DC Court of Appeals opinion
http//pacer.cadc.uscourts.gov/common/opinions/200007/99-5270a.txt
The NRA lost this one. The dissenting opinion is by David Sentell, a Jesse
Helms crony, who played a role in getting Kenneth Starr into the Office of
Independent Coucil to pursue sexual McCathryism against President Clinton.
The background for NRA v. Reno is Stephen Halbrook's
"Congressional Interpretations,"Tenn. Law Review,
Spring, 1995. There is no secret about what the NRA and
Stephen Halbrook want. They want to maintain a balance of
power between a privately armed populace and any and all
government. This is the essence of the armed populace
fantasy. The armed populace fantasy denies the legitimacy of
public authority and the viability of political community.
The Constitution is reduced from a frame of government
with "just powers" (public authority) derived from the consent
of the governed to a treaty among sovereign individuals
who give no more than word honor and promise of good faith. See
Potowmack Institute amicus in
Emerson.
The NRA has lobbied Congress since the 1930s to
have its minions write into law that there is no intent to
register guns. It then goes to court to argue that the courts
have to respect the will of Congress which is presumably the
will of the people when it is only the will of NRA lobbyists.
Registration means accountability to public authority. It means
the consent to be governed and the accommodation to public authority.
Other expositions on this strategy are in
Halbrook's petitition for Sheriff Printz
in Printz and Mack and in the
Citizens Committee on the Right to Keep and Bear Arms's
amicus brief in Emerson,
.../ccrkba.html.
The problem with the armed populace fantasy is that it has
no roots in the consciousness and practices of the
militia and the early republic. It is a strictly mid and late
twentieth century invention. The
Militia Act of 1792, enacted
by the same people who ratified the Second Amendment, required
the states to "enroll"--that is, register--militiamen
for militia duty. It also required the state militia officers to
maintain inventories, called
"Return of Militia,"
including privately owned weapons and report these to the state
governor and the president of the United States. The militia returns
included rifles, muskets, side arms, pistols, pounds of powder, flints,
etc.
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NATIONAL RIFLE ASSOCIATION OF AMERICA, INC. et
al.,
Plaintiffs -Appellants,
v.
JANET RENO, UNITED STATES ATTORNEY GENERAL,
Defendant-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIAM
BRIEF FOR APPELLEE
DAVID W. OGDEN
Acting Assistant Attorney General
WILMA A. LEWIS
United States Attorney
MARK B. STERN
SUSAN L. PACHOLSKI
Attorneys, Appellate Staff
Civil Division
Department of Justice
CERTIFICATE OF COUNSEL AS TO
PARTIES, RULINGS, AND RELATED CASES
A. Parties And Amici: Appellants in
this appeal are the National Rifle Association
of America, Inc., Law Enforcement Alliance of
America, Inc., and natural persons denominated
Jane Doe I, Jane Doe II, John Doe I, John Doe
III, and John Doe IV. Appellee in this appeal
is Janet Reno, United States Attorney
General. No amici participated in the
district court proceedings, and none have
participated thus far in this appeal.
B. Rulings Under Review: Appellants
seek review of the final judgment entered in
this action on July 7, 1999 by Judge James
Robertson, United States District Court for the
District of Columbia, in Civ. No. 98-02916. The
district court’s ruling is unpublished, and is
reprinted in the Joint Appendix beginning at
page 34. The final judgment incorporates the
district court’s ruling dated January 26, 1999,
denying plaintiffs’ motion for a preliminary
injunction. No appeal was taken from that
unpublished ruling, which is reprinted in the
Joint Appendix beginning at page 24.
C. Related Cases: This case has not
previously been before this Court or any other
federal court of appeals. Counsel is not aware
of any related cases.
Susan L. Pacholski
Attorney for Appellee
TABLE OF CONTENTS
CERTIFICATE OF COUNSEL AS TO PARTIES, RULINGS,
AND RELATED CASES
GLOSSARY
STATEMENT OF SUBJECT MATTER AND APPELLATE
JURISDICTION. . . . .1
STATEMENT OF THE ISSUES. . . . 2
PERTINENT STATUTORY AND REGULATORY PROVISIONS. .
. . 2
STATEMENT OF THE CASE. . . . .2
A. Statutory and Regulatory Framework. . . .
2
1. The Gun Control Act. . . . .2
2. Regulatory Framework. . . . .5
a. The National Instant Criminal
Background Check System. . . . .5
b. The Audit Log Regulation. . . . .7
3. Subsequent Legislation. . . . .
9
B. Prior Proceedings. . . . . .10
SUMMARY OF ARGUMENT. . . . . 11
ARGUMENT. . . . . 14
STANDARD OF REVIEW. . . . .14
I. THE AUDIT LOG REGULATION IS A
REASONABLE
INTERPRETATION OF THE REQUIREMENTS
OF THE
BRADY ACT. . . . . 14
A. Records Of Allowed Transfers Are Kept
For A Limited Time Solely To Ensure
the
Privacy And Security Of The
Information
Of The System. . . . . 14
B. The Attorney General Reasonably Determined
That Retaining Records
For A Limited Time Is Consistent With
The Brady Act. . . . . 18
C. The Audit Log Does Not Constitute
A Federal Firearms Registry. . . .
.23
I I. STATE RETENTION OF RECORDS OF FIREARMS
TRANSACTIONS DOES NOT VIOLATE THE
BRADY ACT. . . . .31
III. THIS COURT SHOULD NOT ENTERTAIN THE
NRA’ S FOURTH AMENDMENT CLAIM. . . .
. 34
CONCLUSION 36
CERTIFICATE OF SERVICE
CERTIFICATE REQUIRED BY CIRCUIT RULE 28(d)(1)
$$
Glossary
ATF. . . . .Bureau of Alcohol, Tobacco, and
Firearms
FBI. . . . . Federal Bureau of Investigation
NRA. . . . . National Rifle Association
NICS. . . .National Instant Criminal Background
Check System
TABLE OF AUTHORITIES
(OMITTED)
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 99-5270
NATIONAL RIFLE ASSOCIATION OF AMERICA INC.,
et al.
Plaintiffs-Appellants,
v.
JANET RENO, UNITED STATES ATTORNEY GENERAL,
Defendant-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLEE
STATEMENT OF SUBJECT MATTER
AND APPELLATE JURISDICTION
Plaintiffs-appellants the National Rifle
Association of America, Inc., Law Enforcement
Alliance of America, Inc., Jane Does I and II,
and John Does I, III, and IV (collectively, "the
NRA"), invoked the district court’s jurisdiction
pursuant to 28 U.S.C. § § 1331, 2201,
and under the Administrative Procedure Act,
5 U.S.C. § 701. Joint Appendix ("JA") 8.
The district court entered final judgment in
favor of the defendant on July 7, 1999. JA
34-39. Plaintiffs filed a notice of appeal to
this Court on July 16, 1999. JA 5. The notice of
appeal was filed within the G days permitted by
Fed. R. App. P. 4(a)(1)(B). This Court has
Page 2
jurisdiction over this appeal from a final order
of the district court pursuant to 28 U.S.C.
