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NRA petition to the District Court
http://www.potowmack.org/nrareno1.html

NRA petition to the Appeals Court (This File).

Dept. of Justice brief to the Appeals Court
http://www.potowmack.org/nrareno2.html

NRA reply brief to the Appeals Court
http://www.potowmack.org/nrareno4.html

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.


This brief draws heavily on 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 doctrine. The armed populace doctrine 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 as a rule making 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 doctrine 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," of militia resources, 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.

What is remarkable about the armed populace fantasy is that there is no public enlightenment, no opposition, and no political leadership that exposes the fraud and the strategy and defines the issue in any other terms.
http://www.potowmack.org/cong5.html
http://www.potowmack.org/196rehm.html
http://www.potowmack.org/bcabcnra.html
http://www.potowmack.org/news.html
http://www.potowmack.org/washpost.html
http://www.potowmack.org/emerappi.html


CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

(A) Parties and Amici.

The plaintiffs-appellants in this case are the National Rifle Association of America, Inc., Law Enforcement Alliance of America, Inc., and natural persons known as Jane Does I and II and John Does I, III, and IV. The defendant-appellee is Janet Reno, Attorney General of the United States. There are no other parties, interveners or amici who appeared before the district court or who are before this court.

Two plaintiffs-appellants in this case are non-profit corporations, the National Rifle Association of America, Inc. ("NRA"), and Law Enforcement Alliance of America, Inc. ("LEAA"). Neither has any parent companies or any publicly-held company that has a 10% or greater ownership interest. Neither has issued shares or debt securities to the public. The purposes of NRA include teaching firearms safety, promoting the shooting sports, and fostering the lawful use of firearms. LEAA consists of law enforcement professionals and concerned citizens dedicated to making America safer.

(B) Ruling Under Review.

The ruling under review, which is unpublished, is the Memorandum and Order dated July 7, 1999, dismissing the complaint. That ruling relies in part on the Memorandum Order dated January 27, 1999, denying the motion for preliminary injunction, from which an appeal was not taken. The name of the district court judge is Hon. James Robertson.

(C) Related Cases.

This case has never been before this court or any other court, other than the district court. Counsel is unaware of any related cases currently pending in this court or in any other court.
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TABLE OF CONTENTS
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TABLE OF AUTHORITIES
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Glossary

Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Abbreviation

Bureau of Alcohol, Tobacco, and Firearms . . . . . . . . . . . . . . . . BATF

Chief Law Enforcement Officer . . . . . . . . . . . . . . . . . . . . . . . . CLEO

Federal Firearms Licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FFL

Gun Control Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .GCA

National Instant Criminal Background Check System . . . . . . . .NICS

NICS Transaction Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . .NTN

Point of Contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .POC

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JURISDICTIONAL STATEMENT

The district court had jurisdiction under 28 U.S.C. § 1331, in that the matter in controversy arose under the laws of the United States and was a controversy to which the United States was a party. This is an action for review under the Administrative Procedure Act under 5 U.S.C. § 702, a declaratory judgment under 28 U.S.C. § 2201, and a writ of mandamus under 28 U.S.C. § 1361, to declare a federal regulation contrary to statute and for injunctive relief against the Attorney General.

This Court has jurisdiction under 28 U.S.C. § 1291. On July 7, 1999, the District Court dismissed the complaint and rendered judgment for defendant. Plaintiffs timely filed a notice of appeal on July 16, 1999. This appeal is from a final order by the United States district court that disposes of all claims with respect to the parties.

STATEMENT OF ISSUES

The Brady Handgun Violence Prevention Act, P.L. 103-159, 107 Stat. 1536 (1993) established the national instant criminal background check system ("NICS") to determine whether persons may lawfully receive firearms from federal firearms licensees. 28 C.F R. § 25,9(b) provides that, in administering NICS, the FBI shall retain for six months information on persons who may lawfully receive firearms. The issues are:

1. Whether the retention of information on such persons is void under § 103(i) of the Act, which provides that no federal agency may (1) "require that any record" generated by NICS "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 NICS "to establish any system for the registration of firearms, firearm owners, or firearm transactions," except regarding ineligible persons.

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2. Whether the retention of information on such persons is void under 18 U.S.C. § 922(t)(2), which provides that, if a person may lawfully receive the firearm, NICS shall assign a unique number to the transfer, provide the number to the licensed dealer, and "destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer."

