Electronically Filed

10/12/2017 12:40 PM
Steven D. Grierson
CLERK OF THE COURT
1 PET
MARK E. FERRARIO, ESQ.
2 Nevada Bar No. 1625
TAMI D. COWDEN, ESQ.
3
Nevada Bar No. 8994
4 GREENBERG TRAURIG, LLP
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5 Suite 400 North
Las Vegas, Nevada 89169
6 Telephone: (702) 792-3773
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7
Email: ferrariom@gtlaw.com
8 cowdent@gtlaw.com

9 Counsel for Plaintiffs

10
DISTRICT COURT
11
CLARK COUNTY, NEVADA
12
DALE ZUSI, an individual; VICKI CASE NO. :A-17-762975-W
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13
Facsimile: (702) 792-9002
Telephone: (702) 792-3773
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DELATORRE, an individual; and SYDNEY DEPT. NO.: Department 24

GORDON, an individual,
Suite 400 North

14

15 Plaintiffs, PETITION FOR WRIT OF

MANDAMUS AND COMPLAINT
16 v. FOR DECLARATORY RELIEF
17 BRIAN SANDOVAL, in his capacity of Exempt from Arbitration
18 Governor of the State of Nevada; ADAM
LAXALT, in his capacity as Attorney General (Writ Relief Requested, Declaratory Relief
19 of the State of Nevada, Requested)

20 Defendants.
21

22 Plaintiffs, DALE ZUSI, an individual, VICKI DELATORRE, an individual, and SYDNEY

23 GORDON, an individual (Plaintiffs) by and through counsel, the law firm Greenberg Traurig,

24 LLP, hereby submit their Complaint against Defendant BRIAN SANDOVAL, in his capacity as

25 Governor of the State of Nevada, and Defendant ADAM LAXALT, in his capacity as Attorney

26 General of the State of Nevada, as follows:

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28

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LV 420997444v1

Case Number: A-17-762975-W

 1 INTRODUCTION
2 1. This case is about the refusal of the Governor of Nevada to discharge one of his most

3 fundamental constitutional obligations to see that the laws of this state are faithfully executed.

4 2. On November 8, 2016, the Nevada voters adopted Ballot Question 1, the Nevada

5 Background Check Act, requiring background checks on gun sales by unlicensed sellers, thereby

6 closing a dangerous loophole that allowed felons, domestic abusers and other people with dangerous

7 histories to purchase guns from unlicensed sellers without such a check.

8 3. Passage of the Background Check Act was the culmination of a four-year process,

9 during which proponents of the law were opposed by Governor Sandoval and Attorney General

10 Laxalt.

11 4. The Nevada State Legislature passed legislation in 2013 requiring background

12 checks on all firearms sales.

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13 5. Governor Sandoval then exercised his constitutional power and vetoed the bill.
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14 6. Blocked by the Governor on the legislative front, the people of Nevada availed

15 themselves of the States initiative process, collecting 247,000 registered Nevada voters signatures

16 and qualifying a background check initiative for the ballot.

17 7. The Governor and Attorney General publicly opposed the initiative.

18 8. The initiative also known as Ballot Question 1 passed with the support of

19 558,631 Nevadans and the Background Check Act became law in Nevada, with an effective date

20 of January 1, 2017.
21 9. Regrettably, due to Governor Sandovals refusal to act and a flawed and incomplete
22 opinion from the Attorney General, the Background Check Act has not been enforced and remains
23 in limbo, contravening the will of the people of Nevada who exercised their constitutional right to
24 change the law to promote public safety and protect the communities of this state.
25 10. In fact, while the people of Nevada voted for more background checks on firearms

26 sales, the current status quo has resulted in the opposite fewer background checks than before.

27 This is because, prior to voters approving Question 1, background checks on guns sold by

28 unlicensed sellers were allowed, but not required. Now, because of the Governors refusal to act

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 1 and the Attorney Generals Opinion, all background checks on guns sold by unlicensed sellers have

2 been halted leaving law-abiding citizens who want the assurance of a background check prior to

3 selling a gun to another citizen without any mechanism to obtain one.

4 11. Plaintiffs accordingly bring this action seeking a writ of mandamus to compel

5 Governor Sandoval to discharge his constitutional obligation to see that the Background Check Act

6 is faithfully executed.

7 12. Alternatively, Plaintiffs seek a declaratory judgment to confirm the changes effected

8 by the Background Check Act or, in the alternative, sever any provisions found to be invalid or

9 unenforceable so that the primary purpose of the Act requiring background checks on virtually all

10 gun sales can be implemented.

