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 to 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.
NATIONAL RIFLE ASSOCIATION OF AMERICA,
INC., et al., Appellants
V.
JANET RENO, Appellee
REPLY BRIEF FOR APPELLANTS
Appeal from the U.S. District Court
for the District of Columbia
District Ct. No. 98cv02916
Stephen P. Halbrook
Richard E. Gardiner
Counsel for Appellants
SUMMARY OF ARGUMENT
§ 103(i)(1) of the Brady Act prohibits
the federal government from requiring that
"any record" which is "generated by the
[national instant criminal background check]
system" (NICS) be "recorded at or
transferred to" a government facility. This
clearly precludes the NICS-generated records
of approved firearm transferees which are
recorded in the "audit log."
For the first time on appeal, the Attorney
General argues that this does not apply to
the records in the audit log but only serves
to preclude the Attorney General from
"imposing additional reporting requirements
on firearms dealers." This ignores that the
statute concerns any and all records
"generated by" NICS, i.e., the very records
which compose the audit log.
The Attorney General argues that the
provision cannot be read literally because
18 U.S C. § 922(t)(2), in pi’oviding
that all records of an approved transaction
be destroyed, also provides that the unique
transaction number and the date shall be
retained. Yet there is nothing to prevent
Congress from establishing a general rule
and carving out limited exceptions. The need
to carve out exceptions exhibits the breath
of the prohibition.
§ I 03(i)(2) of the Act provides that no
department of the United States may "use the
system established under this section to
establish any system for the registration
of. . . firearm owners, or firearm
transactions," except regarding ineligible
persons. In ordinary linguistic usage,
"registration" is a list of names kept by an
official, and "any" means "some, no matter
how much or low little." The audit log is a
system of registration.
The Attorney General attempts to replace
"any system of registration" with "any
permanent system of registration. This
restrictive reading has no lexicographical
support. Nor does it have precedent in the
National Firearms Act, which provides for a
"central registry" of persons only so
Page 1
long as they are "entitled to possession of
[certain] firearms," which changes with the
transfer of ownership. 26 U.S.C. § 584
1(a)(3). conceptually, "any system of
registration" may have a short or a long
duration.
The Attorney General writes: "The audit log
thus poses no threat, despite the fears of
certain legislators, to the purported ‘civil
rights of American gun owners." Yet it was
for congress to decide what might threaten
the "purported" civil rights of such
persons, and it is not the place of the
Attorney General to question congress’
enactment of § 103(1).
18 U.S.C. § 922(t)(2) commands that, on
a determination that a transfer is lawful,
NICS shall "assign" a unique number,
"provide" it to the licensee, and "destroy"
all records of the system with respect to
the call (other than the identifying number
and the date) and all records of the system
relating to the person or the transfer. No
grace period is authorized in which to
retain such records. By contrast, the
Interim Provision provided that chief law
enforcement officers conducting background
checks must destroy all information about
the transaction within 20 days. §
922(s)(6)(B)(i). That suggests application
of the maxim that specific mention of one
thing implies the exclusion of another,
i.e., that no grace period is implied in
§ 922(t)(2).
Rather than focusing on the language that
passed, the Attorney General is primarily
interested in language that did not pass.
The Congress enacted the Senate version of
§ 922(t)(2), which directed NICS to
"destroy" the records, and not the House
version, which used the terms "immediately
destroy." However, this was among the
differences that the Conference Report
characterized as technical and not
substantive.
The Attorney General also points to bills
that were proposed later but not enacted.
However, "this Court is reluctant to draw
inferences from Congress’ failure to act."
Schneidewind v. ANR
Page 2
Pipeline Co., 485 U.S. 293, 306 (1988).
Members of Congress who do not support new
bills may believe that existing law already
provides for the subject of those bills.
The Attorney General asserts that "nothing
in the statute affords a ‘privacy’ interest
unique to the individual plaintiffs" and
that the audit log must be kept to protect
the "privacy" interests of a class of other
persons. Yet the Act protects the privacy
rights of only one class of persons, i.e.,
persons who are legally eligible to receive
firearms and who are protected by §
922(t)(2) and § 103(i). The only other
class of persons the Act concerns are
persons who NICS determines are not legally
eligible to receive firearms and who are not
entitled to have their NICS-generated
records destroyed under those provisions.