§ 1291.
STATEMENT OF THE ISSUES
The Attorney General has established a National
Instant Criminal Background Check System, known
as the NICS, to inform federally licensed
firearms dealers whether the transfer of a
firearm would be a violation of federal law. The
Attorney General has directed the Federal Bureau
of Investigation to maintain records from all
NICS checks in an audit log for 180 days. If a
NICS check does not reveal any disqualifying
information, records from such a check may only
be used for the limited purpose of ensuring the
proper use and functioning of the NICS.
1. Whether the Attorney General reasonably
determined that keeping records of firearms
transfers that are allowed to proceed in an
audit log, for the limited purpose of ensuring
the proper use and functioning of the system, is
consistent with the Brady Act.
2. Whether the Attorney General reasonably
determined that states that voluntarily
participate in the federal background check
system may, if required by state law, retain
information regarding the NICS check.
3. Whether the NRA lacks standing to raise a
Fourth Amendment challenge on behalf of Federal
Firearms Licensees or prospective gun purchasers
who are not parties to this suit, and whether
the NRA’s claim is ripe.
Page
2
PERTINENT STATUTORY AND REGULATORY PROVISIONS
The pertinent statutory and regulatory
provisions are set forth in an addendum to this
brief.
STATEMENT OF THE CASE
A. Statutory and Regulatory Framework.
1. The Gun Control Act
The Gun Control Act of 1968, Pub. L. No. 90-618,
82 Stat. 1213 (1968), codifiedat,
18 U.S.C. § § 921-930, prohibits
convicted felons and certain other categories of
individuals from possessing firearms and
ammunition. 18 U.S.C. § § 922(g), (n).
The Brady Handgun Violence Prevention Act, Pub.
L. No. 103-159, p. 107 Stat. 1536, codified at
18 U.S.C. § 922 & note (Supp. 1998)
(the "Brady Act"),amended the Gun Control Act to
provide for mandatory background checks before
firearms purchases, to prevent purchases by
those barred by the Gun Control Act and state
law from possessing firearms. H.R. Rep. No.
103-344 at 7 (1993), reprinted in 1993
U.S.C.C.A.N. 1984.
The Brady Act directed the Attorney General to
establish and operate a nationwide background
check system that licensed firearms dealers
could contact, by phone or electronically, to be
informed instantly whether information in the
system indicates that transfer of a firearm to a
particular individual would be prohibited. Brady
Act § 103(b); 18 U.S.C. § § 922(t)(1)
and (t)(2). While the Attorney General was
developing the nationwide
Page
3
system, state law enforcement officers conducted
background checks .
1
The Brady Act directs the Attorney General to
issue regulations "to ensure the privacy and
security of the information" in the national
criminal background check, system. Id.
§ 103(h). The Brady Act also restricts the
federal government’s use and retention of
records of firearms transfers which, after a
background check, are allowed to proceed. The
Brady Act directs that if a firearms transfer
would not violate state or federal law, the
system must assign a transaction number to the
call, provide that number to the dealer, and
"destroy all records of the system with respect
to the call (other than the identifying number
and the date the number was assigned) and all
records of the system relating to the person or
the transfer." 18 U.S.C. § 922(t)(2). The
Act does not specify when the records
destruction must take place. Although the House
version of the Brady bill provided that the
system must "immediately destroy" records of
transactions allowed to proceed, the House
acceded to the Senate version of the destruction
requirement which did not contain the term
"immediately," and the final version of the Act
simply states that such records must be
destroyed. See H.R. Conf. Rep. 103-412,
P.L. 103-159, 1993 WL 485535 (Nov. 22, 1993);
1993 CQ US HR 1025 lO3d Cong., 1st Sess. (Nov.
24, 1993); 18 U.S.C. § 922(t)(2).
Page 4
The records destruction requirement is in
keeping with the Brady Act’s prohibition on the
establishment of a federal "system of
registration" for firearms, firearm owners or
firearm transfers. The Act prohibits federal
departments, agencies, officials or employees
from creating a central repository of records of
firearms dealers by "requir[ing) that any record
or portion thereof generated by the system
established under this section be recorded at or
transferred to a facility owned, managed, or
controlled by the United States or any State or
political subdivision thereof." The Act also
prohibits use of the federal system to
"establish any system for the registration of
firearms, firearm owners, or firearm
transactions or dispositions, except with
respect to persons, prohibited by section 922(g)
or (n) of title 18, United States Code or State
law, from receiving a firearm." Brady Act §
103(i)(2), 18 U.S.C. § 922 note.
2. Regulatory Framework.
a. The National Instant Criminal
background Check System.
In accordance with the Brady Act, the Attorney
General issued regulations to establish and
implement the National Instant Criminal
Background Check System, the "NICS," which took
effect on November 30, 1998. See 28
C.F.R. § 25.1 etseq. To
implement the NICS, the Attorney General created
the NICS Index, a database that contains
information on persons prohibited by law from
possessing firearms that was not already
contained in existing federal criminal records
databases. The regulations
Page 5
direct the FBI to manage the NICS Index and
handle background check inquiries, which are run
through the NICS Index and other federal
criminal records databases. The regulations also
permit states to serve as "Points of Contact,"
or intermediaries between the FBI and licensed
dealers. 28 C.F.R. § 25.6(d). States that
serve as points of contact field inquiries from
dealers rather than the FBI. The state agency
performs a background check pursuant to state
law, if state law so provides, and also contacts
the NICS. The state then determines whether
matching records indicate that a transfer should
not proceed. 28 C.F.R. § 25.2.
NICS inquiries work as follows: Federally
licensed firearms dealers
2
must collect information from each potential
purchaser including name, sex, race, date of
birth and state of residence. This information
does not contain the make, model, amount or
serial number of weapon(s) sought to be
purchased, nor does it require listing the
prospective purchaser’s street address, phone
number or social security number. 28 C.F.R.
§ 25.7(a) . Before transferring a gun, the
dealer must provide the information, by phone or
electronically, to the NICS operation center at
the FBI, or to the state agency if the state
serves as a point of contact. The FBI or the
state agency compares that information to
matching records, if any, found in the NICS
Index and other federal databases maintained by
the FBI, and, where a state serves as a
Page 6
point of contact, in any databases maintained
independently as a matter of state law. JA 84.