11 The Parties
12 13. Plaintiff Dale Zusi, one of the nations first female ROTC scholarship students who
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13 served as a U.S. Army Captain, is a resident and taxpayer of Nevada who worked toward passage
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14 and voted in favor of Ballot Question 1. In furtherance of her support of Question 1, Captain Zusi

15 worked on phone banks, walked in door-to-door campaigns, spoke in favor of the initiative, and

16 served as a poll watcher.

17 14. Plaintiff Vicki DeLaTorre is a gun owner, and a resident and taxpayer of Nevada

18 who worked toward passage and voted in favor of Ballot Question 1. In furtherance of her support

19 of Question 1, Ms. DeLaTorre worked on phone banks, participated in demonstrations in favor of

20 the initiative, and helped produce mailings in support of the initiative.

21 15. Plaintiff Sydney Gordon, a Vietnam era veteran of the U.S. Army and gun owner, is
22 a resident and taxpayer of Clark County, Nevada, who worked toward passage and voted in favor of
23 Ballot Question 1.
24 16. Defendant Brian Sandoval is the Governor of the State of Nevada.
25 17. Defendant Adam Laxalt is the Attorney General of the State of Nevada.

26 ///

27 ///

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 1 GENERAL ALLEGATIONS
2 Federal Background Checks
3 18. The Brady Handgun Violence Prevention Act, 18 U.S.C. 922(t) (Brady Act),

4 requires that federally licensed firearms dealers (FFLs) contact the National Instant Criminal

5 Background Check System (NICS) prior to transferring a firearm to an unlicensed individual, so

6 that a background check can be performed to determine whether the purchaser is prohibited by

7 federal or state law from possessing a firearm.

8 19. While the Brady Act contains no such requirement for transfers by unlicensed

9 sellers, many states have enacted laws supplementing the Brady Act to require background checks

10 on guns sales by unlicensed sellers. Through passage of the Background Check Act in 2016,

11 Nevadas voters added this state to the list of jurisdictions that had acted to close this loophole.

12 20. Under the Brady Act, each state has the option of electing to have the required
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13 background checks performed either: (1) directly by the NICS Section at the FBI using the federal
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14 NICS databases; or (2) by a state Point of Contact (POC) that can check state databases as well as

15 the federal NICS databases.

16 21. The NICS website thus explains that [e]ach state decides whether the FFLs in its

17 state call a state POC or the FBI to initiate firearm background checks.

18 22. The relevant federal regulation, 28 C.F.R. 25.2, leaves to each state broad

19 discretion to establish a POC pursuant to state law, defining the term POC as an agency with

20 express or implied authority to perform POC duties pursuant to state statute, regulation, or

21 executive order.

22 23. Pursuant to 28 C.F.R. 25.6(a), once a state has chosen whether or not to act as a

23 POC, federal regulations direct the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)

24 to notify FFLs in that state whether to initiate NICS background checks by contacting either the

25 NICS Section or the state POC.

26 24. According to the ATF website, 33 states/territories have chosen not to participate as

27 a POC, meaning all gun background checks for those states are done directly by the FBIs NICS

28 Section; 12 states have elected full-POC status, meaning all gun background checks in the state are

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 1 done through the state POC; and nine states have elected partial-POC status, meaning background

2 checks for certain types of firearm transactions are done through the state POC while checks on

3 other categories of transactions are done directly through the NICS Section. 1

4 Background Checks in Nevada

5 25. In 1998, through actions authorized by Governor Bob Miller, Nevada elected to do

6 all required background checks on firearm sales by FFLs through a state POC, specifically, the

7 Nevada Department of Public Safety (DPS) Central Repository (Central Repository).

8 26. At that time, and up until January 1, 2017, Nevada did not require, but did allow

9 background checks on guns sold by unlicensed sellers; these optional checks were performed by the

10 DPS Central Repository as well.

11 The Successful Ballot Initiative

12 27. Ballot Question 1 included the following declaration by the People of Nevada:
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13 The People of Nevada do hereby find and declare that:

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14 1. To promote public safety, federal law currently prohibits felons,

domestic abusers, the severely mentally ill, and other dangerous people from
15 buying or possessing firearms;
16 2. Federally licensed firearms dealers are required to run background
checks on their prospective buyers to ensure they are not prohibited from buying
17
or possessing firearms;
18
3. Criminals and other dangerous people can avoid background checks by
19 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
20 selling or transferring firearms;
21 4. Due to this loophole, millions of guns exchange hands each year in the
United States without a background check;
22

23 5. The background check process is quick and convenient: Over 90% of

federal background checks are completed instantaneously and over 97% of
24 Nevadans live within 10 miles of a licensed gun dealer;

25 6. 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
26 domestic abusers;
27
1
28 ATF website: Permanent Brady State Lists available at https://www.atf.gov/rules-and-regulations/permanent-brady-
state-lists.

