On May 3, 2000 Pennsylvania State Representative Daryle Metcalfe wrote a letter, signed by 19 other law makers, to the Pennsylvania State Police inquiring whether the State Police is maintaining a gun registration system in violation of Pennsylvania and Federal law.
On June 14, 2000 a Pittsburgh Post-Gazette Staff Writer, Jonathan D. Silver, wrote an article "State Police defend handgun purchaser database." In that article Silver acknowledged that he had a letter from the Pennsylvania State Police that had intended to go to Rep. Metcalfe. Silver wrote; "In a written response to Metcalfe meant to be hand-delivered yesterday, state police defended their practice and stated their intention to continue it."
After reading the Post-Gazette story on this issue, Michael Slavonic, Chairman of the Allegheny County Sportsmen's League Legislative Committee phoned Rep. Metcalfe to request of copy of the letter. However Metcalfe told him that he has yet to get a copy of the letter. Later in the week a copy of the state police letter was faxed to the ACSL. Interestingly the letter was dated June 14, 2000, the same day of the Post-Gazette article.
The gun policy of the Pittsburgh Post-Gazette is very clear. This newspaper has editorialized in support of a total ban on handguns. It also has editorialize in support a President Clinton's licensing and registration all handgun owners. In sending the letter first to the Post-Gazette the State Police knew they had an ally who would support to their gun database. Legal or illegal the Post Gazette wants the state police to continue keeping these records. Without registration the Post-Gazette's goal of total handgun prohibition can not be realized. The Post-Gazette and the State Police needed to turn the tables on Metcalfe in order to oppose any legislative reprisals
In a follow-up article on June 15, 2000 the Post-Gazette questioned the Governor's office whether they support the State Police's position on the gun database. Ridge spokesman Tim Reeves said, "If an agency under the governor's jurisdiction writes a letter, that it's from the Ridge administration". Could the administration have told the State Police to send a copy of the letter to the Post-Gazette?
Although Governor Ridge's office at first had no comment, the Post Gazette pressured the administration for a response. In a June 16, 2000 follow up the Post-Gazette quoted Tim Reeves, a Ridge spokesman, who challenged Rep. Metcalfe's allegation that the database which the Pennsylvania state police are keeping is not registration. Reeves said that Metcalfe's "argument that Pennsylvania State Police are illegally keeping a database of handgun buyers is flawed because he is misinterpreting the law".
The fact of the matter is, Metcalfe is correct. In 1995 the Pennsylvania General Assembly, lead by NRA staffers, and with the support of Handgun Control Inc., secured the passage of Act 17. The Act is a total rewrite of the state gun laws and created the Pennsylvania Instant Check System (PICS). Under section 6111, Sale or Transfer of Firearms, a dealer is required to "...obtain a completed application/record of sale from the potential buyer or transferee to be filled out in triplicate, the original copy to be sent to the Pennsylvania State Police, postmarked via first class mail, within 14 days of the sale..." The legislation was clear as to what information was to be included in the form. "The application/record of sale shall include the name, address, birth date, gender, race, physical description and Social Security number of the purchaser or transferee, the date of the application and the caliber, length of barrel, make, model and manufacturer’s number of the firearm to be purchased or transferred." Three years later in 1997 gun owners from the western part of the state lead by the Allegheny County Sportsmen's League and the Pennsylvania Sportsmen's Association worked with legislative leaders to add language that would mandate that the state police destroy the application/record of sale form.
Under our state constitution the administrative branch of government, of which includes the state police, have no authority other than that which is delegated to them through law by the General Assembly. There was never any intent by the legislature to provide for the registration of gun purchasers under Act 17. In fact, the legislature expressly prohibited it. Section 6111.4. Registration of Firearms. clearly states:
"Notwithstanding any section of this chapter to the contrary, nothing in this chapter shall be construed to allow any government or law enforcement agency or any agent thereof to create, maintain or operate any registry of firearm ownership within this Commonwealth. For the purposes of this section only, the term firearm shall include any weapon that is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon. (Added by L 1995. Spec. Sess 1, Act 17(6,), eff 10/11/95.)"