States acting as federal agents to
administer the Act are bound by the Act’s
privacy protections. Such states may operate
their own separate background check systems
independently of federal law and, when so
doing, are not bound by the Act. But the
Attorney General cannot appoint points of
contact (POCs) as NICS agents for every
purpose except for the Act’s privacy
provisions.
In states where POCs administer NICS, the
Attorney General requires federal firearms
licensees (FFLs) to contact such POCs and
does not allow them to contact the federal
NICS system directly. By requiring an FFL to
contact a POC which does not destroy records
pursuant to the Brady Act, the Attorney
General is in violation of § 103(i),
which provides that no federal officer may
require that any record "generated by the
system established under this section be
recorded at or transferred to a facility
owned, managed, or controlled by . . . any
State or political subdivision thereof. . .
." Similarly, if the Attorney General wishes
to appoint a POC as an agent of NICS, she
cannot declare that the POC is exempt from
the destruction requirement of §
922(t)(2).
Page 3
The keeping of the audit log on law-abiding
citizens for broad criminal enforcement
purposes seriously implicates rights under
the Fourth Amendment. A statute should be
interpreted to avoid serious constitutional
problems.
The Attorney General argues that the Court
should not consider NRA’s concerns regarding
the Fourth Amendment. However, it is
pertinent for this Court to consider the
uses to which the audit log, as explained in
the commentary to the final regulations,
will be and is being used. Given that it is
the Attorney General’s own regulation and
commentary which implicate the Fourth
Amendment, she cannot complain if
law-abiding persons who are in the audit log
and may be subjected to unwarranted
surveillance raise the Fourth Amendment
implications of her policies. This Court is
entitled to utilize all pertinent tools of
statutory construction, including the
avoidance of a reading of the statutes at
issue that raises constitutional problems.
ARGUMENT
I. § 103(i) PROHIBITS RECORDATION OF
NAMES AND IDENTITIES
The Attorney General argues that §
103(i) is irrelevant to this case, for
Congress "spoke directly to the Attorney
General’s retention of records" in §
922(t)(2). Brief for Appellee ("AG Br.")
23-24, 29-30. The implication is that
Congress would protect the privacy interests
of lawful firearm transferees in one
subsection and would not do so elsewhere.
Perhaps Congress felt it necessary to tell
the Attorney General in more than one way
not to keep records on law-abiding firearm
owners. § 922(t)(2) and § 103(i)
certainly complement each other.
Apprehension in Congress that the Attorney
General would not take these privacy
protections seriously, in view of the
regulation and the government’s position in
this litigation, was fully justified.
Page 4
a. § 103(i)(1) Prohibits Transfer to and
Recordation of
NICS-Generated Records at Government
Premises
§ 1 03(i)(1) of the Act provides that no
department of the United States 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. . . ." A semicolon, the disjunctive
"or," and a subparagraph prohibiting a
registration system follow, including an
exemption for records about persons legally
ineligible to receive firearms.
Both the commentary to the final regulation
and defendant’s briefs in the court below
are silent on the meaning of §
103(i)(1). Now, for the first time since
that provision was enacted in 1993, counsel
has invented the argument that §
103(i)(1) only "precludes the Attorney
General from requiring that third parties
record or transfer information to a federal
facility" and "does not implicate the
Attorney General’s retention of NICS
records." AG Br. 12-13. More specifically,
§ 103(i)(1) has no effect on "the
Attorney General’s retention of records of
allowed transfers," and instead it addresses
what the federal government "may require
third parties to do with records generated
by the NICS system." It "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." AG Br. 27.
Other than creative lawyering, the source of
this novel interpretation is a mystery.
Certainly nothing in the statute suggests
this reading, nor does a single iota of the
legislative history. § 103(i)(1)
prohibits any federal department from
requiring that "any record or portion
thereof generated by the system established
under this section" be "recorded at or
transferred to" any federal or state
facility. "This section" means § 103 of
the Brady Act, which is entitled "National
Instant
Page 5
Criminal Background Check" and which is the
comprehensive mandate to the Attorney
General to establish the NICS. The following
Aristotelean syllogism, taught in freshman
college courses, is in order:
No federal department may require that any
NICS-generated record may be recorded at or
transferred to any federal or state
facility.
The name and other identification of a
NICS-approved firearms transferee is a NICS-
generated record.
Therefore, no federal department may require
that the name and other identification of a
NICS-approved firearms transferee may be
recorded at or transferred to any federal or
state facility.