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 1 7. 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
2 to more effectively enforce current law prohibiting dangerous persons from
purchasing and possessing firearms by requiring background checks on all
3
firearms sales and transfers, with reasonable exceptions, including for immediate
4 family members, hunting, and self-defense.

5 Question 1, 2.

6 28. As stated repeatedly in the informational materials sent to voters by the Secretary of
7 State in advance of election day, the central purpose of Question 1 was to close the dangerous
8 loophole posed by sales from unlicensed dealers by prohibit[ing], except in certain circumstances,
9 any person who is not a licensed dealer, importer or manufacturer of firearms from selling or
10 transferring a firearm to another unlicensed person unless a licensed dealer first conducts a
11 background check on the buyer or transferee. (Statewide Ballot Questions 2016, at 2-3.)
12 29. Thus, the question appearing on the ballot for voters to decide was similarly framed
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13 as: Shall Chapter 202 of the Nevada Revised Statutes be amended to prohibit, except in certain
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14 circumstances, a person from selling or transferring a firearm to another person unless a federally-
15 licensed dealer first conducts a federal background check on the potential buyer or transferee?
16 30. The ballot initiative informational materials sent to voters included additional
17 details about the proposed change to the law set out in Question 1, including that the newly-
18 required background checks on guns sold by unlicensed sellers would be conducted by dealers
19 contacting the FBIs NICS Section directly (as opposed to guns sold by licensed dealers, for
20 which the background checks are done by the dealer contacting the state POC (the DPS Central
21 Repository)) and that the licensed dealer could charge a reasonable fee for facilitating the transfer
22 between unlicensed seller and buyer. (Id. at 3-4.)
23 31. Voters were also told in these materials that the fiscal impact of Question 1 could
24 not be determined, because [t]he Department of Public Safety has indicated that passage of
25 Question 1 would require a renegotiation of POC status or the development of an alternative
26 agreement with the FBI in order to accommodate the provisions of the question. (Id. at 9-19
27 (Fiscal Note).)
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 1 32. A majority of Nevada voters voted in favor of Question 1, thereby enacting, in full,

2 the Background Check Act.

3 33. By enacting the Background Check Act, Nevada declared its public policy that

4 background checks on all firearms sales and transfers, with reasonable exceptions, are necessary to

5 promote public safety, to protect Nevada communities, and to create a fair, level-playing field for

6 all gun sellers.

7 34. The ATF similarly recognizes that background checks on firearms sold by

8 unlicensed sellers (like background checks on guns sold by licensed dealers) can enhance public

9 safety, assist law enforcement, and help ensure firearms end up only in the hands of those who are

10 legally allowed to possess them. 2

11 35. The Background Check Act amended NRS 202.254, which now reads, in pertinent part:

12 1. Except as otherwise provided in section 5 of this act, an unlicensed

person shall not sell or transfer a firearm to another unlicensed person unless a
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13
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licensed dealer first conducts a background check on the buyer or transferee in

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compliance with this section.

Suite 400 North

14

15 2. 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
16 buyer or transferee.
17 3. A licensed dealer who agrees to conduct a background check pursuant
to this section shall take possession of the firearm and comply with all
18
requirements of federal and state law as though the licensed dealer were selling or
19 transferring the firearm from his or her own inventory to the buyer or transferee,
including, but not limited to, all recordkeeping requirements, except that:
20
(a) The licensed dealer must contact the National Instant Criminal
21 Background Check System, as described in 18 U.S.C. 922(t), and not the
22 Central Repository, to determine whether the buyer or transferee is eligible to
purchase and possess firearms under state and federal law; and
23
(b) The seller or transferor may remove the firearm from the business
24 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
25 or transferor and the buyer or transferee shall return to the licensed dealer who shall
26 again take possession of the firearm prior to the completion of the sale or transfer.

27
2
28 ATF Proc. 2013-1, Recordkeeping and background check procedures for facilitation of private party firearms
transfers; ATF, Facilitating Private Sales: A Federal Firearms Licensee Guide, at 2.