After these checks, the FBI or the state agency
provides the dealer with one of three responses:
(1) proceed, if none of the information in the
system indicates that a firearms transfer would
be in violation of law; (2) denied, if a
matching record is found showing that the
individual is barred by law from purchasing a
gun; or (3) delayed, if further research is
needed to determine whether a prospective
transferee is barred by law from possessing a
firearm, in which case the firearms dealer must
await the receipt of a following "proceed"
response or the passage of three business days
before transferring the firearm, whichever comes
first. 28 C.F.R. § 25.6(c)(1)(iv).
b. The Audit Log Regulation.
At the heart of this lawsuit is the Attorney
General’s regulation requiring that all NICS
transactions, including information on allowed
transfers, be recorded in an "audit log." 28
C.F.R. § 25.9(b). Among other information,
the audit log records the personal identifying
information provided to dealer by the
prospective firearms purchaser. Id. §
25.9(b)(1). The FBI may only use information on
allowed transfers in the audit log for purposes
of ensuring that the NICS is not being misused
and that it is functioning properly. Id.
§ 25.9(b)(2) . The regulations direct the
FBI to analyze the information in the audit log
to determine whether the NICS is being used
correctly and only for authorized purposes by
dealers, states serving as points of contact,
and FBI employees and contractors; to review
Page 7
the accuracy of responses given by NICS record
examiners to dealers; to determine whether
convicted felons or others are using false
identities to obtain firearms; and to make sure
that the NICS is working correctly from a
technical standpoint. 28 C.F.R. § 25.9(b)
(2); JA 92-93.
The regulations explicitly prohibit the use of
the audit log to establish a federal firearms
registry. 28 C.F.R. § 25.9(b)(1). The
audit log retains records pertaining to allowed
transfers for only 180 days, after which all
information except the NICS transaction number
and the date it was assigned is destroyed.
3Ibid.; see18 U.S.C. § 922(t)
(2). In keeping with a pledge to "reducte) the
retention period to the shortest practicable
period of time * * * that will allow basic
security audits of the NICS," JA 93, the
Attorney General has proposed to shorten the
retention period for records of allowed
transfers to 90 days, a period of time
determined to be the absolute minimum to allow a
useful audit. 64 Fed. Reg. 10262, 10263 (March
3, 1999)
The Attorney General’s regulations require
states that serve as points of contact to
destroy information pertaining to the NICS
background check if a transfer is allowed,
unless the state is required to keep such
records as a matter of state law. 28 C.F.R.
§ 25.9(d). The Attorney General explained
that the regulations permit states to retain
information pursuant to state
Page 8
law in order to avoid interference with state
firearms regulations. The Attorney General noted
that where a state performs background checks
pursuant to state law and retains that
information, information from a concurrent NICS
background check will not add to the information
the state has on firearms ownership. JA 93.
3. Subsequent Legislation.
As noted, the House version of the Brady bill
included a requirement of immediate destruction
of records of allowed transfers, but the final
version of the statute simply states that such
records shall be destroyed. After the Attorney
General issued proposed audit log regulations in
June 1998, Congress rejected several new
attempts to impose a requirement for the
immediate or near-immediate destruction of
records of allowed firearms transfers. Congress
refused to impose criminal and monetary
penalties for any government employee or
contractor who knowingly retained for more than
24 hours NICS information concerning an allowed
transfer. See No Gun Tax Act of 1998,
H.R. 3949, 105th Cong. (1998); Firearms Owner
Privacy Act of 1998, S. 2175, 105th Cong. (1998)
(same) . Congress also rejected a proposed
appropriations rider that would have prohibited
the use of funds to run any system to implement
the Brady Act’s background check requirement if
records of allowed transactions were not
immediately destroyed. Omnibus
Consolidated and Emergency Supplemental
Appropriations Act of 1999, § 621 Pub. L.
No. 105-277 (Oct. 21, 1998)(requiring that
records be destroyed, not specifying when such
destruction must take place). In
Page 9
recent year-2000 appropriations legislation,
Congress again rejected a proposal identical to
the one it rejected in 1998. See S. 1217,
106th Cong. 1st Sess. (1999) ; An Act Making
Consolidated Appropriations For the Fiscal Year
Ending September 30, 2000, and For Other
Purposes, § 619 Pub. L. 106-113 (Nov. 29,
1999)
B. Prior Proceedings.
The National Rifle Association, the Law
Enforcement Alliance of America, and individual
members of both groups who claim to have
provided information to a firearms dealer for
the purpose of a NICS background check brought
suit in district court seeking declaratory and
injunctive relief directing that records of
allowed transfers must be destroyed immediately
by both federal and state officials, pursuant to
the Brady Act, 18 U.S.C. § 922(t)(2),
§ 103(1), 18 U.S.C. § 922 (note), and
the Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999, Pub. L.
No. 105-277, Title VI, § 621. JA 6-21.
The district court denied the plaintiffs’ motion
for a preliminary injunction on January 27,
1999. The court held that the statute on its
face was silent as to the time within which the
NICS records must be destroyed, and that the
Attorney General’s interpretation of the
statute, to permit retention of records of
allowed transfers for a brief period of time in
order to ensure the proper use and functioning
of the system, was reasonable. JA 26-27.
The Attorney General moved to dismiss the
complaint, and the d:s:rict court granted that
motion on July 7, 1999. JA 34-36.
Page 10
The court rejected plaintiffs’ claim that NICS
records must be destroyed immediately, because
"Congress had not spoken directly to the
question at issue and because defendant’s
construction of the Brady law was permissible."
JA 35. Because the plaintiffs "ha[d] not offered
any basis for departing from vron U.S.A. Inc.
v. Natural Resources Defense Council.
Inc.467 U.S. 837 (1984)]" the trial court
dismissed the complaint. JA 38.
SUMMARY OF ARGUMENT
The Brady Act vests the Attorney General with
responsibility for administering the National
Instant Criminal Background Check system, and
charges the Attorney General with maintaining
the security and privacy of the information of
the system. To that end, after notice and
comment rulemaking, the Attorney General
determined that data on allowed firearms
transfers must be kept for a limited period of
not more than 180 days, for the limited purpose
of auditing the system for possible misuse and
ensuring that the system is functioning
properly. The Attorney General directed the FBI
to use the audit log to determine whether
firearms dealers, states serving as points of
contact, and FBI employees and contractors are
using the system properly and only for
authorized purposes; to ensure that dealers
submit accurate data to the FBI, and that the
FBI provides accurate responses to dealers; and
to detect and correct technical errors in the
system.