§ 103(i)(1) refers to records "generated
by" NICS, i.e., records created by the FBI
whilp operating NICS. Since such records
plainly are not firearms dealers records,
§ 103(i)(1) has nothing to do with
reports by dealers. Thus, § 103(i)(1) is
not a restriction on requiring additional
reporting by dealers, but is a restriction
on records created by operation of NICS.
1
The agency itself has never articulated the
above interpretation, and "the courts may
not accept appellate counsel’s post hoc
rationalizations for agency action."
Motor Vehicle Mfrs. Assiz. v. State Farm
Mutual, 463 U.S. 29, 50(1983). Bowen
v. Georgetown University Hospital, 488
U.S. 204, 212-13 (1988) stated about agency
arguments invented during litigation in the
context of Chevron and similar cases:
We have never applied the principle of those
cases to agency litigating positions that
are wholly unsupported by regulations,
rulings, or administrative practice. To the
contrary, we have declined to give deference
to an agency counsel’s interpretation of a
statute where the
Page 6
agency itself has articulated no position on
the question, on the ground that "Congress
has delegated to the administrative official
and not to appellate counsel the
responsibility for elaborating and enforcing
statutory commands." . . . ("The courts may
not accept appellate counsel’s post hoc
rationalizations for agency [orders]"). . .
. Deference to what appears to be nothing
more than an agency’s convenient litigating
position would be entirely inappropriate.
[Citations omitted.]
The prohibitory language of § 103(i) was
taken from 18 U.S.C. § 926(a), as
amended by the Firearms Owners’ Protection
Act of 1986:
The Secretary may prescribe only such rules
and regulations as are necessary to carry
out the provisions of this chapter.. . . No
such rule or regulation prescribed after the
date of the enactment of the Firearms
Owners’ Protection Act may require that
records required to be maintained under this
chapter or any portion of the contents of
such records, be recorded at or transferred
to a facility owned, managed, or controlled
by the United States or any State or any
political subdivision thereof, nor that any
system of registration of firearms, firearm
owners, or firearms transactions or
dispositions be established.
This only prohibits, according to the
Attorney General, ATF from imposing
"additional requirements . . . beyond those
in existing law, to transfer records of
firearms transactions to the ATF" and "does
not place any restriction on what ATF may do
internally with the information it otherwise
acquires from firearms dealers."
2
Since § 926(a) is "nearly identical" to
§ 103(i), the latter only "restricts the
federal government from placing additional
reporting requirements" on FFLs, such as
requiring FFLs to provide the FBI with the
forms completed by firearms transferees. AG
Br. 28-29.
Despite the "nearly identical" language of
§ 926(a) and § 103(i), the classes
of records affected are diametrically
different. § 926(a) banishes from ATF
premises "records required to be maintained
under this chapter," i.e., records
maintained by licensees at their premises,
not some
Page 7
illusive "additional" records.
3
By contrast, § 103(i) affects
government-created records, i.e., records
"generated by" NICS. Thus, contrary to the
Attorney General, the limitations imposed by
§ 926(a) cannot be transposed to §
103(i)(1).
§ 103(i)(1) does not "prohibit the
federal government from making any record of
an allowed transfer," continues the Attorney
General, because nothing in the "legislative
history" so states. AG Br. 29. Of course,
nothing in the legislative history supports
the Attorney General’s argument either. In
any event, it is "the plain language of the
statute" that must govern an agency.
National Rifle Ass’n v. Brady, 914
F.2d 475,483-84(4th Cir. 1990), cert.
denied499 U.S. 959 (1991) (invalidating
ATF regulations). Tafflin v. Levitt,
493 U.S. 455, 472 (1990) (Scalia, J.,
concurring) notes: "One can hardly imagine
an ‘implication from legislative history’
that is ‘unmistakeable’— i.e., that
demonstrates agreement to a proposition by a
majority of both Houses and the
President— unless the proposition is
embodied in statutory text to which those
parties have given assent." Yet the Attorney
General would nullify the statutory text
here because it is allegedly not supported
by "legislative history.
4
§ 103(i)(1) cannot mean what it says,
argues the Attorney General, for elsewhere
the Act
Page 8
provides that NICS, on assigning a unique
identification number to an approved
transfer and communicating it to the FFL,
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."
§ 922(t)(2). Retention of the unique
number and the date, claims the Attorney
General, are incompatible with a literal
interpretation of~ 103(i)(1). AG Br. 30.
