Text of 12/1/98 lawsuit:
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
[Note: the formatting of this HTML document is somewhat different
from the printed version submitted to the court.]
NATIONAL RIFLE ASSOCIATION OF )
AMERICA, INC. )
11250 Waples Mill Rd. )
Fairfax, VA 22030, )
)
LAW ENFORCEMENT ALLIANCE )
OF AMERICA, INC. )
7700 Leesburg Pike, Suite 421 )
Falls Church, VA 22043, )
)
JANE DOES I and II, and )
)
JOHN DOES I, III, and IV, )
)
Plaintiffs )
)
v. ) CIVIL ACTION NO.
)
JANET RENO )
Attorney General of )
the United States )
U.S. Department of Justice )
Washington, D.C., )
)
Defendant )
COMPLAINT
(For Declaratory Judgment and Injunctive
Relief and Writ of Mandamus)
1. This is an action pursuant to the Brady Handgun Violence
Prevention Act of 1993 ("Act"), Pub. L. 103-159, 107 Stat. 1536
(1993), to protect the privacy rights of lawful transferees of
firearms by requiring the destruction of records concerning persons
approved to receive firearms by the national instant criminal
background check system ("NICS") and to preclude any system for the
registration of firearms, firearm owners, or firearm transactions.
Parties
2. Plaintiff National Rifle Association of America, Inc. ("NRA"),
which has a membership of almost 3 million persons, is incorporated
under the laws of New York, with its principal place of business in
Fairfax, Virginia. The purposes of NRA include teaching firearms
safety, promoting the shooting sports, and fostering the lawful use
of firearms. Virtually all NRA members own firearms. NRA brings this
action on behalf of itself and its members.
3. Plaintiff Law Enforcement Alliance of America, Inc. ("LEAA") is a
non-profit membership association made up of over 65,000 members and
supporters consisting of law enforcement professionals and concerned
citizens dedicated to making America safer. A large proportion of
LEAA members own firearms. LEAA is incorporated in Virginia with its
principal place of business in Falls Church, Virginia. LEAA brings
this action on behalf of itself and its members.
4. Plaintiff Jane Doe I is a resident of New Jersey and an NRA
member. Plaintiff Jane Doe II is a resident of Virginia and an LEAA
member. Plaintiff John Doe I is a resident of Kentucky and an NRA
member. Plaintiff John Doe III is a resident of Ohio and a member of
NRA and LEAA.
Plaintiff John Doe IV is a resident of Arizona and an NRA member. All
such plaintiffs are citizens of the United States. They bring this
action under these pseudonyms so as not to forfeit their privacy
rights under the Act which this action is instituted to protect.
5. Defendant Janet Reno is the Attorney General of the United States,
U.S. Department of Justice, whose principal place of business is in
Washington, D.C. The Department of Justice and the Federal Bureau of
Investigation are subject to her supervision and control. She is
being sued in her official capacity as such.
Jurisdiction
6. Jurisdiction is founded on 28 U.S.C. ? 1331 in that this case
arises under the Constitution and laws of the United States, and is a
controversy to which the United States is a party; and on 28 U.S.C. ?
1361 in that a writ of mandamus is sought to compel an officer or
employee of the United States to perform a duty owed to the
plaintiffs. Plaintiffs also seek review pursuant to the
Administrative Procedure Act, 5 U.S.C. ? 701, et seq.
Background
The National Instant Criminal Background Check System
7. ? 103(b) of the Act provides:
Not later than 60 months after the date of the enactment of this Act,
the Attorney General shall establish a national instant criminal
background check system that any licensee may contact, by telephone
or by other electronic means in addition to the telephone, for
information, to be supplied immediately, on whether receipt of a
firearm by a prospective transferee would violate section 922 of
title 18, United States Code, or State law. (Emphasis added.)
8. ? 102(b) of the Act created 18 U.S.C. ? 922(t). Under ? 922(t)(1),
beginning 30 days after the Attorney General notifies licensed
firearms dealers, manufacturers, and importers that the NICS is
established, such licenses may not transfer a firearm to a non-
licensee, subject to certain exceptions, without having first
contacted the system. The licensee may transfer the firearm after (i)
"the system provides the licensee with a unique identification
number" or (ii) "3 business days . . . 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" the law. The licensee must verify the identity of the
transferee by examining a valid identification document.