3. Whether the above statutory provisions invalidate 28 CFR § 25.9(d), which provides that states which administer background checks in lieu of the FBI are not subject to the Act’s destruction requirements if their NICS-generated records are "created and maintained pursuant to independent state law regarding firearms transactions."

STATUTE AND REGULATIONS

The following are set forth in the Addendum: Brady Handgun Violence Prevention Act, P.L. 103-159, 107 Stat. 1536 (1993); 28 C.F.R. Part 25.

STATEMENT OF THE CASE

Proceedings in the Court Below

The complaint and motion for preliminary injunction were filed on November 30, 1998, the effective date of § 102(b) (Permanent Provision) of the Brady Handgun Violence Prevention Act, P. L. 103-159, 107 Stat. 1536 (1993) ("the Act"). Plaintiffs sought a declaration that 18 U.S.C. § 922(t)(2), § 103(h) and § 103(i) of the Act, and § 621 of Title Vl of P.L. 105-277 prohibited the FBI and State Points of Contact (POCs) from keeping records on persons who the N1CS determined may lawfully receive firearms. Plaintiffs claimed that 28 CFR § 25.9(b), which allowed the FBI to keep such records for 6 months, and 28 CFR § 25.9(d), which allowed certain State POCs to keep such records indefinitely, were void and should be enjoined.

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On January 27, 1999, the district court determined that plaintiffs were not likely to prevail on the merits and denied the motion for a preliminary injunction requiring NICS to destroy information on firearm purchasers immediately upon approval of the transaction. (Memo. Order, Joint Appendix ("App.") 27) On July 7, 1999, the district court dismissed the complaint under F.R.Civ.P 12(b)(6) and rendered judgment for defendant. (Memo. & Order, App. 34)

Facts

Plaintiff National Rifle Association of America, Inc. ("NRA"), which has a membership of almost 3 million persons, brought this action on behalf of itself and its members. The purposes of NRA include teaching firearms safety, promoting the shooting sports, and fostering the lawful use of firearms. Plaintiff Law Enforcement Alliance of America, Inc. ("LEAA") is an association of over 65,000 members and supporters who are law enforcement professionals and concerned citizens dedicated to making America safer. LEAA brought this action on behalf of itself and its members, a large proportion of whom own firearms Compl. ¶ 2-3, App. 7.

Plaintiffs Jane Doe I and John Does I, III, and IV are citizens of the United States and members of the NRA Plaintiffs Jane Doe II and John Doe III are citizens of the United States and members of LEAA. They brought this action under these pseudonyms so as not to forfeit their privacy rights under the Act which this action was instituted to protect. Compl. ¶, App 7.

NICS began operations on November 30, 1998, on which date each of the Doe plaintiffs and numerous members of NRA and LEAA provided their names and other identifying information to federal firearms licensees (FFLs). The FFLs contacted the NICS, which searched the relevant data bases and provided the FFLs with "proceed" responses. The FFLs then transferred firearms to said persons N1CS will preserve records on such persons for as much as six months. Millions of

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members of NRA and LEAA will continue purchasing firearms and being subjected to N1CS in the future. Compl. ¶s 23-32, App. 14-17.

SUMMARY OF ARGUMENT

The Brady Handgun Violence Prevention Act, P.L. 103-159, 107 Stat. 1536 (1993) established the NICS to determine whether persons may lawfully receive firearms from FFLs. The Act provides for stringent privacy protections which prohibit the government from keeping any information on persons legally eligible to receive firearms. However, 28 C.F.R. § 25.9(b) provides that, in administering NICS, the FBI shall retain information on such persons for six months.

The regulation is void under § 103(i)(1) of the Act, which provides that no federal agency may "require that any record" generated by NICS "be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof." Once N1CS advises an FFL that a person may lawfully receive a firearm, any retention by NICS of information on that person constitutes the recordation or transfer of such NICS-generated record to a government facility. Recording or transferring such information to the FBI for six months violates the law

The regulation is also void under § 103(i)(2), which prohibits any federal department from using NTECS "to establish any system for the registration of firearms, firearm owners, or firearm transactions," except regarding ineligible persons. The "audit log" is a registration of firearm owners and transactions with a six-month duration.

The Attorney General would simply nullify both provisions of 103(i). While the § 103(i) issue is set forth in Count Two of the complaint and was vigorously raised, the district court failed to mention that provision.