The legislature may have permitted the state police to collect the record of sale forms, which the NRA staffers should have guarded against, but that can not be translated into the folding of that information into an electronic database.
In 1998, when the NICS system came on line Pennsylvania became a Point of Contract State (POC). In doing so they came under the umbrella of federal law and the FBI's Brady regulations that were approved on October 30, 1998.
According to the regulation, states who become POC's will be subject to the record destruction requirements. That is "that a POC records of inquiry and response messages relating to the initiation and result of a NICS check that allows a transfer must be destroyed."
According to section 25.9(d) "The following records of state and local law enforcement units serving as POCs will be subject to the Brady Acts' requirements for destruction:
(1) all inquiry and response messages (regardless of media) relating to the initiation and result of a check on the NICS that allows a transfer that are not part of a records system created and maintained pursuant to independent state law regarding firearms transaction; 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 records system created and maintained pursuant to independent state law regarding firearms transactions."
As predicted, the Post-Gazette followed their series of articles with an editorial in support of the state police. In "Hold Your Fire", Published on Sunday June 18, 2000 the Post-Gazette wrote, Well, if this is a gun registry, it's a pretty shabby one. For one thing, it doesn't include guns bought outside the state it also doesn't include guns given by one relative to another." Both are mute points. It doesn't matter what records are included the law simply states that the records must be destroyed.
As always the Post-Gazette refers to only part of the law. Since 1995 the legislature added a provision in state law that non-licensees must make private sales through a dealer. This is closing the gun show loop-hole. Under subsection (c) Duty of other persons."Any person who is not a licensed importer, manufacturer or dealer and who desires to sell or transfer a firearm to another unlicensed person shall do so only upon the place of business of a licensed importer, manufacturer, dealer or county sheriff’s office, the latter of whom shall follow the procedure set forth in this section as if he were the seller of the firearm. The provisions of this section shall not apply to transfers between spouses or to transfers between a parent and child or to transfers between grandparent and grandchild."
The state police have revealed that they have been keeping records on handgun owners for over 32 years. Because of the recently added section C above, the state police records were only of first time purchases. With the addition of the above section those records can now be updated. Prior to 1995 private sales were totally legal. Anyone who had sold their handguns via a private transaction may be in technical violation of the law if they can not prove that the sale took place before 1995.
Another clear definition of a registry is whether it can be updated, and surely this one can be.
In an attempt to expose this conspiracy between the Post-Gazette and the State Police the ACSL responded to an editorial ' Hold you fire" with the following a letter to the editor. A careful reading of the original letter and that which was published under the titled "These Records are Illegal"reveals that the Post-Gazette is sensitive to the charges level at them, that they were complicit in an attempt to stop Mr. Metcalfe from ending the State Police database.
While the Post Gazette supported the State Police's record keeping the more conservative Tribune Review editorialized against the record keeping in "Obey the Law". The newspaper said that "This matter should not be dismissed as a debate over semantics or a difference of opinion. The law must be obeyed, and the state Legislature should make that clear to the Ridge administration." This is exactly what Rep. Metcalfe is doing, and he should be supported by every gun owner in the state.
Not satisfied with the State Police's response to his first letter Rep. Metcalfe sent another letter on
June 27, 2000 asking them to point out to him what provision in the law give the state police to authority to maintain their database. They never answered it.
Rep. Metcalfe still remained persistent and again on September 12, 2000 sent another letter, this time to the Commissioner of the Pennsylvania State Police, Col. Paul Evanko. Rep. Metcalfe asked Col. Evanko to point out statutory authority that allows the PSP to maintain the application/record of sale database. Finally, after several angry phone calls to the State Police the Commissioner finally sent a letter dated October 6, 2000. In that letter Col. Evanko claimed that under the authority of the Administrative Code of 1929 he had the authority to retain these records. Evanko never even address the prohibitory language in Act 5 of 1997 which prohibited him from doing the same.
