Feds Direct State Police to Destroy Database
Over the last two months gun owners experienced a number of events that will have a profound effect on gun ownership in the future. Much of it has received media attention, but other events got little notice. The new Attorney General, John Ashcroft, made the news that he is going to rewrite the federal government's policy on the Second Amendment, and declare that the Second Amendment protects the right of individuals to keep and bear arms. This follows the U.S. Supreme Courts decision not to hear the NRA's appeal of the U.S. Court of Appeals for the District of Columbia decision.
That action by the U.S. Supreme Court allows the lower court's decision to stand, as a result the FBI may retain the information obtained on the purchaser of a firearm long enough to conduct an audit of the instant check system. Attorney General Ashcroft, shortly after that decision announced that he would amend the Brady regulations to change that time period from the current 90 days, set by Janet Reno, to 1 working day. The proposed rule change was published in the Federal Register on July 6, 2001.
The decision by the U.S. Court of Appeals and the decision by Attorney General Ashcroft will have a positive effect on the Allegheny County Sportsmen's League Law Suit against Gov. Tom Ridge and the Commissioner of the State Police Paul Evanko. These changes will have an effect on the operations of the Pennsylvania Instant Check System, because Pennsylvania is a Point of Contact (POC) state. As a POC the state of Pennsylvania must be in compliance with the Brady regulations. These regulations require that, any POC state that dose not have enabling state legislation that authorized the state to keep the records on the background check, then those records must be destroyed. Regardless of the state police's legal position before Commonwealth Court, there is no language in the Pennsylvania Uniform Firearms Act that authorized the State Police to maintain the Records of Sale Database.
This fact was clearly stated to the Pennsylvania State Police in a June 15, 2001 letter from the Federal Bureau of Investigation's Acting Chief of Programs Support Section of the Criminal Justice Information Services Division, Mr. Ralph Calvin Sieg. According to Mr. Sieg's letter, "the FBI's Criminal Justice Information Services Division Audit Unit met with the Pennsylvania State Police to ascertain Pennsylvania's level of compliance with federal rules and regulations relating to the National Instant Criminal Background Check System (NICS) to determine if Pennsylvania was following the Point of Contact State guideline for firearms purchasers." The FBI auditors took notice of the Record of Sales Database and notified the State Police that, "18 U.S. Code Section 922 prohibits retaining such data in excess of 180 days if the firearms transfer is allowed. Therefore, the existence of the Record of Sale Database is in violation of federal legislation and the Pennsylvania Crimes Code. This practice must cease immediate."
A copy of this letter was sent anonymously to our Attorney, and we forwarded the letter to Rep. Daryle MetCalfe. Mr. MetCalfe was, as were we, delighted that the letter could be very damaging to the Government's case in our law suit now before Commonwealth Court. Mr. MetCalfe decided that the best strategy to handle this newly acquire information, was to attempt to bring to the attention of both the Governor and the State Police that we have a copy of the letter, and try to negotiate a settlement of the law suit. However, both attempts met with contempt from the state police and the Governor's office, and neither would meet with Mr. MetCalfe.
This refusal by administrative officials, and the people we hire to administer the laws of the Commonwealth, to meet with an elected member of the House of Representatives is an outrage. In response, Mr. Metcalf issued a news release calling for and End to Illegal State Gun Registry. In addition he wrote of letter, dated July 24, 2001, to State Police Commissioner Paul Evanko in response to Evanko's refusal to meet with him.
It is clear that the Record of Sales Database is illegal, under both state and federal law. We did not need to have the FBI tell us that, but certainly their interpretation helps. According to the FBI letter, the State Police had 30 days to reply to their demands, and they have done so. Thirty five days later, on July 20, 2001, the State Police frantically responded to the FBI. They attempt to justify their position on the Records of Sale Database by claiming that "The State Police have been statutorily authorized to maintain records of handguns sales for the past 75 years, with the exception of those transfer exempt under state law." However, the section of the law cited by the state police was the law in 1995, however, that section was changed in 1997 mandating the destruction of the database.