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 1 4. 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
2 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
3
firearm, the licensed dealer shall return the firearm to the seller or transferor and the
4 seller or transferor shall not sell or transfer the firearm to the buyer or transferee.

5 NR 202.254. 3

6 36. Thus, in addition to accomplishing its central purpose of requiring background

7 checks on guns sold by unlicensed sellers, Nevada law now provides that FFLs who agree to

8 facilitate a firearm transfer between private persons must contact the FBIs NICS Section, and not

9 the state POC (the Central Repository at DPS), to carry out the required background check.

10 37. The new law did not change the mechanism for background checks on sales by

11 FFLs, which continue to be done by the FFL contacting the state POC.

12 38. The Background Check Act also included the following section:
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Sec. 8. If any provisions of this act, or the application thereof to any person,
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13
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thing or circumstance, is held invalid or unconstitutional by a court of competent

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14 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
15 be given effect without the invalid or unconstitutional provision or application,
16 and to this end the provisions of this act are declared to be severable.

17 The Attorney General Opinion

18 39. On December 28, 2016, following a request for an opinion from DPS, Attorney

19 General Adam Laxalt issued a legal opinion declaring the Background Check Law unenforceable.

20 40. His opinion cited a December 14, 2016, letter from the FBIs NICS Section to DPS,

21 in which the NICS Section stated that it would not conduct the newly required background checks

22 on private sales in Nevada because Nevada had elected to be a full POC state back in 1998.

23 41. According to the Attorney Generals Opinion, The FBIs refusal to carry out the

24 central function required by the [Background Check Law] effectuates an unconditional ban, at

25 present, on all private firearm sales or transfers in Nevada.

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27
3
28 The Background Check Act included certain exceptions to this requirement not relevant to this litigation.

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 1 42. Notably, the Attorney Generals Opinion accepted the FBIs position regarding

2 Nevadas POC status without attempting any analysis of whether that position was justified,

3 including a failure to consider whether the passage of the Background Check Law in 2016 had

4 changed Nevada from a full- to a partial-POC state and the role of the Nevada state executive

5 branch in communicating, confirming, and implementing such a change.

6 43. While the opinion does expressly acknowledge the possibility that the FBI could

7 change its mind, there is no discussion of what Nevada officials could do to effectuate such a

8 change so that the Background Check Law could be implemented. Nor is there any

9 acknowledgment in the Attorney General Opinion that DPS expected that passage of Question 1

10 would require a renegotiation of POC status or the development of an alternative arrangement with

11 the FBI in order to accommodate the provisions of the question (as voters were told would be

12 necessary) or any recommendation that the Governor and/or DPS engage in such renegotiation.
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13 44. The Attorney Generals Opinion is not a mere advisory opinion, but is instead a
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14 statement that, while not binding on courts or government agencies, must be regarded as having a

15 quasi- judicial character.

16 45. Upon information and belief, due to its reliance on the Attorney General Opinion, the

17 Nevada Department of Public Safety and other law enforcement agencies in Nevada have declined

18 to enforce the requirement of NRS 202.254, as amended by the Background Check Act, that there

19 be a background check on all private firearm sales (with certain limited exceptions).

20 46. Upon information and belief, but for the existence of the Attorney General Opinion,
21 law enforcement agencies in Nevada would presume NRS 202.254 as amended by the Background
22 Check Act to be constitutional and would enforce it or at least take all reasonable steps to do so
23 as they do other valid statutory provisions.
24 Public Records Requests and The Governors Failure to Act to Enforce Nevadas Laws
25 47. Following the issuance of the Attorney General Opinion, in February 2017, the

26 sponsors of Question 1, Nevadans for Background Checks, issued public records requests to the

27 various Nevada government agencies referenced above, seeking, among other things, information

28

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 1 about what steps (if any) the State had taken to implement the new law. Responses to these requests

2 and supplemental requests were exchanged through April 2017.

3 48. In May and June 2017, based in part on records received from these public records

4 requests, the undersigned counsel for Nevadans for Background Checks met in person with

5 Governor Sandovals then-counsel to urge implementation of the Background Check Act, and

6 followed up that meeting with preparation of a detailed Legal Memorandum that was submitted to

7 Governor Sandoval for his review.

8 49. The Legal Memorandum set forth a detailed analysis of why the FBIs position

9 regarding Nevadas current POC status was erroneous and the constitutional duty of the Governor

10 to inform the FBI that Nevadas POC status had changed, as described above.