This suggests that Congress is not allowed
to establish a general rule and to make
exceptions. "In expounding a statute, we
must not be guided by a single sentence or
member of a sentence, but look to the
provisions of the whole law, and to its
object and policy." Mova Pharmaceutical
Corp. v. Shalala, 140 F.3d 1060, 1069
(D.C. Cir. 1998).
5
Finally, the Attorney General contends that
if § 103(i)(1) barred retention of
records of allowed transfers, §
103(i)(2) would be "surplusage" because it
prohibits registration of firearm owners and
transactions, but information for such
registration would have already been
disallowed by § 103(i)(1). AG Br. 31.
Yet, as shown below, the Attorney General
argues that keeping a listing of persons and
identities of approved transfers for six
months is not "any system of registration"
prohibited by § 103(i)(2). Under this
view, § 103(i)(1) would not be
"surplusage." In any event, by enacting both
parts of § 103(i) as well as §
922(t)(2), Congress attempted to tell the
Attorney General in three separate ways not
to keep records on lawful firearm
transferees.
Page 9
b. § 1 03(i)(2) Prohibits Listings of
Firearm Owners or Transactions
§ 103(i)(2) of the Act provides that no
department of the United States may "use the
system established under this section to
establish any system for the registration
of. . . firearm owners, or firearm
transactions," except regarding ineligible
persons. As the Attorney General observes,
the Act does not define "registration." AG
Br. 24. Muscareio v. United States,
524 U.S. 125, 127-28 (1998) applied the
following interpretative method: "We begin
with the statute’s language. The parties
vigorously contest the ordinary English
meaning of the phrase ‘carries a firearm.’.
. . Consider first the word’s primary
meaning." The Court proceeded to quote from
dictionaries. Id.See also United
States v. Bossinger, 12 F.3d 28, 29-30
(3d Cir. 1993) (using dictionaries to
discover "common parlance" and "find[ingJ no
authority, legal or lexicographical," for
restrictive use of term argued by
government).
"Register" means "a record or list of names.
. ., often kept by an official appointed to
do so," and "registration" means "(1) a
registering or being registered (2) an entry
in a register." Webster’s New World
Dictionary 1130 (1988). "Any" means
"some, no matter how much or how little" or
"even one; the least amount or number of."
Id. The audit log is clearly
encompassed in the terms "any" system
of"registration." Oblivious of the ordinary
linguistic usage enacted by Congress, the
Attorney General would rewrite the law only
to prohibit "any permanent system"
for the registration of firearm owners and
transactions, rather than to prohibit "any
system" for registration. It is agreed that
registration means "a listing," but not a
listing if just kept for a "short" period of
time. AG Br. 25. This interpretation is
precluded by the statute’s use of the word
"any."
While the Attorney General does not state
whether the "permanence" of the registration
system must mean during the life of the
registered person or for eternity, she
points to the National
Page 10
Firearms Act as such a system. Yet 26 U.S.C.
§ 584 1(a)(3) provides for a central
registry which limits its duration to only
so long as a person is "entitled to
possession of the firearm," and § 584
1(c) provides that "each firearm transferred
shall be registered to the transferee,"
which may be constantly changing. No
provision is made for registration of
transferors who are no longer entitled to
possession. Registration may well be of only
"short" duration. Further, § 5802
requires an annual registration of dealers,
but is silent about former dealers who are
out of business. The temporary duration of
the registration does not preclude it from
being registration.
The Attorney General surmises that the audit
log "reveals virtually nothing about the
universe of firearms owners." AG Br. 26.
However, § 103(i)(2) prohibits "any
system for the registration of
• . . . firearm owners, or firearm
transactions," even if it does not reveal
the entire "universe" of firearm owners.
Quoting congressional concerns against a
master list of firearm owners, a consequence
of which could be confiscation, the Attorney
General argues that "the audit log would be
of no use in that regard." It seems that a
registry of approved firearm transactions
reveals nothing about who actually "owns"
firearms or whether anyone actually
"purchased a firearm." AG Br. 26. Yet it
would be ludicrous not to presume
that almost all approved transactions
actually are consummated and actually result
in firearm ownership.
The Attorney General concludes: "The audit
log thus poses no threat, despite the fears
of certain legislators, to the purported
‘civil rights of American gun owners." AG
Br. 27. Yet it was for Congress to decide
what might threaten such civil rights, and
the majority in Congress acceded to what the
Attorney General characterizes as "the fears
of certain legislators" in enacting §
103(i). Bluntly put, the provisions of the
Act at issue were enacted to protect the
privacy interests of the
Page 11
class of lawful transferees from the
Attorney General. It is the duty of the
Attorney General to administer the law as
written, not to argue that Congress was
mistaken.