Unable to resolve the issue in a reasonable manner, and because both Col. Evanko and Gov. Ridge will not recognize existing state law, the Allegheny County Sportsmen's League and the Lehigh Valley Firearms Coalition, and four named individuals, filed suit in Commonwealth Court on December 14, 2000. The ACSL's suit names both Governor Ridge and Col. Evanko in their official capacities as defendants.
On January 3, 2001 the ACSL took the necessary next legal step to close down Governor Ridge's gun database by filing a Preliminary Injunction in Commonwealth Court. This move was necessary to prevent the Governor from having the lawsuit thrown out of court.
The Court set January 18, 2001 as the date for the hearing on our motion for Preliminary Injunction in Harrisburg before Judge James Kelly. After four hours of testimony the hearing ended with the Judge promising a decision soon. It was difficult at that time to determine if the Judge would rule in our favor but it was clear that, what ever his decision on the merits of our motion, the case would go forward.
On January 23, 2001 Judge Kelley handed down his ruling. Our motion for Preliminary Injunction would be denied. However, in his ruling he agreed that at least the language in the statute was open to "differing interpretations". He based his denial, in part, to the fact that "once this database is destroyed, it is incapable of replication. Such a result cannot occur before the ultimate resolution of this case."
As we entered the Main Capitol Building we noticed an inscription on the wall of the steps leading into the building. The inscription read, "Those who would give up essential liberty to purchase a little temporary safety deserves neither liberty nor safety", Benjamin Franklin. We felt that this was an appropriate inscription to be placed at the entrance to our legislature. In all wars every General knows that you will loose some battles and win some battles, but your ultimate goal is to win the war.
While we are disappointed, I telephoned our attorney and told him that we have just begun to fight, and to take the necessary steps to prepare for the next battle. We are in this for the long haul.
On February 9, 2001 the ACSL received notice from Commonwealth Court advising both parties that "argument on the preliminary objections filed in the above matter will be heard during the week of May 7, 2001 in Pittsburgh." A specific date for argument will be set at a later time.
In March our Attorney was informed that Commonwealth Court will hear the arguments on preliminary objections "en banc". This means that the court will sit from seven to nine judges who will decide whether the case against the Governor and State Police will go to trail.
Legal experts who have experience arguing cases before the appellate courts all agree that they have never experienced arguing a preliminary objection before the full court. The usual practice is when a case is appealed from the lower common pleas court it is commonly heard by a three judge panel. Only those cases where the subject of the hearing has to do with cases like freedom of speech and freedom of religion does the court sit all nine judges. Cases against the Commonwealth always go directly to Commonwealth Court, appeals go up to the Supreme Court. Preliminary Injunctions and preliminary objects are usually heard by one judge.
What this means, no one knows for sure. However, some legal experts suggest that maybe the court believes that we have a strong argument and that one judge does not want to take the responsibility for having this case go to trail, and they want to spread the ruling across the full court.
We must await the hearing to know the answer.
Finally, after several weeks delay, the state has delivered their brief in Response to our Complaint that they are maintaining an illegal database. There is nothing new in the PSP's response, the government is still relaying on the fact that Acts 17 & 66, originally supported by the NRA and other statewide sportsmen groups, allows the PSP to continue maintaining their database on law-abiding gun owners. This intent was supported in a speech given on the floor by Rep. Robert Godshall, NRA's point man on the bill, as well as, the bill floor leader in the House.
The PSP is betting their whole defense on Godshall's speech. Take a look at the complaint and read what Rep. Godshall had to say about the government keeping a list names and address of law-abiding citizens of this state. Do we still want Rep. Godshall leading our fight for our firearms freedom in Harrisburg?
The PSP even took to time to underline key sentences in Godshall's speech to prove their point. However, we still insist that the changes in the Uniform Firearms Act under Act 5 of 1997 changed the direction of the intent of the legislature, and does direct the PSP to destroy these records. We also believe we can prove that this so-called database is a registry.
There is other evidence that we will bring before the court to justify our position, which we believe will convince the court that we are justified in our complaint.