9. ? 922(t)(2) provides:
If the receipt of a firearm would not violate section 922(g) or (n)
or state law, the system shall--
(A) assign a unique identification number to the transfer;
(B) provide the licensee with the number; and
(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.
10. The above verbs "assign," "provide," and "destroy" are used in
the present tense. The Act contains no language authorizing a delay
in any of these three functions.
11. ? 103(h) of the Act provides that "the Attorney General shall
prescribe regulations to ensure the privacy and security of the
information of the system established under this section." This
"privacy and security" of the system's information with respect to
firearms purchasers and transactions is ensured in part through the
requirement that the records be destroyed immediately, making such
information unavailable to the Attorney General, the Department of
Justice, the Federal Bureau of Investigation, and any other
governmental entities.
12. These same goals are further mandated by ? 103(i) of the Act,
which provides:
PROHIBITION RELATING TO ESTABLISHMENT OF REGISTRATION SYSTEMS WITH
RESPECT TO FIREARMS. -- No department, agency, officer, or employee
of the United States 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 the United States or
any State or political subdivision thereof; or
(2) use the system established under this section to establish any
system for the registration of firearms, firearm owners, or firearm
transactions, 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.
13. ? 621, Title VI of Pub.L. 105-277, signed by the President into
law on October 22, 1998,
provides:
Brady Handgun National Instant Check System (NICS)
None of the funds appropriated pursuant to this Act or any other
provision of law may be used for . . . (2) any system to implement 18
U.S.C. 922(t) 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 Regulations
14. By authority of defendant Janet Reno, Attorney General, the U.S.
Department of Justice promulgated AG Order No. 2186-98 -- Final rule:
National Instant Criminal Background Check System Regulation, 63 FR
58303 (Oct. 30, 1998), creating 28 CFR Part 25, with an effective
date of November 30, 1998.
15. 28 CFR ? 25.2 includes the following pertinent definitions:
FFL (federal firearms licensee) means a person licensed by the ATF as
a manufacturer, dealer, or importer of firearms.
NICS means the National Instant Criminal Background Check System,
which an FFL must, with limited exceptions, contact for information
on whether receipt of a firearm by a person who is not licensed under
18 U.S.C. 923 would violate Federal or state law.
NICS Index means the database, to be managed by the FBI, containing
information provided by Federal and state agencies about persons
prohibited under Federal law from receiving or possessing a firearm.
. . .
NICS Operations Center means the unit of the FBI that receives
telephone or electronic inquiries from FFLs to perform background
checks, makes a determination based upon available information as to
whether the receipt or transfer of a firearm would be in violation of
Federal or state law, researches criminal history records, tracks and
finalizes appeals, and conducts audits of system use.
NTN (NICS Transaction Number) means the unique number that will be
assigned to each valid background check inquiry received by the NICS.
Its primary purpose will be to provide a means of associating
inquiries to the NICS with the responses provided by the NICS to the
FFLs.
16. Before transferring a firearm, a licensee (FFL) must contact NICS
and provide information
about the proposed transferee. ? 25.7 provides:
(a) The following search descriptors will be required in all queries
of the system for purposes of a background check:
(1) Name;
(2) Sex;
(3) Race;
(4) Complete date of birth; and
(5) State of residence.
(b) A unique numeric identifier may also be provided to search for
additional records based on exact matches by the numeric identifier.
Examples of unique numeric identifiers for purposes of this system
are: Social Security number (to comply with Privacy Act
requirements, a Social Security number will not be required by the
NICS to perform any background check) and miscellaneous identifying
numbers (e.g., military number or number assigned by Federal, state,
or local authorities to an individual's record). Additional
identifiers that may be requested by the system after an initial
query include height, weight, eye and hair color, and place of birth.
At the option of the querying agency, these additional identifiers
may also be included in the initial query of the system.