II. THE MEANING OF § 922 (t)(2) MUST
BE
DETERMINED FROM THE LANGUAGE THAT
PASSED, NOT LANGUAGE THAT DID NOT PASS
§ 922(t)(2) commands that, on
determination that a transfer is lawful,
NICS shall assign a unique number, provide
it to the licensee, 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." No grace period was
authorized in which to retain such records.
By contrast, the Interim Provision provided
that chief law enforcement officers (CLEOs)
conducting background checks "shall, within
20 business days after the date the
transferee made the statement . . ., destroy
the statement, [and] any record containing
information derived from the statement . . .
." § 922(s)(6)(B)(i). That suggests
application of the maxim expressio unius
est erclusio alterius (specific mention
of one thing implies the exclusion of
another). Leatherman v. Tarrant County
NICU, 507 U.S. 163, 168 (1993).
Rather than focusing on the language that
passed, the Attorney General is primarily
interested in language that did not pass.
The Congress enacted the Senate version of
§ 922(t)(2), which directed NICS to
"destroy" the records, and not the House
version, which used the terms "immediately
destroy." Cp. NRA Br. 22-23
with AG Br. 19-20. The Attorney
General disregards several critical
circumstances. Senator Craig stated of the
Senate version that the records "should not
stand once the background check is done."
CONG REC. S 16328 (Nov. 19, 1993). No one
disagreed, and in fact in the entire
legislative history of the Act, no one
suggested that records could be retained.
Further, the Conference Report stated:
Page 12
The differences between the House bill, the
Senate amendment, and the substitute agreed
to in conference are noted below, except for
clerical corrections, conforming changes
made necessary by agreements reached by the
conferees, and minor drafting and clerical
changes.
H.R. Conference Report No. 103-412, at 13
(Nov. 22, 1993). The report proceeded to
list seven of these "differences" between
the House and Senate versions. Id. at
13-14. The destruction requirement was not
among these differences, meaning that that
subject was among the "clerical corrections,
conforming changes. . ., and minor drafting
and clerical changes."
Members of Congress had every reason to
believe that the language as passed required
that records be destroyed forthwith on
approval of the transaction. The term
"destroy" was used without any grace period,
unlike the 20-day allowance for record
destruction accorded to CLEOs. It defies
logic to argue that Congress intended to
allow the Attorney General a far greater
time period to destroy automated records
than the 20-day period Congress authorized
for paper records.
The Attorney General points to bills that
did not pass after enactment of the Brady
Act. AG Br. 20-23. This proves nothing about
the meaning of § 922(t)(2) or the
mandate of § 103(i). Rejecting
"petitioners’ reliance on Congress’
subsequent failure to enact proposed
legislation," Schneidewind v. ANR
Pipeline Co., 485 U.S. 293, 306(1988)
noted: "This Court is reluctant to draw
inferences from Congress’ failure to act."
Members of Congress who do not support new
bills may believe that existing law already
provides for the subject of those bills.
Id.See Fogarly v. United
Stales, 340 U.S. 8, 13-14 (1950)
(subsequent legislative action did not
"supplant the contemporaneous intent of the
Congress which enacted" the law in
question); Walsh v. Brady, 927 F.2d
1229, 1233 n. 2 (D.C.Cir. 1991) (referring
to "oxymoronic ‘subsequent legislative
history" which "can add nothing").
No comparable circumstances existed in the
cases cited by the Attorney General. AG Br.
20.
Page 13
Hutto v. Finney, 437 U.S. 678, 694
(1978) involved statutory language about
which the Court stated:
The Act itself could not be broader. It
applies to "any" action brought to enforce
certain civil rights laws. It contains no
hint of an exception for States defending
injunction actions; indeed, the Act
primarily applies to laws passed
specifically to restrain state action. See,
e.g., 42 U.S.C. § 1983.
Thus, the statutory language is the source
of the Court’s holding that attorney’s fees
could be awarded against a state. Congress’
rejection of bills to immunize states from
fee awards was only one of several
circumstances that buttressed the language
of the statute. Id. The Court did
not, as the Attorney General would do here,
emasculate the language of the statute as
passed by Congress through inference piled
on inference about words that were not
included in the final language.