The hearing before Commonwealth Court to consider arguments on motion for Preliminary Objection filed by Governor Tom Ridge and the Pennsylvania State Police took place on Wednesday May 9, 2001 at 9:30AM. Because the court decided to sit "en banc" (meaning that the full court would sit --7 Judges) the hearing had to be held in the Pennsylvania Supreme Court court room on the eight floor of the Pittsburgh City County building.
Sitting on the Court were Judges, Kelley, Pellegrini, Colins, Doyle, Smith, Friedman, and Leadbetter.
Both sides were only given 15 minutes to argue their case, and the court held strictly to that time limit.
The Government was give the opportunity to present their arguments first. The states' attorney, Joanna Reynolds, Esq. represented both Gov. Ridge and the State Police.
The states' first argument was that Gov. Tom Ridge should be removed as a defendant in this case. The state sited that only the Commissioner of the state police is the proper party to sue because the responsibility to enforce the state's gun laws is vested in the Commissioner, and that the Governor is not responsible.
The government continued to rely on the statements by Rep. Robert W. Godshall. Rep. Godshall reported on the floor of the House of Representatives during the debates on the Conference Committee Report on SB 282, that this Act (Act 66) would not prevent the state police to continue to collect information on the record of sales of all handgun purchasers. Godshall's statements were intended to reflect the positions of the members of the conference committee which include now Attorney General Mike Fisher, former Senator David Heckler, former State Representative William Lloyd and Representative Merle Phillips.
According to the letter from State Police Commissioner Paul Evanko to Rep. Daryl Metcalfe dated September 12, 2000, Commissioner Evanko wrote that: "The PSP participated in the development of Act 17 and Act 66. When these statutes were being formulated, it was agreed that the maintenance of the handgun records of sale would not be impacted."
Also taking part in those negotiations was, at that time, NRA -ILA state liaison Alan Krug. The result of those negotiations also had the approval of all of the statewide sportsmen organizations.
Judge Leadbetter interrupted Reynolds almost immediately on the 'remove" Ridge point and expressed skepticism over the need to take this step at this time.
Judge Pelegrini questioned the PSP 'authority' to collect records since he could not find and authority in the law permitted them to maintain the records.
In our arguments we continued to advance the theme that it is Act 5 of 1997, and the changes to section 6111 (b) offer strong evidence that the intent of the legislature was to include the state police in the prohibition on the creation of a system of gun registration.
Although the Judges ask numerous questions, our position was that the court must allow this case to proceed to the next stage to allow us to bring expert witness before the court to prove that the so-called "database" the state police were maintaining was in reality a registration system prohibited under Act 5, and that any registration system was useless in preventing crime. In addition we would show the court that there is already a system in place that would allow guns used in crime to be traced to original purchasers.
See the complete report on the hearing by selecting "Report on Hearing on Preliminary Objections."
There was clearly a news black-out on this hearing, in spite of an effort by Tribune-Review outdoors writer Karl Power to alert gun owners of it taking place..
In an attempt to generate media interest Representative Daryl Metcalfe sent a press release on April 30, 2000 on behalf on Representatives Sam Rohrer, Teresa Forcier, Bob Bastian and Tom Yewcic. No one in the media picked up on the release. It is clear that the media does not want anyone to learn of this law suit, and the public's right to know is being over ruled by those who would bring additional gun laws upon all law abiding citizens. So much for first amendment rights
For the ACSL's brief in Opposition to Respondents' Preliminary Objection see ACSL Brief.
It is difficult to know when the court will decide, and if they will allow this case to go to the next step. We are encouraged that our attorney prepared a well thought-out brief. If the Judges rely on our brief, and the language of the law we should be successful. However, no one can predict when we will have a decision, nor what that decision will be.
In February of 2001 the NRA refiled it appeal to the U.S. Supreme Court in the name the new U.S. Attorney General John Ashcroft in the place of Janet Reno. NRA remined us; "Don't be alarmed by the name of this lawsuit, as this litigation is just the latest incarnation of NRA v. Reno ”NRA's suit against the government's illegal retention of records of lawful gun purchasers who underwent a NICS check. As the new Attorney General, John Ashcroft's name simply replaced that of his predecessor".