17. Procedures to conduct NICS are set forth in ? 25.6(c)(1), which
provides in part:
The FBI NICS Operations Center, upon receiving an FFL telephone or
electronic dial-up request for a background check, will:
(i) Verify the FFL Number and code word;
(ii) Assign a NICS Transaction Number (NTN) to a valid inquiry and
provide the NTN to the FFL;
(iii) Search the relevant databases . . . for any matching records;
and
(iv) Provide the following NICS responses based upon the consolidated
NICS search results to the FFL that requested the background check:
(A) "Proceed" response, if no disqualifying information was found . .
. .
18. As provided in ? 25.2, "Proceed means a NICS response indicating
that the information available to the system at the time of the
response did not demonstrate that transfer of the firearm would
violate federal or state law." Other responses are "delayed," meaning
that further research is necessary, and "denied," meaning that
receipt of the firearm would violate the law.
19. 28 C.F.R. ? 25.2 includes the following definition: "Audit log
means a chronological record of system (computer) activities that
enables the reconstruction and examination of the sequence of events
and/or changes in an event." 28 C.F.R. ? 25.9(b) provides in part:
The FBI will maintain an automated NICS Audit Log of all incoming and
outgoing transactions that pass through the system.
(1) The Audit Log will record the following information: type of
transaction (inquiry or response), line number, time, date of
inquiry, header, message key, ORI, and inquiry/response data
(including the name and other identifying information about the
prospective transferee and the NTN). In cases of allowed transfers,
all information in the Audit Log related to the person or the
transfer, other than the NTN assigned to the transfer and the date
the number was assigned, will be destroyed after not more than six
months after the transfer is allowed. . . . (emphasis added).
(2) The Audit Log will be used to analyze system performance, assist
users in resolving operational problems, support the appeals process,
or support audits of the use of the system. . . . Information in the
Audit Log pertaining to allowed transfers may only be used by the FBI
for the purpose of conducting audits of the use and performance of
the NICS. . . .
20. FFLs contact NICS directly by communicating with the Federal
Bureau of Investigation (FBI) or, in instances where the State so
agrees, by communicating with a state law enforcement agency.
Concerning records generated by FBI operation of NICS, ? 25.9(c)
provides:
The following records in the FBI-operated terminals of the NICS will
be subject to the Brady Act's requirements for destruction:
(1) All inquiry and response messages (regardless of media) relating
to a background check that results in an allowed transfer; and
(2) All information (regardless of media) contained in the NICS Audit
Log relating to a background check that results in an allowed
transfer.
21. 28 CFR ? 25.2 includes the following definition:
POC (Point of Contact) means a state or local law enforcement agency
serving as an intermediary between an FFL and the federal databases
checked by the NICS. A POC will receive NICS background check
requests from FFLs, check state or local record systems, perform NICS
inquiries, determine whether matching records provide information
demonstrating that an individual is disqualified from possessing a
firearm under Federal or state law, and respond to FFLs with the
results of a NICS background check. A POC will be an agency with
express or implied authority to perform POC duties pursuant to state
statute, regulation, or executive order.
22. Concerning records generated by POC operation of NICS, ? 25.9(d)
states:
The following records of state and local law enforcement units
serving as POCs will be subject to the Brady Act's requirements for
destruction:
(1) All inquiry and response messages (regardless of media) relating
to the initiation and result of a check of the NICS that allows a
transfer that are not part of a record system created and maintained
pursuant to independent state law regarding firearms transactions;
and
(2) All other records relating to the person or the transfer created
as a result of a NICS check that are not part of a record system
created and maintained pursuant to independent state law regarding
firearms transactions.
Facts
23. On November 30, 1998, plaintiff Jane Doe I provided her name and
other identifying information to a federally-licensed firearms dealer
in the State of New Jersey. The dealer proceeded to contact the NICS,
which searched the relevant data bases and provided the dealer with a
"proceed" response. The dealer then transferred the firearm to said
plaintiff.
24. On November 30, 1998, plaintiff Jane Doe II provided her name and
other identifying information to a federally-licensed firearms dealer
in the State of Virginia. The dealer proceeded to contact the NICS,
which searched the relevant data bases and provided the dealer with a
"proceed" response. The dealer then transferred the firearm to said
plaintiff.
25. On November 30, 1998, plaintiff John Doe I provided his name and
other identifying information to a federally-licensed firearms dealer
in the State of Kentucky. The dealer proceeded to contact the NICS,
which searched the relevant data bases and provided the dealer with a
"proceed" response. The dealer then transferred the firearm to said
plaintiff.
