Weighty letter

In the 2016 election, Nevadans enacted a new law providing for background checks on some weapons purchases. It was listed on the ballot as Question One.

The law provides that, of two check systems available—state or federal—the federal system must be used.

The state system is administered by the Nevada Department of Public Safety. We term it Nevada/DPS. The federal system has a name—the National Instant Criminal Background Check System. We call it FBI/NICS

Following the election, on Dec. 14, FBI official Kimberly Del Greco wrote a letter to Julie Butler, an official in the Nevada Public Safety Department. Del Greco’s letter prompted Nevada Attorney General Adam Laxalt to issue an opinion that allowed state officials to ignore passage of Question One. Del Greco’s letter has become of greater interest since the Las Vegas concert killings that left 58 people dead and 546 injured.

A few days after writing the letter, in January, Del Greco was named deputy assistant director of the FBI Criminal Justice Information Services division’s information services branch. She now heads the FBI/NICS.

The letter in some reports (“The FBI Won’t Help Nevada Enforce Its Background Check Law”) was characterized as adversarial toward Nevada, even belligerent, an impression neither Laxalt nor any other local official sought to correct. That impression was created by the last paragraph in the letter: “The recent passage of the Nevada legislation regarding background checks for private sales cannot dictate how federal resources are applied. The position of the NICS section is that these background checks are the responsibility of Nevada to be conducted as any other background check for firearms, through the Nevada DPS.” That impression was also fostered by the language of the AG opinion: “The FBI’s refusal …”

In context, however, the letter was cooperative and offered advice on ways Nevada could go about trying to make the ballot measure work. Because Del Greco did not know the details of Question One, some of her suggestions were not workable, but they indicated the collaborative tone of the letter.

In the letter, Del Greco made a remarkable admission. She wrote that Nevada’s background check system is better than the FBI system.

State and local officials seeking a background check, she wrote “are likely to have readier access to more detailed information for processing background checks than the FBI, thus resulting in fewer system misses of disqualified persons and enhancing system responsiveness for non-qualified persons. The [Nevada officials] have access to more current criminal history records and more data sources—particularly regarding noncriminal disqualifiers such as mental hospital commitments—from their own state than does the FBI, and have a better understanding of their own state laws and disqualifying factors.”

Local laws

Further, Del Greco wrote, “Nevada checks additional databases to include state protection orders, state warrants, state driver’s licenses, parole and probation [reports], and SCOPE (which is Clark County, Las Vegas area records). Also, most of Nevada’s protection orders are not in the National Crime Information Center file, which is important to note since only the [Nevada officials have] access to these protections orders, and if the FBI were processing background checks on private sales of firearms for Nevada, these protection orders would not be part of the NICS check.”

Question One dealt with private sales.

The Nevada/DPS check includes an FBI/NICS check, plus the additional sources listed by Del Greco. Moreover, she said Nevada officials are better able to understand their own legal terrain.

“The state of Nevada can provide a more comprehensive NICS that is accomplished when a [state or local official] accesses state-held databases that are not available to the FBI,” Del Greco wrote. “The Nevada DPS is also in a better position for understanding and applying state laws. It is for these reasons… the state of Nevada will be best suited to conduct the NICS checks for private sales as provided for in [Question One], as opposed to the FBI conducting these checks.”

As though to make Del Greco’s point, she was apparently not aware that Question One bars the state of Nevada from using Nevada/DPS for the checks it requires. Question One, whose text has been removed from the Nevada secretary of state’s website, contains language barring the background checks from being done through “the central repository”—a term for the Nevada/DPS system.

This is a problem that might have been remedied by the 2017 Nevada Legislature, but no effort was made to do so. After the Las Vegas killings, Gov. Brian Sandoval asked Laxalt to consider ways Question One might be implemented. Laxalt on Oct. 21 published a response in the Las Vegas Review-Journal to criticisms he has received as a result of the killings, but did not explain why he did not work with the legislature to find ways to implement the goals of the voter-mandated ballot measure. “Nor is it the attorney general’s job to correct the mistakes of a group of out-of-state activists who designed a poorly written, unenforceable initiative because they couldn’t be bothered to familiarize themselves with either Nevada law or FBI practice before sending it to the ballot,” Laxalt wrote. The ballot measure was placed on the ballot by the signatures of a quarter-million Nevadans.

NBC News has reported that guns sold by New Frontier Armory in North Las Vegas and Guns and Guitars in Mesquite ended up in the collection of the Las Vegas shooter.

“All state and federal laws were followed, and an FBI background check took place and was passed by the buyer,” a New Frontier spokesperson told NBC.

The network, whose journalists found the gun shops, also reported, “Authorities have not said where the weapons were obtained. One possible reason for the delay: The gun-tracing system in the United States relies on paper records and even microfilm. Even though buyers must fill out forms with gun dealers, those records are not fully searchable by computer. Often, investigators tracking a serial number have to start with the manufacturer and manually trace the gun’s history before they arrive at the most current purchase.” At the behest of the gun lobby, Congress has declined to provide funding to make the records of the Bureau of Alcohol, Tobacco, Firearms and Explosives more easily searchable.

Neither Laxalt’s opinion or Nevada Public Safety director James Wright’s request for the opinion record why Del Greco wrote to Nevada in the first place. Butler, who is out of her office this week, got back to us to say, “My office reached out to the FBI after the ballot initiative passed to confirm their stance and asked for their response in writing.”