11 50. The Legal Memorandum emphasized that the determination of a states POC status

12 lies wholly within the power and authority of the state, citing 28 C.F.R. 25.2s definition of a POC
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13 as an agency with express or implied authority to perform POC duties pursuant to state statute,
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14 regulation, or executive order.

15 51. The Legal Memorandum further explained that documents obtained through the

16 public records requests indicated that as DPS had anticipated NICS appeared to be waiting on

17 some official action from Governor Sandoval before it would consider acting to implement the

18 change in Nevadas POC status.

19 52. Additionally, Governor Sandoval was informed that other states have changed their

20 POC status as follows:

21 a. In 2000, Oregon voters approved a ballot initiative that changed that states
22 POC status from partial to full. Specifically, prior to the approval of the amendment, FFLs in
23 Oregon were required to contact a state agency for background checks for handgun sales, and the
24 FBIs NICS Section for long gun sales. The 2000 initiative directed FFLs to contact the POC for the
25 sale of both handguns and long guns. Within weeks of voter approval, both the NICS Section and

26 ATF recognized that through the voter initiative, Oregon had changed from a partial POC to a full

27 POC state.

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 1 b. Between 1999 and 2005, South Carolina, Vermont, Arizona, Indiana, and

2 Georgia all chose to cease operating as POCs and instead to have the NICS Section conduct all

3 background checks on gun sales in their states. In each case, NICS accepted the change and ATF

4 promptly notified FFLs in the state that they should begin contacting the NICS Section for

5 background checks instead of the state POC.

6 c. Colorado has twice changed its POC status. In March 1999, it ceased its

7 partial POC operation and became a non-POC state, but shortly thereafter changed course and

8 resumed operations, this time as a full POC state.

9 53. Governor Sandoval was further informed that, while DPS had long contemplated

10 that the kind of change in Nevada law effected by Question 1 might alter Nevadas POC status

11 from full to partial (a possibility that was determined would be revenue neutral), following

12 passage of the Background Check Act in November 2016, DPS only presented the Governor with
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13 a false binary choice: to remain a full POC state or to completely decommission the POC
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14 program (such that all Nevada background checks, on both dealer and unlicensed sales, would be

15 conducted by NICS). The partial POC option, which DPS had discussed with the NICS Section

16 and which voters were told was a possibility in the Fiscal Note circulated by the Secretary of State

17 in advance of the vote on Question 1, was not in any way acknowledged or presented for the

18 Governors consideration.

19 54. However, despite being advised that the FBI continues to believe, erroneously, that

20 Nevada has maintained its full POC status, and despite being advised that there was a third option
21 beyond the two choices that DPS had presented to him and that it was his duty as Nevadas chief
22 executive to confirm to the FBI Nevadas change in status so the new law could be implemented,
23 Governor Sandoval has failed to take any action to confirm Nevadas change to partial status,
24 correct the FBIs inaccurate understanding of the current state of Nevada law, and/or renegotiate
25 Nevadas POC status as the voters were told would be necessary.

26 55. Nor has Governor Sandoval taken any other action to cause the Background Check

27 Act to be enforced as mandated by Nevada voters.

28 ///

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 1 56. On September 25, 2017, the undersigned counsel sent the Governor a letter on behalf

2 of Nevadans for Background Checks, urging that he take such action immediately to avoid a lawsuit

3 seeking to compel him to do so.

4 57. The Governor did not respond to this demand letter until public attention was drawn

5 to the failure to implement the Background Check Act following the horrific and tragic mass

6 shooting in Las Vegas on October 1, 2017.

7 58. But even then, the Governor continued to refuse to reach out to the FBI, choosing

8 instead to write to Attorney General Laxalt on October 4, 2017, seeking clarification of the

9 Attorney Generals earlier Opinion as to the possibility never mentioned in that Opinion that

10 Nevada could change its status to a partial POC state.

11 59. In response to this letter, the undersigned pointed out that Nevada had already

12 changed to a partial POC state by passing Question 1, there is nothing preventing the Governor
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13 from reaching out directly to the FBI NICS Section, and no further opinion of the Attorney General
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14 is required in order for the Governor to carry out his constitutional obligation to implement the

15 Background Check Act and see that this important public safety law is faithfully executed.

16 60. As of the date of the filing of this lawsuit, it appears that no further action has been

17 taken by the Governor or the Attorney General.