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The retention of information on lawful firearm purchasers is likewise void under 18 U.S.C. § 922(t)(2), which provides that, if a person may lawfully receive the firearm, N1CS shall assign a unique number to the transfer, provide the number 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 purports to arrogate to herself the power to exempt herself from this destruction requirement for as long as she, in her discretion, proclaims. Like citizens, government officials have a duty to comply with the law at all times.

In addition to the "audit long" provision, 28 CFR § 25.9(d) provides that states which administer background checks in lieu of the FBI are not subject to the Act’s destruction requirements if their NICS-generated records are "created and maintained pursuant to independent state law regarding firearms transactions." While states may maintain their own systems, the Attorney General cannot appoint states as federal agents, require FFLs to contact those states instead of N1CS for background checks, and then exempt those states from federal privacy provisions.

No deference is due the Attorney General in interpretation of statutes which have as their purpose the protection of the privacy rights of citizens from the Attorney General. Moreover, the clarity of the statutes at issue are not in question, meaning that "the court, as well as the agency, must give effect to the unambiguously expressed intent ofCongress." Chevron USA v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-43 (1984). If the Attorney General disagrees to the means established by Congress, she must address her dissatisfaction to Congress, not the courts.

Not only does the "audit log" violate the means chosen by Congress, but its goals would violate the Fourth Amendment. The Attorney General explains that she must send FBI agents to

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audit FFLs to determine if they have made unauthorized contacts with NICS or stolen the identities of other persons. To ferret out violations of the law, FBI agents would also investigate purchasers cleared by NICS. However, 18 U.S.C. § 923(g) meticulously delegates power to the Secretary of the Treasury to inspect the records of licensees. Regulatory inspections must be based on a valid statute which carefully limits the time, place, and scope of a search. United States v. Biswell, 406 U.S. 311, 315 (1972).

For the above reasons, this Court should hold that the regulations at issue are void and remand the case for appropriate orders to require NICS to comply with the law.

ARGUMENT

Standard of Review

As the issues here are questions of law, this Court conducts a de novo review. Berger v. Iron Workers Reinforced Rodmen, 170 F.3d 1111, 1125 (D.C. Cir. 1999).

I. THE INSTANT CHECK SYSTEM AND THE REGULATIONS

A. Creation of the System

The Act provides for a five year Interim Provision, in which checks were conducted by State law enforcement entities, and a Permanent Provision under which the Attorney General conducts checks. § 103(b) of the Act provides:

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a firearm to a non-licensee, subject to certain exceptions, without having first contacted the system for a background check. The FFL 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.

§ 922(t)(2) provides that, once a unique number is assigned to an approved transfer, it is communicated to the FFL and NICS must destroy all records regarding the call, the person, and the transfer (other than the unique number and the date). § 103(i) prohibits NICS-generated records from being recorded at or transferred to any government premises, and further prohibits any system of registration of lawful firearms owners or transactions.

By promulgation of AG Order No. 2 186-98, Final rule: National Instant Criminal Background Check System Regulation, 63 F.R. 58303 (Oct. 30, 1998), the Attorney General created 28 C.F R. Part 25, with an effective date of November 30, 1998. 28 C.F.R. § 25.2 includes the following pertinent definitions

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Before transferring a firearm, an FFL must contact NICS and provide information about the proposed transferee. § 25.7 provides:

(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 N1CS 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.

On receiving a call from an FFL requesting a background check, the N1CS Operations Center assigns a NICS Transaction Number (NTN), searches the databases, and responds to the FFL with: "Proceed’ response, if no disqualifying information was found." § 25.6(c)(1). "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." § 25.2. Other responses are "delayed," meaning that further research is necessary, and "denied," meaning that receipt of the firearm would violate the law.

B. Retention of Records as "Audit Log" for Six Months

"Audit log means a chronological record of system (computer) activities that enables the

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reconstruction and examination of the sequence of events and/or changes in an event." 28 C.F.R. § 25.2. § 25.9(b) provides in part:

The commentary states: "Although the Brady Act mandates the destruction of all personally identified information in the NICS associated with approved firearms transactions (other than the identifying number and the date the number was assigned), the statute does not specify a period of time within which records of approvals must be destroyed." 63 FR at 58303. The commentary does not discuss § 103(1) of the Act.