27. On November 30, 1998, plaintiff John Doe III provided his name
and other identifying information to a federally-licensed firearms
dealer in the State of Ohio. The dealer proceeded to contact the
NICS, which searched the relevant data bases and provided the dealer
with a "proceed" response. The dealer then transferred the firearm to
said plaintiff.
28. On November 30, 1998, plaintiff John Doe IV provided his name and
other identifying information to a federally-licensed firearms dealer
in the State of Arizona. The dealer proceeded to contact the NICS,
which searched the relevant data bases and provided the dealer with a
"proceed" response. The dealer then transferred the firearm to said
plaintiff.
29. On November 30, 1998, numerous members of the plaintiff NRA in
every State of the United States provided their names and other
identifying information to federally-licensed firearms dealers. The
dealers proceeded to contact the NICS, which searched the relevant
data bases and provided the dealers with "proceed" responses. The
dealers then transferred the firearm to said NRA members. Beginning
on such date and continuing into the indefinite future, millions of
NRA members from every State of the United States will continue to
provide their names and other identifying information to federally-
licensed firearms dealers, who will contact the NICS. NICS will
search the relevant data bases and provide the dealers with "proceed"
responses, and the dealers will transfer firearms to said NRA members.
30. On November 30, 1998, members of the plaintiff LEAA in several
States of the United States provided their names and other
identifying information to federally-licensed firearms dealers, which
contacted the NICS. NICS searched the relevant data bases and
provided the dealers with "proceed" responses. The dealers then
transferred the firearms to said LEAA
members. Beginning on such date and continuing into the indefinite
future, numerous LEAA members throughout the United States will
continue to provide their names and other identifying information to
federally-licensed firearms dealers, who will contact the NICS. NICS
will search the relevant data bases and provide the dealers with
"proceed" responses, and the dealers will transfer firearms to said
LEAA members.
31. Plaintiffs Jane Doe I, Jane Doe II, John Doe IV, and numerous
members of plaintiffs NRA and LEAA reside in States in which the NICS
is operated by POCs. Plaintiffs John Doe I, John Doe III, and
numerous members of plaintiffs NRA and LEAA reside in States in which
the NICS is operated by the FBI.
32. Pursuant to 28 CFR ? 25.9(b), the names and other identifying
information provided in each of the above instances will be retained
and not destroyed by defendant Reno and her officers, agents, and
employees for as long as six months.
COUNT ONE
33. Paragraphs 1 through 32 are realleged and incorporated herein by
reference.
34. 18 U.S.C. ? 922(t)(2) provides that, if receipt of a firearm
would not violate the law, NICS shall assign a unique identification
number to the transfer, 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." ? 621,
Title VI of Pub.L. 105-277 prohibits funds from being used for NICS
to the extent that it "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." These provisions contain no "grace" period authorizing
defendant to disregard the destruction requirement, which is
applicable to defendant immediately once the unique identification
number is provided to the licensee.
35. ? 103(h) of the Act imposed a duty on the Attorney General to
"prescribe regulations to ensure the privacy and security of the
information of the system," and instead she prescribed regulations
authorizing the violation of privacy and security of the information
of the system for a six-month period.
36. By failing to comply with 18 U.S.C. ? 922(t)(2) until the
expiration of a time period arbitrarily set by her as long as six
months, defendant Reno has violated, and will continue to violate,
the privacy rights provided by 18 U.S.C. ? 922(t)(2) and ? 103(h) of
the Act of the individual plaintiffs and for the members of
plaintiffs NRA and LEAA.
COUNT TWO
37. Paragraphs 1 through 36 are realleged and incorporated herein by
reference.
38. ? 103(i) of the Act provides that "no department, agency,
officer, or employee of the United States 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 the United States . . . ." It also
prohibits use of the system "to establish any system for the
registration of firearms, firearm owners, or firearm transactions . .
. ." Defendant Reno is not authorized to declare that she is not
subject to these provisions or that such provisions are inoperative
until such time as she chooses.