18 61. Ironically, and as noted above, while Nevadans voted in November 2016 to expand

19 the number and type of gun sales that are subject to background checks in the state, because the

20 Attorney Generals Opinion erroneously accepted the FBIs assertion as to Nevadas POC status,
21 and the Governor has failed to take action to correct that assessment, the result has been the
22 opposite fewer background checks and thus a greater risk to public safety.
23 FIRST CAUSE OF ACTION
24 Mandamus
25 62. Plaintiffs repeat the allegations of Paragraphs 1-61 as though set forth herein in their

26 entirety.

27 63. As Governor of the State, Defendant Sandoval is constitutionally required to see that

28 the laws of Nevada are faithfully executed. Nev. Const. Art. 6, 6.

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LV 420997444v1
 1 64. Defendant Sandoval has failed to see to the faithful execution of the Background

2 Check Act.

3 65. Defendant Sandoval also has acted arbitrarily and capriciously in not taking the steps

4 necessary to enforce this law.

5 66. As citizens and taxpayers of the State of Nevada, Plaintiffs are entitled to a writ of

6 mandamus directing the Governor to comply with his constitutional obligation to see to the faithful

7 execution of the Background Check Act, including directing the Governor to: (a) confirm to the

8 FBIs NICS Section Nevadas election of partial POC status; and (b) take whatever reasonable steps

9 are necessary to implement the law.

10 SECOND CAUSE OF ACTION

11 Declaratory Relief
12 67. Plaintiffs repeat the allegations of Paragraphs 1-66 as though set forth herein in their
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13 entirety.
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14 68. Under NRS.30.010 et seq., the Uniform Declaratory Judgment Act, any person

15 whose rights, status or other legal relations are affected by a statute may have determined any

16 question of construction or validity arising under the instrument, statute, ordinance, contract or

17 franchise and obtain a declaration of rights, status or other legal relations thereunder.

18 69. Plaintiffs rights as citizens and taxpayers of this State to have laws adopted by the

19 majority of voters enforced are a legally protectable interest in the controversy, particularly where

20 Plaintiffs played an active role to support passage of the law.

21 70. Additionally, the rights, status, and/or legal relations of Plaintiffs are affected by

22 NRS 202.254, as amended by Question 1, as Plaintiffs are: (a) subjected to a less safe community as

23 a result of the non-enforcement of NRS 202.254; and (b) unable to obtain a background check in

24 connection with any future private transfer of a firearm.

25 71. A justiciable controversy exists as Plaintiffs seek to have NRS 202.254 enforced,

26 while Defendant Laxalt has issued an Attorney General Opinion holding that NRS 202.254 is

27 unenforceable.

28 ///

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LV 420997444v1
 1 72. The issue involved in the controversy is ripe for judicial determination because there

2 is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy

3 and reality to warrant the issuance of a declaratory judgment.

4 73. Accordingly, Plaintiffs are entitled to a declaratory judgment that:

5 a. Nevada has elected partial POC status, such that the required background

6 checks for unlicensed sales of firearms are to be conducted by the FFL contacting the NICS Section

7 directly, whereas for sales of firearms by FFLs, the required background checks will continue to be

8 carried out by the FFL contacting the state POC (the Central Repository at DPS); and

9 b. NRS 202.254 is valid and enforceable as written.

10 74. Or, in the alternative, to the extent and for so long as the Court determines that NRS

11 202.254 as amended by Question 1 is impossible to enforce as a matter of Nevada law and is

12 therefore invalid, and pursuant to the severability mandate in Section 8 of the Background Check
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13 Act, the Court should declare that:

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Suite 400 North

14 a. NRS 202.254(3)(a) is severed, to give effect to the central purpose of the

15 Background Check Act closing the dangerous loophole for unlicensed sales;

16 b. as a conforming change, the language from the National Instant Criminal

17 Background Check System is severed from NRS 202.254(4); and that

18 c. the unsevered portions of NRS 202254 are valid and enforceable.

19 WHEREFORE, Plaintiffs pray for relief as follows:

20 1. For a Writ of Mandamus as set forth above;

21 2. In the alternative, for Declaratory Relief, as set forth above;
22 3. For an award of costs and reasonable attorneys fees; and
23 4. For such other and further relief that the Court deems just and proper.
24 DATED this 12th day of October, 2017. GREENBERG TRAURIG, LLP

25 /s/ Mark E. Ferrario

MARK E. FERRARIO, ESQ. (NBN: 1625)
26
TAMI D. COWDEN, ESQ. (NBN: 8994)
27 3773 Howard Hughes Pkwy., Suite 400 N
Las Vegas, NV 89169
28 Counsel for Plaintiffs

14
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