In oral arguments before Commonwealth Court on May 9, 2001 Judge Pelegrini demanded that the counsel for the State Police and the Governor's office, to site him the provision in the law that authorized them to maintain the Record of Sale Database. Counsel for the Governor and the State Police could not site any particular statute. They simply responded that the law inferred that they had such authority, Judge Pelegrini observed shaking his head, no.
Last year Rep. MetCalfe wrote a series of letters to the Pennsylvania State Police. In his response to Captain Jeffrey B. Miller's letter of June 13, 2000, Rep. Metcalfe told Captain Miller that, "We appreciate the response which you provided to our earlier inquires regarding the Pennsylvania State Police practice of maintaining a registry of handguns sales. We want to note, however, that we were disappointed you were not able to cite any specific statutory authority regarding the registry."
The state police could not cite specific statutory authority to Judge Pelegrini, they could not cite specific statutory authority to Rep. MeCalfe, but some how they could cite statutory authority to the FBI. The problem with that cite is that they were citing was old law.
Members of the legislature have directed that the state police destroy the database, and now, so has the federal government. The state has refused both directives. We have no other alternative than to pursue, with whatever means at our disposal, the final destruction of the database, and seek the maximum penalty allowed by the law against those who refuse.
With the FBI's involvement the media has shown more interest in this matter. However, they have taken the obvious liberal position that the retention of the records should be allowed because it serves a law enforcement need. The fact of the matter is that the need for law enforcement to trace a firearm used in crime will still be in place if the database is destroy. The State Police have testified that they are currently only keeping records on handguns owners. That information on long guns are destroyed. Currently, the federal government requires that each manufacturer maintain records on the distribution of all firearms they manufacture to federally licensed distributors. Those distributors must keep records on the distribution of all firearms they distribute to federally licensed dealers.
When ever any law enforcement agency in the country uncovers a firearm, no matter whether it is a long gun (rifle and shotgun) or a handgun, which is believed to have been used in a crime, all that officer needs to do is to contact the National Tracing Center (NTC) operated by the Bureau of Alcohol Tobacco and Firearms (ATF) and request a trace. Tracing is free to the requesting jurisdiction; the NTC will trace any and all crime guns submitted for tracing. A routine firearm trace takes nine to 13 business days, when the trace can be completed. Urgent traces, which must adhere to certain criteria, are completed within 24 hours. Criteria for an urgent trace include; assaults, bank robbery, kidnapping, murder/suicide, rape/sex crimes, terrorist act or threat, undercover investigation, necessity to hold a suspect in custody, or issuance of a search warrant.
By using the NTC the State Police can trace any type of gun used in a criminal act, not just handguns, no matter whether that gun was purchased in Pennsylvania or any other state in the country, and get information on who last purchased that firearm. The State Police, using the Record of Sale Database can only get information on the last purchaser of handguns sold in Pennsylvania. Since they testified that they are not aware of the NTC, then they must not need to trace long guns used in criminal activity, nor handguns purchased out of state.
In an interview on Pittsburgh's KDKA radio morning talk show host John Cigna asked our attorney, Jon Pushinsky, why did he think that it was wrong for the State Police to keep the database. His response was that it didn't matter what he though, the fact of the matter was that the Record of Sales Database was illegal.
Every gun owner owes a debt of gratitude to Rep. Metcalfe. He is almost single-handedly been fighting for our rights, against almost insurmountable odds. We know of no legislator who has been battered in such a thuggish way by hired bureaucrat as much a Mr. Metcalfe, and he is taking this abuse and keeps fighting back. This is not just and issue with Mr. Metcalfe, it is principal. That principal is the Constitution of the Pennsylvania and the United State. That principal is that government bureaucrats work for the people of this Commonwealth, and not the other way around. That they can only exercise authority over the rights of citizens in this Commonwealth when the legislature give them expressed authority. They do not have such authority in regards to the maintenance of the registry. In fact, it is strictly prohibited. This is an agency that is out of control, and is seriously in need of legislative oversight. Mr. MetCalfe takes his responsibility seriously. He is truly a representative of the people, he is truly a statesman.