Similarly, the basis of the decision in
Autolog Corp. v. Regan, 731 F.2d 25,
32 (D.C. Cir. 1984) is a far cry from what
the Attorney General claims. Autolog
explained: "First, Congress has acquiesced
in Customs’ interpretation for almost a
century and has not acted to change it
during several revisions of the coastwise
laws." Id. (emphasis added). The
Attorney General is hardly in this position
here. The court also found it relevant that
Congress rejected a proposal that would have
changed this long-term interpretation.
Id. But that fact alone was hardly
the basis of the statutory interpretation
set forth in that case.
The Attorney General seeks to blow up an
incidental footnote in R.J. Reynolds
Tobacco Co. v. Durham County, 479 U.S.
130, 147 n. 16 (1986) into a dispositive
rule of law which does not exist. The
footnote states that rejection of certain
amendments "suggests" that Congress intended
a given result. Id. The meaning of
the Warehousing Act, the statute mentioned
in that footnote, was not even disputed in
that case. The issue in the case was whether
the federal law preempted certain state ad
valorem taxes.
Page 14
The Attorney General submits that "there is
no canon of statutory construction" that an
agency must be in compliance with the law
"when Congress does not establish a precise
timetable." AG Br. 21: Neither §
922(t)(2) nor § 103(i) exempt the
Attorney General from their proscriptions
for such time period as she may declare
violation thereof is "reasonable." The
Attorney General’s argument is comparable to
asserting that no precise timetable existed
in which the government was required to
comply with the privacy requirements at
issue in cases such as Alexander v. FBI, 971
F. Supp. 603, 605 (D.D.C. 1997) (Filgate),
United States v. Bacheler, 611 F.2d
443,447 (3d Cir. 1979) (unlawful seizure of
tax records), and Hobson v. Wilson,
737 F.2d 1, 7 (D.C. Cir. 1984) (illegal FBI
surveillance).
The "timetable" here is a question of
statutory construction. § 922(t)(2)
contains three seriatim commands:
"assign," "provide," and "destroy." Plainly,
"assign" and "provide" must be carried out
at once since § 103(b) requires that the
information "be supplied immediately."
Application of familiar rules of statutory
construction compel the conclusion that
"destroy" must also have been intended to
have been done immediately. "It is a rule
laid down by Lord Bacon, that copulatio
verborum indicat acceptationem in eodem
sensu, the coupling of words together
shows that they are to be understood in the
same sense. . . ." Neal v. Clark, 95
U.s. 704, 708-09 (1877). See Gustafson v.
AlloydCo., 513 U.S. 561, 575 (1995) ("a
word is known by the company it keeps (the
doctrine of noscitur a sociis). This
rule we rely upon to avoid ascribing to one
word a meaning so broad that it is
inconsistent with its accompanying words.. .
.")
The Attorney General asserts that "nothing
in the statute affords a ‘privacy’ interest
unique to the individual plaintiffs." AG Br.
22. An audit log must be kept, the Attorney
General argues, to protect the "privacy"
interests of another undefined class of
persons. But, as the Act potentially
Page 15
impairs the privacy rights of only one class
of persons, i.e., persons who are legally
eligible to receive firearms, it
concomitantly protects them. The only other
class of persons the Act concerns are
persons who NICS determines are not legally
eligible to receive firearms; they, however,
are not entitled to have their
NICS-generated records destroyed under those
provisions.
The Act creates no privacy rights for
persons about whom NICS "maintains
information," states the Attorney General,
but such persons privacy rights "are defined
in the Privacy Act, 5 U.S.C. § 552a." AG
Br. 22. To the contrary, § 922(t)(2) and
§ 103(i) prohibit possession by the
government of records on a defined class of
persons; the Privacy Act prohibits the
government from disclosing records to the
public. § 105 of the Brady Act provides
that its terms shall not "alter qr impair
any right or remedy" under the Privacy Act,
but this does not imply that additional
privacy interests are not protected by the
Brady Act.
In sum, § 922(t)(2) requires NICS to
destroy records of lawful firearm
transferees on approval of the transaction.
The audit log is unlawful.
