It's been nearly three weeks since a cyberattack on Nevada's state government computer systems took the Department of Public Safety's background check system online, and despite rumors of respite a few days ago, gun store owners and gun buyers are still stuck in limbo.
Nevada is what's known as a Point of Contact state, meaning the state's DPS runs background checks on gun transfers instead of FFLs directly contacting the National Instant Check System. While state law allows for individuals with a valid concealed carry license to bypass a background check, all other sales and transfers must go through DPS, and that's left gun stores stuck.
“We know that customers are frustrated. It makes us frustrated, and we just want to see this resolved, that’s all,” said David Powell, who is the manager of Wild Bill’s Guns Too. “Basically, anybody without a CCDW in the state of Nevada cannot purchase a firearm and walk out the same day. It’s affecting our business negatively, so we had people just walk out without buying anything because they know they can’t walk out with it today.”
Powell claims his store is losing thousands of dollars. “Anywhere between 2 to 8,000 dollars a day.”
He has sent a two-page letter to Governor Joe Lombardo that details a possible solution.
“Urging him to fix this, and with a way to fix it. An Emergency Declaration would give the power of background checks back to the FBI. That way, we can do background checks on customers and resolve this issue quickly.”
Lombardo could declare a state of emergency, which would allow him to coordinate with federal authorities on emergency management measures. There are a couple of problems, though. One is that state law doesn't allow for the FBI to be used as a direct point of contact. Instead, the statute designates "the Central Repository or any other state or local agency" to conduct those checks.
Another issue is that Nevada requires background checks on all transfers of firearms. When that measure was first approved by voters nearly a decade ago, the FBI informed the state it could not perform checks on those private party transfers, which is the main reason why checks are now performed by the Nevada Department of Public Safety. Even if Lombardo declared a state of emergency, I don't know that the FBI would agree to start conducting the checks.
Essentially, the state's "universal" background check law would have to be suspended in order for FFLs to query NICS directly. I don't think that would be a bad thing at all, but that might be beyond the scope of Lombardo's emergency powers and would require action from the Nevada legislature.
“A right delayed is a right denied. Everybody that can at least pass a background check in Nevada should be able to use that right in a timely fashion. The state shouldn’t be telling consumers, “Well, just wait.” We shouldn’t have to wait.”
I wholeheartedly agree, but this is one of the problems with the state's "universal" background check system. There are no provisions for conducting checks when the DPS system crashes or is taken offline, which is a fundamental flaw that needs to be corrected.
In the meantime, FFLs have received little guidance from the state about when the DPS will be able to resume processing background checks. I've heard from FFLs who say it could be anywhere from a few days to a couple of months, but officially there's been no word at all from state authorities.
Lombardo needs to do whatever he can to resolve this issue quickly, because people's rights are being denied on a daily basis. If declaring an emergency won't do the trick, then maybe it's time for the governor to call lawmakers back to Carson City for a special session; where they can amend the law and provide the necessary fixes that allow FFLs to contact the NICS system directly on commercial firearm transactions, as well as suspending the background check requirement for private, person-to-person transfers when the DPS is unable to perform those checks in a timely manner.
This is also a cautionary tale for gun owners in other states. Cyberattacks on government computer networks aren't going to stop, and we've now seen the effect they can have on our Second Amendment rights. The ongoing nightmare in Nevada can happen in any state that doesn't allow for FFLs to contact NICS directly, and its yet another reason why "universal" background checks are a bad idea.
***UPDATE***
The National Shooting Sports Foundation has sent a letter to Gov. Lombardo echoing Powell's call for an emergency declaration:
Dear Governor Lombardo:
On behalf of Nevada’s licensed firearm retailers and firearm owners, we respectfully urge you to exercise your emergency authority under NRS Chapter 414 to provide immediate relief from the ongoing disruption caused by the Nevada Department of Public Safety’s Brady Point of Contact (POC) system outage.
For nearly twenty days, Nevada’s Point of Purchase (POC) background check system has been offline. While NSSF and our Nevada members understand this lengthy outrage is the result of a cyberattack that has adversely affected several state computer systems and we appreciate your administration’s diligent efforts to restore the POC systems to operational functionality, the delay is impacting the ability of law abiding Nevadans to lawfully exercise their Second Amendment rights.
Under NRS 202.254, FFLs must route firearm background checks through the Department of Public Safety (DPS), but with the system inoperable, lawful commerce in firearms has been effectively halted. This failure has placed tremendous strain on small businesses, employees, and law-abiding citizens, while doing nothing to advance public safety.
Federal law already mandates background checks through the FBI’s National Instant Criminal Background Check System (NICS). NICS remains fully functional and accessible, and it is the standard system used by the majority of states. Temporarily authorizing Nevada FFLs to utilize NICS directly while the DPS system is down would:
Ensure continued compliance with federal background check requirements.
Preserve public safety by guaranteeing that no firearm transfers occur without a background check.
Prevent unnecessary economic harm to Nevada small businesses and their employees.
Provide Nevada citizens with lawful access to their rights without delay.
We respectfully request that you exercise your legal authority to issue an emergency order suspending the POC requirement under NRS 202.254 for the duration of this outage and directing FFLs to contact the FBI NICS system directly until DPS operations are fully restored.
Looking beyond this immediate crisis, we believe this outage highlights the need to reconsider whether Nevada should continue operating as a POC state. A state-managed system funded by a $25 per-transaction fee has once again proven vulnerable to disruption. By contrast, the FBI NICS system is reliable, efficient, and already used successfully in many states, including neighboring Idaho.
We urge you to work with the legislature to repeal Nevada’s POC mandate and return to direct NICS checks on a permanent basis.
Our request today is narrow, temporary, and made in good faith to preserve lawful commerce and public safety during an unprecedented failure. But this experience makes clear that long-term reform is warranted so Nevada citizens and businesses are not left stranded by future system outages.
We appreciate your leadership and respectfully request prompt action.
Sincerely,
Lawrence G. Keane
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