichever judge in Carson City District Court gets the case would order that proponents include a line noting that violations of the proposed law would carry criminal penalties.

Proponents will have a chance to file a response before a hearing is held on the matter, usually within two weeks. If any change is made to the wording, any signatures gathered on the current version of the petition must be discarded in favor of petition pages bearing the new language.