39. 28 CFR ? 25.9(b) purports to authorize records and portions
thereof generated by NICS to be "recorded at or transferred to a
facility" of the United States for a period of up to six months. It
also establishes a computerized "system for the registration of
firearms, firearm owners, or firearm transactions" for the same
period.
40. By failing to comply with ? 103(i) of the Act, defendant Reno has
violated, and will continue to violate, the privacy rights of the
individual plaintiffs and of the members of plaintiffs NRA and LEAA.
COUNT THREE
41. Paragraphs 1 through 40 are realleged and incorporated herein by
reference.
42. 28 CFR ? 25.9(d) provides that the records of state and local law
enforcement units serving as POCs will not be subject to the Act's
requirements for destruction if such records are "created and
maintained pursuant to independent state law regarding firearms
transactions." Such records include "all inquiry and response
messages (regardless of media) relating to the initiation and result
of a check of the NICS" and "all other records relating to the person
or the transfer created as a result of a NICS check."
43. The Act does not authorize the delegation of the duties of the
NICS to states and localities or the intervention of "independent
state law regarding firearms transactions" in such manner as would
nullify the destruction requirement of 18 U.S.C. ? 922(t)(2) or the
prohibitions of ? 103(i) of the Act against (1) requiring that "any
record or portion thereof" generated by the system "be recorded at or
transferred to a facility owned, managed, or controlled by . . . any
State or political subdivision thereof" or (2) using the system "to
establish any system for the registration of firearms, firearm
owners, or firearm transactions." (Emphasis added.)
44. By failing to comply with 18 U.S.C. ? 922(t)(2) and ? 103(i) of
the Act, defendant Reno has violated, and will continue to violate,
the privacy rights of plaintiffs Jane Doe I, Jane Doe II, John Doe
IV, and of the members of plaintiffs NRA and LEAA who reside in
States in which the NICS is operated by POCs.
WHEREFORE, plaintiffs pray that the Court:
1. Enter a declaratory judgment that 28 CFR ? 25.9(b) and any other
provisions purporting to delay the execution of the duty to destroy
records are contrary to 18 U.S.C. ? 922(t)(2), to ? 103(h) and ? 103
(i) of the Act, and to ? 621, Title VI of Pub.L. 105-277, and are
thus invalid.
2. Enter a declaratory judgment that 28 CFR ? 25.9(d) is invalid to
the extent it purports to exempt state and local law enforcement
units serving as POCs from destroying records generated by the NICS
system on lawful transferees to the extent the records are "created
and maintained pursuant to independent state law regarding firearms
transactions."
3. Issue preliminary and permanent injunctions and a writ of mandamus
requiring, or otherwise compelling, defendant Reno and her officers,
agents and employees, pursuant to 18 U.S.C. ? 922(t)(2), once the
legality of the transfer is determined and the unique identification
number is provided to the licensee, immediately to "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."
4. Grant such other and further relief as may be proper.
5. Award plaintiff attorney's fees and costs.
Respectfully Submitted,
National Rifle Association of America, Inc., et al., Plaintiffs
By Counsel
Stephen P. Halbrook
D.C. Bar No. 379799
Richard E. Gardiner
D.C. Bar No. 386915
10560 Main St., Suite 404
Fairfax, VA 22030
(703) 352-7276
Attorneys for Plaintiffs
***********************************************
* mi-rkba e-mail discussion list (FREE) *
* *
* FREE SPEECH AND FIREARMS... *
* THE POWER TOOLS OF FREEDOM *
* *
* listowner: Arlynn Afton *
* (616) 243-4790 ccw@triton.net *
* *
* To subscribe: majordomo@webnexus.com *
* Message: subscribe mi-rkba *
* *
* To unsubscribe: majordomo@webnexus.com *
* Message: unsubscribe mi-rkba *
* *
* To post a message to everyone on the list, *
* send to: mi-rkba@webnexus.com *
* *
* Civility rules. *
* Free speech, not free libel. *
* *
* Anyone violating the rules of this list will*
* receive a private warning. A second offense*
* will result in a permanent un-subscribe from*
* the list, which will be posted to the list. *
* Listowner is not responsible for the content*
* of other's postings to this list. *
***********************************************
# # #
[END]
-- Robert Mangus (rmangus@mail.netquest.com), December 05, 1998.