1. In promulgating the audit log regulations,
the Attorney General addressed the Brady Act’s
requirement that records of allowed transfers be
destroyed, as well as the Act’s prohibition
Page 11
on the establishment of a federal firearms
registry. The Attorney General determined that
Congress had not required the immediate
destruction of records of allowed transfers, and
that the destruction requirement should be
interpreted consistent with the need to ensure
the security and integrity of the system. The
Attorney General thus determined that retention
of records for a limited time, only to achieve
the goals of the Brady Act, is permissible under
the Act. That determination is wholly reasonable
and consistent with the requirements of the Act.
The reasonableness of the Attorney General’s
interpretation is underscored by the fact that
Congress considered and rejected language, both
before and after passage of the Brady Act, that
would have required the immediate destruction of
information on allowed transfers. The NRA would
insert the word "immediate" into the statute’s
destruction requirement: Congress refused to do
so.
2. The NRA seeks to preclude the limited
retention of records of allowed transactions on
the basis of the general statutory provision
prohibiting the establishment of a federal
firearms registry. The Act’s prohibition on the
creation of a registry does not bar a listing of
allowed transfers that routinely purges
information after six months and that may be
used only to ensure that the NICS is not being
misused and that it is functioning properly.
Nor does the provision of the Act which
precludes the Attorney General from requiring
that third parties record or trar.sfer
information to a federal facility prohibit the
Page 12
maintenance of the audit log. This section of
the Act, 103(i)(1), does not implicate the
Attorney General’s retention of NICS records;
that subject is covered by the Act’s destruction
requirement. See 18 U.S.C. § 922(t)
(2). Rather, section 103(i)(1) prohibits the’
federal government from requiring third parties,
such as firearms dealers, to transfer any
information to federal or state facilities that
is not already required by the Act. The
provision prevents the creation of a central
federal repository of information on firearms
transactions, which could be used to establish a
federal firearms registry.
3. The Attorney General reasonably
interpreted the Act to permit states that serve
as points of contact to retain information on
allowed transfers if required by independent
state law. The Gun Control Act explicitly states
that it does not intend to occupy the field of
firearms regulation. The Brady Act clearly
prohibits the establishment of a federal
firearms registry, but suggests no intent to
interfere with state recordkeeping requirements.
Some states that serve as points of contact have
independent systems in place for conducting
background checks and keeping information on
firearms transactions, including allowed
transfers. Regardless of whether a NICS check is
performed, the state would retain the personal
identifying information provided to the dealer
for purposes of a state background check, so
information from the NICS check will not add to
the information the state retains on firearms
transactions. The Attorney General therefore
reasonably determined that the Brady Act did not
preempt state firearms
Page 13
regulations that require the maintenance of
records on allowed transfers.
4. The NRA’s argument that the FBI will violate
the Fourth Amendment rights of firearms dealers
and unlawful firearms transferees by conducting
warrantless searches and intimidating interviews
is baseless for a host of reasons. The
plaintiffs in this suit lack standing to assert
the Fourth Amendment rights of firearms dealers
and unlawful firearms transferees who are not
parties to this lawsuit. Moreover, this claim is
based on the NRA’s unfounded speculation about
how audits of dealers will be conducted, and is
not ripe for review, since the NRA has not
alleged that any such audits or interviews have
taken place.
ARGUMENT
STANDARD OF REVIEW
This Court reviews the grant of a motion to
dismiss denovo. Brown v.
Plaut, 131 F.3d 163, 167 (D.C. Cir. 1997),
cert.denied, 118 S.Ct. 2346
(1998)
I. THE AUDIT LOG REGULATION IS A REASONABLE
INTERPRETATION OF THE REQUIREMENTS OF THE BRADY
ACT.
Congress enacted the Brady Handgun Violence
Prevention Act to keep firearms out of the hands
of those, such as convicted felons, who are
barred by federal or state law from possessing
guns. H.R. Rep. 100-344, reprinted in
1993 U.S.C.C.A.N. 1984. The Act directs the
Attorney General to establish a nationwide
instant criminal background check system to
inform licensed firearms dealers, prior to a gun
transfer, whether information in the system
indicates that a potential purchaser is barred
by law
Page 14
from possessing a firearm. Brady Act §
103(b), 18 U.S.C. § 922 note. The Brady Act
also charges the Attorney General to issue
regulations to ensure the privacy and security
of the information of the background check
system, Id. § 103(h), and to
destroy, at some unspecified time, records of
allowed transactions, other than the transaction
number assigned to the transaction and the date
it was assigned. 18 U.S.C. § 922(t)(2).
Pursuant to these directives, after notice and
comment rulemaking, the Attorney General
established the National Instant Criminal
Background Check System, the "NICS," to inform
federally licensed firearms dealers, in most
cases instantly, whether information in the
system indicates that the transfer of a firearm
would be unlawful. The Attorney General has
directed the FBI to develop and operate the
NICS, and has tasked the FBI with ensuring the
security and privacy of the information in the
system. 28 C.F.R. § 25.3.
A. Records Of Allowed Transfers Are Kept For
A Limited Time Solely To Ensure the Privacy and
Security Of The Information In The System.
The Attorney General balanced two competing
considerations in implementing the Brady Act:
the requirement to ensure the privacy and
security of the information in the system, and
the Act’s requirement to destroy records of
allowed transfers. The audit log regulation was
an attempt to "comply with both statutory
requirements by retaining such records in the
NICS Audit Log for a limited, but sufficient,
period of time to conduct audits of the NICS."
JA 92.
Page 15
The Attorney General directed the FBI to
maintain records of all NICS transactions in an
audit log for the minimum period necessary to
perform audits of the system. JA 93. Current
regulations provide that records of allowed
transfers will be maintained in the audit log
for six months; the Attorney General has
proposed to shorten that period to three months.
28 C.F.R. § 25.9(b)(1); see 64 Fed.
Reg. 10264. Use of records of allowed transfers
is strictly limited, the Attorney General
explained, to "satisfy[ing] the statutory
requirement of ensuring the privacy and security
of the NICS and the proper operation of the
system."
JA 92.
The Attorney General determined that an audit
log that temporarily retains information
relating to every background check is essential
to ensuring that the system is not being misused
and that it is functioning properly. The audit
log enables the FBI to monitor the use of the
NICS by firearms dealers, states serving as
points of contact, and FBI personnel. The FBI
also examines whether the FBI employees and
contractors are making correct determinations as
to whether potential transferees are
disqualified, JA 92-93, to ensure that "proceed"
responses are not being supplied with regard to
persons who are disqualified. Decisions to allow
a firearm purchase are not fully automated, and
thus officials must review and evaluate records
before making a decision. JA 110. Review of
decisions made by NICS examiners is necessary to
ensure that responsible individuals make correct
decisions on whether a transfer is
Page 16
permissible, and to enable supervisors to
provide additional training where necessary. JA
110-111.
The audit log also enables the FBI to check for
use of the system for unauthorized purposes,
"such as running checks of people other than
actual gun transferees, and protect against the
invasions of privacy that would result from such
misuse."