C. Permanent Retention of Records Transferred to POCS

Depending on the state, FFLs contact either the NICS Operations Center (which is operated by the FBI) or a state law enforcement agency. 2 Concerning records generated by the FBI, § 25.9(c)

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provides:

Regarding state participation in the operation of NICS, 28 CFR § 25.2 includes the following definition•

The regulations purport to exempt POCs from compliance with the Act’s requirement that records on lawful transferees be destroyed, if the records are authorized by state law. § 2 5.9(d) states:

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H. § 103(i) OF THE ACT PROHIBITS NICS-GENERATED
RECORDS FROM BEING RECORDED AT A GOVERNMENT
FACILITY AND PROHIBITS REGISTRATION OF FIREARMS OWNERS

Count two of the complaint alleges that the retention of records for up to six months violates § 103(i) of the Act, which provides:

The Attorney General is not authorized to declare NICS exempt from these provisions or that such provisions are inoperative until such time as she chooses. Absent from the two opinions of the district court is any mention of count two of the complaint or § 103(i) of the Act, although vigorously raised in the injunction motion and the opposition to the motion to dismiss. For the following reasons, count two states a valid claim.

A. NICS Records May Not be "Recorded at or
Transferred to" a Government Facility

As noted above, § 103(i)(1) 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 federal facility. The Audit Log is a clear violation of § 103(i)(1): it constitutes

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"any record or portion thereof generated by" NICS, and it is "recorded at or transferred to" a federal facility. In her extensive briefs in the court below, the Attorney General did not deem § 103(i)(1) worthy of mention, other than to suggest it means no more than, and is subsumed by, subparagraph (2). The district court made on mention of 103(i)(1).

"It is our duty to give effect, if possible, to every clause and word of a statute, . rather than to emasculate an entire section, as the Government’s interpretation requires." United States v. Menasche, 348 U.S. 528, 539 (1955). Ratzlaf v. United States, 510 U.S. 135, 140-41(1994) cautioned against treating statutory terms "essentially as surplusage— as words of no consequence" Further, § 103(i) uses the disjunctive "or." "Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings. . . ." Reiter v. Sonotone Corp., 442 U.s. 330, 338-39 (1.979). See United States v. Generix Drug Corp., 460 U. S. 453, 459 (1983) (avoiding reading which would render one alternative "superfluous" where "the definition is disjunctive").

§ 103(i)(1) establishes an absolute prohibition with no balancing test allowing retention of’ records. Similarly, National Rifle Ass’n v. Brady, 914 F.2d 475, 483-85 (4th Cir. 1990), cert. denied 499 U S 959 (1991) held:

Id. at 483-84, quoting Chevron USA v. Natural Resources Defense Council, Inc., 467 U. S. 837, 84243 (1984). It is noteworthy that the regulations invalidated in NRA sought to confer on BATF investigatory powers of the same type involved in what is euphemistically called an "audit log" here.

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NRA noted the agency’s argument that, without another regulation the court invalidated, it would be difficult for its inspectors to detect unlawful dispositions of firearms by licensees. Id. at 484-85. The court responded:

Id. at 485, quoting McCulloch v. Sociedad Nacional, 372 U.S. 10, 22 (1963).

Defendant has argued that § 103(i)(1) cannot mean what it says because § 103(i)(2) and § 922(t)(2) expressly authorize the government to keep information on would-be ineligible transferees; ergo, § 103(i)( 1) does not protect the privacy of eligible transferees. However, statutory authorization to keep records on would-be unlawful transferees 3 hardly swallows the general rule against recording information on lawful transferees. Indeed, because § 103(1) is a single sentence containing two prohibitions, the exception clause following the second prohibition applies to both prohibitions. Moreover, the destruction requirement of § 922(t)(2) does not apply to unlawful transferees. All of these provisions must be read in para materia. "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).

In sum, § 103(i)(1) prohibits "any record or portion thereof generated by" NICS from being "recorded at or transferred to" a federal facility, except as to unlawful transferees. Congress could

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hardly have been clearer. The regulation providing for the "audit log" is void.

B. The Prohibition on "Any System for the Registration of" Firearm Owners or Transactions

§ 103(i)(2) provides that no department of the United States may "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 ineligible persons. The Attorney General’s response is purely semantical: by calling a registry of firearms transferees an "Audit Log," it is no longer a registry. The fact that 28 C.F.R. § 25.9(b) quotes § 103(i)(2) while violating it only demonstrates Orwellian drafting skills. The district court’s decisions fail to mention § 103(i)(2).