On June 25, 2001 the United State Supreme Court decided not to hear NRA's appeal. As a result the U.S. Court of Appeals decision stands, and NRA looses its case against the attorney general's decision to retain the records in the audit log as long as decided by the Justice Department.
Since the NRA has been out front in support of John Ashcroft as U.S. Attorney General, and Handgun Control, Inc (now the Brady Campaign) and the Violence Policy Center have been outspoken critics of John Ashcorft neither organization have acurately reported the circumstances surrounding the dispostion of this case. Much of what has occurred could have direct effect on the ACSL suit against the State Police database.
In its decision to uphold the Justice Department's regulations to allow the retention of the information in the audit log, the U.S. Court of Appeals cites the difference in the version of the Brady Law (H.B. 1025) as passed by the House, and the version of the law amended in the Senate when the bill finally passed in November of 1993. According to the court when the Senate amended the bill from the House the court wrote; "As passed by the House, the bill stated that the system shall "immediately destroy all records" of the allowed transactions. The Conference Committee, however adopted the Senate's version of the destruction requirement, which did not contain "immediately. It was this version that both houses approved and the President signed."
NRA contended that the Conference Report did not list the absence of "immediately" among the substantive difference between the House and Senate bills. It seems strange to us that NRA only relied on the Conference Committee Report to decide whether to support the Senate compromise as they did in 1993. The court disagreed, and said; But this does not change the critical fact: The word "immediately," which had appeared in the House bill, is missing from the final Act.
The court remained steadfast in deciding that because of the removal of the work "immediately" and other provision of the bill, the attorney general could set as much time as neccessary to retain the information in the audit log. However, the court did address the fact that the records must be destory. They also agreed, that any state that was a Point of Contact (POC) state that did not have legislation requiring the retention of records would have to destory those records. The court said; "If the regulation permitted retention of data not gathered pursuant to state law, we would agree with the NRA that it would violate the Brady Act's destruction requirement".
Bottom line, the state police database must be destroyed.
Since both organization have been outspoken in their support and oppostion to John Ashcroft, neither have mentioned John Ashcroft's brief before the U.S. Supreme Court. In his brief, argued by Barbara d. Underwood, acting Solicitor Genral Counsel of Record, the Attonery General's brief was in opposition to NRA's position, and in fact, argued in support of the U.S. Appeals Court decision.
The Attorney General argued that the Justice Department should be allowed to retain the information in the audit log as long as necessary to insure the integredy of the NICS. Thus the Attorney General arguing Janet Reno's case, wanted authority from the court to set the time for retention of the records. The brief also note that amendments to the NICS regulations were to go into effect on July 3, 2001 setting that time period to 90 days. These new regulations were to originally go into effect on March 5, 2001. However, on May 4 , 2001 the AG filed a temporary postponement. Thus changing the effective date to July 3, 2001. These new regulation would set the retention period to 90 days.
On June 28, 2001, without mentioning Ashcroft's brief, the NRA reported that the Attorney General was going to "consider shortening the time that records of lawful firearms purchasers are kept in government files". Considering something, and actually doing it are two different thing. However, recent news reports have reported that Ashcroft was looking to reduce the retention period to one day.
How do these events effect the ACSL's law suit? The upside is since Pennsylvania does not have legislation permitting retention of records longer than 72 hours, all records in the state police database as of July 7, 2001 must be destroyed.
The downside could be that another attorney general in a Clinton type administration could revisit the regulations and have the same authority as Ashcroft to extent the retention period. However, it would be difficult to go beyond the 90 days perscribe by Janet Reno.
Bottom line, if Commonwealth Court will look at the decision of the U.S. Supreme Court not to hear NRA's appeal, and agree that the federal government has jurisdiction in the matter since Pennsylvania is a POC, we win, and the state police and Governor Tom Ridge looses. Only time will tell.