4
JA 92. The FBI can also determine whether
firearms dealers or prospective transferees are
using false identities to thwart the NICS’ name
check system.
5Ibid. Audits are also vital to ensuring
that the system (including its software) is
working properly from a technical standpoint.
See 28 C.F.R. § § 25.9(b)(2),
JA 107-108. The FBI estimates that 98 percent of
system inquiries will result in approval of
firearms transactions. JA 112. If the vast
majority of transactions were never recorded in
the audit log, there would not be enough data in
the log to enable the FBI to detect and remedy
system malfunctions, data inaccuracies and
keying errors. JA 118, 109. Without an audit
log, the FBI would simply be incapable of
achieving the level of oversight deemed
essential by the Attorney General.
Page 17
B. The Attorney General Reasonably Determined
That Retaining Records For A Limited Time Is
Consistent With The Brady Act.
The Attorney General reasonably determined that
the maintenance of records of allowed transfers
in the audit log for a limited period of time is
entirely consistent with the Act’s requirement
that records be destroyed. As the Attorney
General noted in the final rule, the Act is
silent as to when records of allowed transfers
must be destroyed. JA 92. The Brady Act states:
If receipt of a firearm would not violate
subsection [922](g) or (n) or State law, the
system shall
* * *
(C) destroy all records of the system with
respect to the call (other than the identifying
number and the date the number was assigned) and
all records of the system relating to the person
or the transfer.
18 U.S.C. § 922(t)(2).
While nothing in the Brady Act requires
immediate destruction of records of firearms
transactions allowed to proceed, the Brady Act
speaks directly to the Attorney General’s
obligation to safeguard information on the NICS,
commanding the Attorney General to "prescribe
regulations to ensure the privacy and security
of the information of the [NICS] system * * *
." Brady Act § 103(h). The Attorney
General reasonably concluded that Congress would
not have ordered her to establish the NICS
without being able to ensure that the system was
working and being used properly. The Attorney
General therefore balanced the countervailing
commands of the Act by providing for the
creation of ani audit log, while specifying that
the retention period for
Page 18
records of allowed transfers shall be "the
minimum reasonable period for performing audits
[of) the system." Indeed, while the initial
retention period was set at 180 days, the
Attorney General pledged in the final rule to
examine whether the retention period could be
shortened without compromising the FBI’s ability
to audit the system. JA 93. In a proposed rule
issued in March 1999, the Attorney General
proposed to cut the retention period to 90 days.
64 Fed. Reg. 10263.
The Attorney General’s interpretation of the
Brady Act to permit temporary retention of NICS
records of allowed transfers in order to comply
with the requirement to ensure the privacy and
security of the system is consistent with the
Brady Act, is entirely reasonable, and is
entitled to deference. See, e.g.,
Holly Farms Corp. v. NLRB, 517 U.S. 392,
409 (1996); Clarke v. Securities Indus.
Ass’n, 479 U.S. 388, 403 (1987) . The
Attorney General’s interpretation "need not be
the only [permissible) one in order to gain
judicial approval." Connecticut Dep’t of
Income Maintenance v. Heckler, 471 U.S. 524,
532 (1985); Chevron U.S.A. Inc. v. Natural
Resources Defense Council. Inc., 467 U.S.
837, 843 n.h (1984)
The reasonableness of the Attorney General’s
interpretation is underscored by the fact that
Congress has repeatedly, both before and after
passage of the Brady Act, rejected the
requirement that records of allowed transfers be
destroyed immediately. Although the House
version of the Brady bill provided that the
system shall "immediately destroy" records of
transactions allowed to proceed, See 139
Cong. Rec. H9123 (daily
Page 19
ed. Nov. 10, 1993), 1993 CQ US HR 1025, 103rd
Cong., 1st Sess. (Nov. 20, 1993), the House
acceded to the Senate version of the destruction
requirement which did not contain the term
"immediately," and the final version as adopted
by the full Congress simply provided that such
records shall be destroyed. See H.R.
Conf. Rep. No. 103-412, P.L. No 103-159, 1993 WL
485535 (Nov. 22, 1993), 1993 CQ US HR 1025 103d
Cong., 1st Sess. (Nov. 24, 1993), 18 U.S.C.
§ 922(t)(2) . Congress’s failure to retain
the immediate destruction requirement strongly
supports the Attorney General’s interpretation
that immediate destruction of records of allowed
transfers is not required. SeeR.J.Reynolds Tobacco Company v. Durham
County. N.C., 479 U.S. 130, 147 n.16 (1986)
(rejection of proposed amendments to place
certain requirements on importers suggests
Congress’s intent was not to impose such
requirements) ; Hutto v. Finney, 437 U.S.
678, 694 (1978)(congressional intent to allow
award of attorneys’ fees against state found in
Congress’s rejection of attempts to amend
attorneys’ fees act and immunize state and local
governments from awards) ; Autolog Corp. v.
Regan, 731 F.2d 25, 32 (D.C. Cir. 1984)
(Congress’s rejection of attempt to amend
statute to prohibit foreign-flag vessels from
providing particular type of service is indicia
of intent not to prohibit such service).
Since the audit log regulation went into effect,
Congress has continued to reject attempts to
insert a requirement of immediate or
near-immediate destruction of records of allowed
transfers. Twice in 1998 Congress refused to
impose criminal penalties on government
employees or contractors who retained for
Page 20
more than 24 hours NICS information concerning a
firearm transaction allowed to proceed.
See No Gun Tax Act of 1998, }LR. 3949,
105th Cong. (1998); Firearms Owner Privacy Act
of 1998, S. 2175, 105th Cong. (1998)(same) .
And in both 1998 and 1999, Congress rejected
riders to appropriations measures that would
have withheld funding for the NICS unless
records of allowed transfers were immediately
destroyed. 144 Cong. Rec. S8625 (daily ed. July
21, 1998)(proposed amendment no. 3233); Omnibus
Consolidated and Emergency Supplemental
Appropriations Act of 1999, § 621 Pub. L.
105-277 (Oct. 21, 1998); S. 1217, 106th Cong.
1st Sess. (July 22, 1999); An Act Making
Consolidated Appropriations For the Fiscal Year
Ending September 30, 2000, and For Other
Purposes, § 619 Pub. L. 106-113 (Nov. 29,
1999) . In light of Congress’s repeated
rejection of attempts to require immediate
destruction of NICS records of allowed
transfers, the Attorney General’s interpretation
of the Brady Act to permit the retention of such
records for a limited time is unquestionably
reasonable.