III. STATES SERVING AS FEDERAL AGENTS IN
ADMINISTRATION
OF NICS ARE BOUND BY FEDERAL PRIVACY
REQUIREMENTS
The NRA does not contend that states may not
have their own background check systems
(with their own record destruction or
retention requirements) or that federal law
preempts state law on this subject. See AG
Br. 32. NRA’s contention is that states
acting as federal agents to administer the
Act are as bound by the Act’s privacy
protections as the federal government. Such
states may operate their own separate
background check systems independently of
federal law and, when so doing, are not
bound by the Act. But the Attorney General
cannot appoint points of contact (POCs) as
NICS agents for every purpose except for the
Act’s privacy provisions.
The critical fact here is that, in states
where POCs administer NICS, the Attorney
General
Page 16
requires FFLs to contact such POCs and does
not allow them to contact the federal NICS
system directly. 28 C.F.R. § 25.6(d).
6
By requiring an FFL to contact a POC which
does not destroy records pursuant to the
Brady Act, the Attorney General is in
violation of — 103(i) of the Act, which
provides that "no department, agency,
officer, or employee of the United States,"
which includes the Attorney General,
"may— (1) 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. . . any State or
political subdivision thereof. . . ." In the
case of POC states which do not destroy the
record on approval of the transaction, the
regulation directly requires the NICS-
generated record to be recorded at or
transferred to a state facility.
The Attorney General argues that §
103(i) only prevents the federal government
from establishing a registration system, but
wholly ignores § 103(i)(1). She also
argues that "all records of the system"
which must be destroyed under §
922(t)(2) refers only to the NICS system,
and "this directive does not apply to state
systems or data bases." AG Br. 32. To the
contrary, when the Attorney General directs
that an FFL must contact a POC in lieu of
NICS, the POC is acting as an agent of NICS.
Otherwise the Attorney General would have no
authority to require the FFL to contact the
POC. § 922(t)(1) provides that an FFL
shall not transfer a firearm to any other
person who is not licensed under this
chapter, unless—
(A) before the completion of the transfer,
the licensee contacts the national instant
criminal background check system established
under section 103 of that Act; [and]
(B)(i) the system provides the licensee with
a unique identification number; or (ii) 3
business days (meaning a day on which State
offices are open) have elapsed since the
licensee contacted the system, and the
system has not notified the licensee that
the receipt of a firearm by such other
person would violate subsection (g) or (n)
of this section. . . . (Emphasis
Page 17
added.)
Unless the POC is, for purposes of the
statute, a part of the "system," i.e., NICS,
an FFL has no legal obligation to contact
the POC. Further, as provided by §
922(t)(2), if receipt of the firearm would
not violate the law, "the system
shall" assign a unique number to the
transfer, provide it to the FFL, 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." The
Attorney General cannot treat the POC as an
agent of "the system" for every purpose
except the destruction requirement.
Compare 28 C.F.R. § 25.6(d)
through (1) (POCs serve every NICS function
in POC-designated states) with §
25.9(d) (transferee records in POC states
not subject to Act’s destruction
requirement if such records are "created and
maintained pursuant to independent state law
regarding firearms transactions").
The Attorney General argues that no harm is
done because the State would retain the same
information from its own State-required
background check. AG Br. 33. This
presupposes that State law generates the
same information as federal law, which may
or may not be the case. In any event, the
failure to require compliance with the Act’s
destruction requirement is not excused by
speculation that no harm was done.
7
Page 18
IV. THE ATTORNEY GENERAL MUST RAISE HER
POLICY
CONCERNS TO CONGRESS, NOT TO THIS COURT
A. Appellee’s Claims Based on Affidavits
are Not
Properly Before the Court and Should be
Stricken
It is fundamental that, in a motion to
dismiss under Rule 12(b)(6), the court must
accept as true all allegations of fact in
the complaint. Moore v. Agency for
International Development, 994 F.2d 874,
875 (D.C.Cir. 1993). However, the Attorney
General makes a number of factual claims
that contradict those allegations and which
are based on two affidavits which are not
properly before the Court in this appeal.
E.g., AG Br. 16-17. These affidavits
(Joint Appendix 102-12 1) were submitted by
defendant in opposition to NRA’s motion for
a preliminary injunction and concern alleged
reasons for the need of the audit log.
8
The district court did not rely on these
affidavits in its order dismissing this suit
for failure to state a claim upon which
relief can be granted pursuant to F.R.Civ.P.
12(b)(6). Thus, no claim could be made that
the district court implicitly converted the
motion to dismiss into a motion for summary
judgment. See F.R.Civ.P. 12(b) (last
sentence).