In arguing that the Brady Act unequivocally
requires the immediate destruction of records of
allowed transfers, NRA Brief ("NBr.") 20, the
NRA effectively attempts to insert the term
"immediately" into the statute’s destruction
requirement. Contrary to the NRA’s suggestion,
there is no canon of statutory construction
providing that when Congress does not estab.lish
a precise timetable, the agency must act
immediately. That is especially the case here,
where Congress has declined to impose a
requirement of immediate action.
Page 21
The NRA suggests that Congress’s intent in
directing the Attorney General to ensure the
privacy and security of the NICS system was
solely to protect firearms transferees from
having personal information recorded by the
federal government. NBr. 24. Nothing in the
statute affords a "privacy" interest unique to
the individual plaintiffs. The Attorney
General’s regulations therefore seek to provide
for the privacy and security of the entire body
of sensitive information used and created in the
functioning of the NICS, and to ensure that this
information is only used for the limited
purposes set forth in the statute and by persons
who have authority to do so.
Moreover, Brady Act does not create any
additional privacy rights for individuals about
whom the system maintains information. As the
Act makes clear, the privacy rights of
individuals about whom the NICS maintains
information are defined in the Privacy Act, 5
U.S.C. § 552a, and the Brady Act does not
"alter or impair any right or remedy" under that
act. Brady Act § 105. Contrary to the NRA’s
suggestion, those with privacy interests include
not only individuals who apply to firearms
dealers to acquire firearms, but also millions
of individuals who have records maintained or
accessed by the NICS.
The NRA argues that a rider to a 1999
appropriations measure, section 621 of the
Omnibus Consolidated and Emergency Supplemental
Appropriations Act of 1999, Pub. L. 105-277
(Oct. 21, 1998), requires immediate destruction
of NICS records of allowed transfers. The NRA
ignores the fact that Congress declined to
include a requirement for immediate destruction
of
Page 22
those records in the rider. The version of the
rider offered by Senator Smith would have
prohibited the use of appropriated funds for any
background check system "that does not require
and result in the immediate destruction
of all information * * * submitted by or on
behalf of any person who has been determined not
to be prohibited from owning a firearm." 144
Cong. Rec. S8625 (daily ed. July 21, 1998)
(proposed amendment no. 3233)(emphasis added).
The word "immediate" was not included in the
final version, however, which prohibits the use
of funds for any system that does not "require
and result in the destruction of any identifying
information submitted by or on behalf of any
person who has been determined not to be
prohibited from owning a firearm." The history
of the appropriations measure, like that of the
Brady Act, makes clear that Congress did not
intend to require the immediate destruction of
records of allowed transfers.
C. The Audit Log Does Not Constitute A
Federal Firearms Registry.
As discussed, the Attorney General reasonably
interpreted the Act’s records destruction
requirement not to require immediate destruction
of records of allowed firearms transactions, but
to permit the retention of such records for a
limited time and for a narrowly circumscribed
purpose. The NRA argues that the audit log
regulation is inconsistent with two other
provisions, both contained in the section of the
Act that forbids the creation of a federal
registry. Congress spoke directly to the
Attorney General’s retention of records in the
Page 23
records destruction provision, 18 U.S.C. §
922(t)(2), however, and the NRA’s reliance on
the firearms registry provision is unavailing.
1. The Brady Act specifically prohibits the
establishment of a federal firearms registry,
stating that NICS records may not be used by
federal departments, agencies, officers or
employees to "establish any system for the
registration of firearms, firearm owners, or
firearm transactions or dispositions, except
with respect to persons, prohibited by section
922(g) or (n) of title 18, United States Code or
State law, from receiving a firearm." Brady Act
§ 103(i)(2), 18 U.S.C. § 922 note. In
keeping with this prohibition, the Attorney
General’s regulations provide that "[t)he NICS,
including the NICS Audit Log, may not be used by
any department, agency, officer, or employee of
the United States to establish any system for
the registration of firearms, firearm owners, or
firearm transactions or dispositions." 28 C.F.R.
§ 25.9(b)(2) .
6
The audit log is not a federal registry of
firearms owners. Records of allowed transfers
are destroyed after six months, and such records
may be used for the limited purpose of ensuring
the proper use and functioning of the NICS.
Neither the Gun Control Act nor the Brady Act
defines the term "system for registration" of
firearms, firearm owners or firearms
transactions. See 18 U.S.C. §
922(a); § 103(j)
Page 24
(definitions provisions). Congress clearly
intended to prohibit the creation of a complete
and permanent listing of firearms, firearms
owners, or firearms transactions. But the
prohibition on establishment of a registry does
not bar a listing that would routinely purge any
such information after a short period of time.
Congress also clearly intended to prohibit the
establishment of a registry that would be used
for purposes other than ensuring the proper
functioning of the NICS system that Congress
directed be created. Consistent with its purpose
of forbidding the creation of a permanent
registry, Congress provided that records of
firearms transactions allowed to proceed
be, at some unspecified point, destroyed. 18
U.S.C. § 922(t)(2). As the Attorney
General concluded, the maintenance of an audit
log for a limited time and purpose is wholly
consistent with the prohibition on the
establishment of a firearms registry.
The reasonableness of the Attorney General’s
conclusions is highlighted by reference to
registries created under other statutory
schemes, which have an aspect of permanence and
completeness that is plainly lacking in the
audit log. For example, Congress in the National
Firearms Act provided for the creation of a
"central registry" of machine guns and certain
other firearms. 26 U.S.C. § 5841. This Act
contains no provision for purging any
information in this registry, which lists the
firearm itself, the date of registration and the
identification and address of the firearms
owner. See id., § § (a)
(1) - (3). The National Firearms Act also
mandates the annual registration of certain
firearms importers, manufacturers and
Page 25
dealers. 26 U.S.C. § 5802. This provision
does not provide for the destruction of any
records in the registry, and in fact requires
annual re-registration, ensuring the continued
accuracy of the information in the registry.
These registries are clearly intended to be
complete and permanently available collections
of information. See also 42 U.S.C. §
274a (directing the Secretary of the United
States Department of Health and Human Services
to create a "registry of the recipients of organ
transplants * * * [to facilitate] ongoing
evaluation of the scientific and clinical status
of organ transplantation"). The six-month
snapshot of potential firearms transferees in
the audit log reveals virtually nothing about
the universe of firearms owners in the United
States.
The NRA suggests that the purpose behind
creating a registry of firearms, firearms owners
or firearms transactions would be the "‘compil
[ation] of lists of handgun buyers, ‘" with the
ultimate goal of "‘confiscation of guns." NBr.
17 (citing 135 Cong. Rec. S8267 (June 20, 1991);
see also Cong. Rec. S16328 (Nov. 19, 1993)
(concern that government would "compil[e] a
master list of guns and gunowners"). The audit
log would be of no use in that regard. The audit
log contains no information about actual gun
ownership. It is only a listing of transactions
that were allowed to proceed, and contains no
information about whether the individual who
submitted information for a NICS background
check actually purchased a firearm. In addition,
at any given time the audit log presents only a
snapshot of trarsactions that were allowed to
proceed in the previous six
Page 26
months, and by regulation, records of
transactions allowed to proceed may be used only
to audit the performance of the NICS system. 28
C.F.R. § 25.9(b)(2). The audit log thus
poses no threat, despite the fears of certain
legislators, to the purported "‘civil rights of
American gun owners.’" NBr. 17.
2. Contrary to the NRA’s contention (NBr.
12), subsection 103(i)(1) of the Act, which
effectuates the Act’s ban on the creation of a
firearms registry, does not impose a categorical
ban on the creation of any records of allowed
transfers. That subsection of the Act provides
that no federal department, agency, officer, or
employee may:
require that any record or portion thereof
generated by the system established under this
section be recorded at or transferred to a
facility owned, managed, or controlled by the
United States or any State or political
subdivision thereof.
Brady Act § 103(1)(i), 18 U.S.C. §
922 note. As discussed above, Congress dealt
with the Attorney General’s retention of records
of allowed transfers in the records destruction
provision of the Act, section 922(t)(2) . In
subsection 103(i)(1) , Congress addressed what
the Attorney General, and other federal
departments, agencies, officials and employees,
may require third parties to do with records
generated by the NICS system. That section
prohibits the Attorney General from imposing
additional reporting requirements on firearms
dealers, in order to centralize the records of
dealers and establish a federal firearms
registry.
Page 27
The language of subsection 103(i)(1) is
substantially similar to language in the
Firearms Owners Protection Act that was intended
to prevent the Bureau of Alcohol, Tobacco and
Firearms ("ATF") from centralizing records of
firearms dealers and creating a federal firearms
registry.
7See 18 U.S.C. § 926(a). Congress
passed this measure in response to rules
proposed by the ATF that would have imposed new
reporting requirements on firearms dealers. Both
ATF and the Government Accounting Office
("GAO"), which conducted an audit of ATF’s
compliance with the Firearms Owners’ Protection
Act provision, have interpreted the provision to
forbid the ATF from prescribing rules and
regulations to impose additional requirements on
dealers, beyond those in existing law, to
transfer records of firearms transactions to the
ATF. ATF and the GAO agree that the Firearms
Owners’ Protection Act provision does not place
any restriction on what ATF may do internally
with information it otherwise acquires from
firearms dealers. Federal Firearms Licensee
Data: ATF’s Compliance With Statutory
Restrictions, Letter Report, Sept. 1]. 1996,
GAO/GGD-96-174 at pp. 5, 15.
Page 28
The nearly identical language in the Brady Act
likewise restricts the federal government from
placing additional reporting requirements on
firearms dealers as a means of compiling
information to establish a firearms registry.
Thus, for example, firearms dealers could not be
required to provide the FBI with copies of the
forms completed by potential firearms
transferees, which would not be subject to the
Act’s destruction requirement.
The NRA’s interpretation of subsection 103(i)
(1), which would prohibit the federal government
from making any record of an allowed transfer,
is impossible to square with the rest of section
103(i), with the Brady Act as a whole, or with
the legislative history of the Brady Act.
Nothing in the legislative history of the Act
indicates that Congress thought that section
103(i)(1) forbade the creation of any record
pertaining to an allowed transfer. The House
Committee Report section by section analysis of
the Act states that § 103(i) "prohibits any
Federal department, agency, officer, or employee
from using the system or any part thereof to
establish a registry of firearms, firearms
owners, or firearms transactions." H.R. Rep. No.
103-344 at 20 (1993), reprinted in 1993
U.S.C.C.A.N. 1984, 1997. If Congress had so
intended, there would have been no need for the
numerous attempts of various members of
Congress, as discussed above, through
amendments, appropriations restrictions or
imposition of penalties, to impose a requirement
of immediate or near-immediate destruction of
records of allowed transfers. This legislative
history makes clear that Congress intended to
address the issue
Page 29
of the Attorney General’s retention of records
of allowed transfers through the records
destruction requirement of the statute, 18
U.S.C. § 922(t)(2), not through subsection
103(i)(1)
The NRA’s interpretation of subsection 103(i)
(1) is also at odds with other sections of the
Brady Act, which expressly contemplate that the
government will retain NICS records. The Brady
Act requires the retention of the NICS
transaction number and the date it was assigned
in instances where a transfer is allowed. 18
U.S.C. § 922(t)(2). Under the NRA’s
reading of subsection 103(1)(1), however, such
information may not be recorded at all. The Act
also expressly contemplates that records of
allowed transfers will be made, providing that
when a firearms transaction is allowed, the
"system shall * * * destroy all records of the
system with respect to the call (other than the
identifying number and the date the number was
assigned) and all records of the system relating
to the person or the transfer." Ibid. If,
as the NRA suggests, subsection 103(1)(1)
prohibits the recordation of any information,
there would be no record to destroy as required
elsewhere in the statute. The Brady Act also
contemplates that in some cases, responses to
firearms dealers may take as long as three days.
See 18 U.S.C. § 922(t)(1). If no
record of an allowed transfer could ever be
made, the FBI would not be able to keep
information on the inquiry during that three day
window, in order to determine what response to
provide to the firearms dealer.
The NRA’s reading of subsection 103(1)(1) also
renders the accompanying subsection, 103(i)(2),
surplusage. That subsection
Page 30
prohibits the federal government from using the
information it receives pursuant to the statute
to establish a federal firearms registry, except
with respect to disallowed transactions. If
subsection 103(i)(1) were an absolute bar on
the retention of any record pertaining to an
allowed transfer, there would be no need to
forbid the establishment of a federal firearms
registry, since the government would under no
circumstances have any information that would
enable it to do so.
II. STATE RETENTION OF RECORDS OF FIREARMS
TRANSACTIONS DOES NOT VIOLATE THE BRADY ACT.
The Attorney General’s regulations allow states
to serve, on a voluntary basis, as Points of
Contact for the NICS— that is,
intermediaries between the FBI and licensed
dealers. 28 C.F.R. § 25.6(d). Where the
state serves as a point of contact, dealers will
contact the designated state agency for a
background check rather than the FBI. Some
states serving as points of contact will have
independent state law provisions that also
require background checks prior to firearms
transfers, and such states will perform
background checks as required by state law in
addition to contacting the NICS. 28 C.F.R. §
25.2. The law in some states requires retention
of records of firearms background checks,
including records on allowed transfers. The
Attorney General determined that such
independent state law requirements are not
preempted by the Brady Act. 28 C.F.R. §
25.9(d)(state does not have to destroy records
that are "part of a record systerm created and
maintained pursuant to independent state law
regarding firearms transactions") . Conversely,
the Attorney
Page 31
General determined that Congress did not intend
that states that require the retention of
records on firearms transactions should be
prohibited from participating in the cooperative
effort to conduct background checks.