9
The Court should disregard any statements in
appellee’s brief based on the affidavits,
i.e., references to the Joint Appendix pages
102 through 121.
Should the Court treat these statements as
arguments and not evidence, they should be
rejected. For instance, it is asserted that
an audit log is needed so that supervisors
can review decisions made by examiners to
ensure that the decisions are correct. AG
Br. 16-17. If is unclear
Page 19
why the supervisor would do so only after
the decision has been made rather than at
the time of the decision, which could
prevent an improper approval or refusal.
B. "Necessity" is Not a Defense to the
Attorney
General’s Failure to Comply with the Law
Here
The Attorney General appears to argue that
it is just plain impossible to run the
system the way Congress mandated and that
the audit log is necessary for a variety of
policy reasons. AG Br.
15-17. The Attorney General must address
these policy concerns to Congress, not to
this Court. See National Rifle Ass’n v.
Brady, 914 F.2d 475, 483-85 (4th Cir.
1990), cert. denied 499 U.S. 959
(1991); Trahan v. Regan, 824 F.2d 96,
105 (D.C. Cir. 1987).
The Attorney General’s argument that an
audit log of 6 months duration (3 months
under~a proposed rule) is simply necessary
to run a system of background checks is
belied by the Interim Provision. §
922(s)(6)(B)(i) of that provision mandated
that CLEOs destroy all records concerning a
lawful firearms transferee within 20 days.
This 20-day grace period was granted because
many of the records were manual and the law
was already an imposition on state and local
officials.
10
Nothing exists which suggests that any audit
log was maintained or considered necessary
even within this narrow 20-day window. Yet
the Attorney General does not argue that the
Interim Provision was flawed for this
reason.
Eagle v. Morgan, 88 F.3d 620 (8th
Cir. 1996) is cited for the proposition that
police have made unauthorized use of
criminal records databases, such as NCIC,
and the audit log is needed to detect such
misuse. AG Br. 17 n. 4. However, the
wrongdoing in that case was not detected by
an
Page 20
audit log. See 88 F.3d at 622-23. The lesson
that police may misuse databases is exactly
the point Congress had in mind when it
precluded retention of records on approved
transferees.
V. THE STATUTE SHOULD BE CONSTRUED TO
AVOID FOURTH AMENDMENT PROBLEMS
The keeping of the audit log on law-abiding
citizens for broad criminal enforcement
purposes seriously implicates rights under
the Fourth Amendment. See NRA Br. 3
5-40. "Where a statute is susceptible of two
constructions, by one of which grave and
doubtful constitutional questions arise and
by the other of which such questions are
avoided, our duty is to adopt the latter."
Jones v. United States, 526 U.S. 227,
119 S.Ct. 1215, 1222 (1999).
The Attorney General argues that NRA lacks
standing to raise a Fourth Amendment claim.
AG Br. 35. NRA has not made a Fourth
Amendment claim. Rather, the Fourth
Amendment is invoked since it is pertinent
for this Court to consider the uses to which
the audit log, as explained in the
commentary to the final regulations, will be
and is being used. Contrary to the Attorney
General’s claim that the NRA’s concerns are
"speculative," AG Br. 36, the regulation and
the commentary explain that both FFLs and
transferees will be subjected to FBI
"audits," i.e., random criminal
investigations. See NRA Br. 36,
quoting 28 C.F.R. § 25.9(b)(2) and the
commentary at 63 FR 58303, 58304 (Oct. 30,
1998). The Attorney General argues that the
audit log is necessary in part for such
criminal investigations.
11
The Attorney General cannot expect to
explain why she believes the audit log is
necessary to ferret out crimes and then
protest if law-abiding persons who are in
the audit log, and may be subjected to
unwarranted surveillance, raise the Fourth
Amendment implications of her policies. This
Court is entitled to utilize all pertinent
tools of statutory
Page 21
construction, including the avoidance of a
reading that raises constitutional problems.
In sum, § 103(i) and § 922(t)(2)
should be interpreted according to their
plain words and also in a manner as to avoid
Fourth Amendment concerns.
CONCLUSION
The Court should reverse the judgment of the
district court.
CERTIFICATE OF COMPLIANCE
Compliance with F.R.App.P. 32(a)(7)(B) has
been met, in that the brief contains 6977
words.
Respectfully Submitted,
National Rifle Association of America, Inc.,
et al.,
Appellants
By Counsel
Stephen P. Halbrook
Richard E. Gardiner
Attorneys for Appellants