This conclusion is wholly reasonable. Congress
has expressly stated in the Gun Control Act that
it does not intend to occupy the field of
firearms control. See 18 U.S.C. §
927. Nothing in the Brady Act or the 1999
Appropriations Act provides that states serving
as points of contact must destroy information on
allowed transfers. The Brady Act’s prohibition
on the establishment of a federal firearms
registry, Brady Act § 103(i), 19 U.S.C.
§ 922 note, restricts only federal
government agencies and employees from creating
or maintaining a registry of firearms, firearm
transactions or firearm owners. This provision
does not preempt state law requiring the
maintenance of records of firearms transactions.
The Brady Act also directs that if a transfer is
allowed, "all records of the system" shall be
destroyed. 18 U.S.C. § 922(t)(2). The
"system" referred to in that provision is the
NICS system, or any subsequent federal system
established pursuant to the Act by the Attorney
General; this directive does not apply to state
systems or databases.
Likewise, the 1999 Appropriations Act forbids
the use of appropriated federal funds for "any
system to implement 18 U.S.C. § 922(t)"
that does not require the destruction of records
of transfers allowed to proceed. Section 621,
title VI, Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999, Pub. L.
No. 105-277. The "system to implement 18 U.S.C.
Page 32
§ 922(t)" referred to in that provision is
the NICS, or any subsequent federal system
developed by the Attorney General. State systems
of firearms regulation are not covered by this
provision. Even if a state receives federal
funds for its service as a point of contact, it
would not retain records of allowed transactions
pursuant to "a system to implement 18 U.S.C.
§ 922(t)," as prohibited by the
appropriations measure, because the state system
is not such a system.
Moreover, the Attorney General determined that
if a state performs background checks as a
matter of state law, and state law requires
retention of records of firearms transactions,
then the records of the state background check
will include the name and other identifying
information on every person on whom a NICS check
is also performed. The actual records from the
NICS check, therefore, will not add any more
information to what the state already retains
under its own law. JA 93.
The Attorney General’s regulations permitting
states that serve as points of contact to retain
information on allowed transfers if state law so
requires is in no way contrary to the mandates
of the Brady Act and the 1999 Appropriations
Act, and is wholly consistent with Congress’s
determination that states should have firearms
regulation programs unfettered by the federal
government. The Attorney General’s regulation is
therefore reasonable and entitled to deference.
The NRA claims that the states should not be
permitted to serve as points of contact at all,
because the Brady Act does not authorize the
delegation of duties to states and localities.
Page 33
NBr. 28. This argument is flatly inconsistent
with Congress’s instruction to the FBI in the
conference report to the 1999 appropriations
measure, to increase the involvement of
states as points of contact. See 144
Cong. Rec. Hl1044, H11306 (Oct. 19, 1998)
(stating that "the FBI is expected to pursue
proposals to increase the number of states
serving as points of contact for the NICS
system"). Moreover, absolutely nothing in the
Act suggests that the Attorney General is
prohibited from allowing the states to serve
such a function. The Act gives the Attorney
General broad discretion to establish the NICS
and determine how to maximize its efficient and
effective operation. The Brady Act explicitly
involved state officers in performing background
checks in the interim period while the NICS
system was being developed, and nothing in the
Act suggests that the Attorney General may not
permit states to voluntarily serve as
intermediaries between the FBI and federal
firearms licensees in the NICS system.
III. THE PLAINTIFFS IN THIS CASE LACK STANDING
TO ASSERT THE FOURTH AMENDMENT RIGHTS OF THIRD
PARTIES, AND THEIR CLAIM WAS NOT SET FORTH IN
THE COMPLAINT AND IS NOT RIPE.
The NRA asserts that the FBI will utilize the
audit log to conduct warrantless searches of
firearms dealers at their places of business,
and will conduct intimidating interviews of
transferees who are suspected of using the names
of others to procure a firearm, thereby
violating the Fourth Amendment. NBr. 35-40. For
a host of reasons, this Court should not
entertain this argument.
Page 34
The plaintiffs in this lawsuit lack standing to
assert the Fourth Amendment rights of federal
firearms dealers. As this Court has recognized,
"[o]rdinarily, one may not claim standing * *
* to vindicate the constitutional rights of
some third party." Hutchins v. District of
Columbia, 144 F.3d 798, 802 (D.C. Cir. 1998)
(internal citation omitted), rev’d on other
grounds,
Hutchins v. District of Columbia, 188
F.3d 531 (D.C. Cir. 1999). The plaintiffs have
made no showing that they satisfy the
requirements for third party standing.
See Hutchins, 144 F.3d at 802-803. Nor
does either of the organizational plaintiffs,
the NRA or the Law Enforcement Alliance of
America, have organizational standing to assert
the constitutional rights of any of their
members, since neither has alleged that any of
their members have been, or might be
investigated for allegedly submitting false
information to the NICS. SeeCommittee
for Full Employment v. Blumenthal, 606 F.2d
1062, 1067 (D.C. Cir. 1979)
This claim is not properly presented in this
case, because the NRA set forth no Fourth
Amendment claim in its complaint, nor did it
allege that any searches of firearms dealers’
premises or interviews of suspected unlawful
transferees had taken place. See JA
6-21. This claim is completely speculative: the
NRA’s contentions that the FBI may at some time
conduct searches and interviews that may violate
the Fourth Amendment rights of firearms dealers
or suspected unlawful firearms transferees are
based on inferences it draws from commentary to
the final rule. The commentary merely states,
however, that audits of the system will permit
discovery of misuse of the NICS by firearms
dealers
Page 35
or by persons who are barred from purchasing
guns. JA 93. Neither the commentary nor the
final rule says anything about the methods by
which such audits will be accomplished. The
NRA’s unfounded speculation as to hbw such
audits will be conducted does not set forth an
actionable claim. Moreover, in a proposed rule
issued in March 1999, the Attorney General
proposed that audits of firearms dealers will be
conducted in conjunction with the Bureau of
Alcohol, Tobacco and Firearms’ audits of
dealers, and the FBI will not enter firearms
dealers’ premises. See 64 Fed. Reg.
10264. This proposed rule underscores the fact
that the NRA’s challenge is entirely premature.
CONCLUSION
For the foregoing reasons, the judgment of the
district court should be affirmed.
Respectfully submitted,
DAVID W. OGDEN
Acting Assistant Attorney General
WILMA A. LEWIS
United States Attorney
MARK B. STERN
SUSAN L. PACHOLSK
Attorneys. Appellate Staff
Civil Division
Department of Justice