§ 103(i)(2) prohibits "any system" of registration, regardless of whether it has a 6-month duration or is permanent. Moreover, the Audit Log is registration in the ordinary sense. Webster’s New World Dictionary 1130 (1988) defines "register" in part as "a record or list of names. . ., often kept by an official appointed to do so." "Registration" means "(1) a registering or being registered (2) an entry in a register"

The Audit Log constitutes registration as that term has been used since 1934 in the National Firearms Act (NFA), 26 U.S.C. § 5841, which provides regarding machineguns and other narrowly defined "firearms":

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The Audit Log is a form of registration even though the firearms are not recorded. § 1 03(i)(2) prohibits registration not just of firearms, but also of "firearm owners" and of "firearm transactions." 4

The temporary duration of the Audit Log does not mean that it is not "registration." The NFA itself does not provide for a "permanent" registration. § 584 1(c) provides that "each firearm transferred shall be registered to the transferee. . ." Should a transferee then transfer the firearm a week later (see § 5812), the firearm would have been registered to the original transferee for only one week. 5

Once again, Congress expressed itself in the clearest of terms. The Audit Log constitutes registration and violates § 103(i)(2).

C. Legislative Background

It is difficult to understand how Congress could have been plainer in its language. Even so, the legislative history provides insights into the reasons for enactment of § 103(i).

The Brady Bill, HR. 7, as passed in the House in 1991, had no provision similar to § 103(i). However, while requiring a waiting period and the reporting of transfers to local police, it required police to destroy such reports within 30 days. House Report 102-47, 102d Cong., 1st Sess., 3

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(1991). This destruction requirement appeared in H.R. 467, introduced in 1989. 6 Id. at 7. In the 1991 debate, Rep. Roukema argued that the Brady bill "in no way provides for a system of national gun registration" because, when a transfer is approved, "law enforcement officers must destroy the information" in 30 days. Cong.Rec., 102d Cong., 1st Sess., H2836 (May 8, 1991).

In passing H.R. 7, the House defeated H.R. 1412, a substitute offered by Rep. Staggers. House Report 102-47 at 10. Yet the Staggers substitute contained the Seeds of the Permanent Provision of the Act. It would have established a federal instant check system that would assign a unique number to a transfer, provide the licensee with the number, and "destroy all records" of the system relating to the call (other than the number and date) and to the transferee. Cong.Rec., 102d Cong., 1st Sess., H2855 (May 8, 1991). It also included a provision almost identical to what would pass as § 103(i) of the Act. Id. at H2856. Rep. Armey asked Staggers:

Id. at H2828-29. Staggers replied, "yes, that is correct." The colloquy continued:

Id. at H2829.

When taken up in the Senate, Senator Hatch argued that "the Brady Bill is a step towards gun

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registration." 135 Cong. Rec. S8253 (June 20, 1991). Senator Stevens stated: "We have just learned once again about gun registration. . . . We have all heard, my generation did, about Hitler and how, in country after country, he read the gun registration laws and took the guns away from those who had them. This helped the Nazis take over Europe." Id. at S8266. The bill would "require or encourage gun registration by the local police and the Federal Government," which could "compile lists of handgun buyers." The goal was "national registration with the intent of confiscation of guns." Id. at S8267. Senator Craig referred to the bill as enacting "gun registration, [and] other unprecedented threats to the civil rights of American gun owners." Id. at S8268.

Senator Stevens offered an amendment to HR. 7 which provided for an instant check and language virtually identical to what would be enacted as § 103(1). Id. at S8932, S9025 (June 27, 1991) Stevens explained:

Id. at S8934 (June 27, 1991) (emphasis added).

Although the substitute failed, the Dole-Metzenbaum compromise bill was introduced and debated. Id. at S9075 if. (June 28, 1991). It provided for an interim waiting period and a permanent federal instant check, and included an identical provision as would pass as § 103(i) of the Act. Id. at S9082, 9196. Senator Thurmond explained about the bill: "This instant check system will be used by licensed dealers to check the eligibility of purchasers of all firearms and no records of legitimate purchasers may be kept." Id. at S9080 (emphasis added). The bill as amended passed the Senate. Id. at S9086. However, the Brady bill was then attached to the broader crime bill which was not

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enacted.

By the time the Brady bill was debated and passed in 1993, what became § 103(i) of the bill was already in both House and Senate versions and, being non-controversial, was not debated __ amended. Id. at H9121 (Nov. 10, 1993), S16507 (Nov. 19, 1993).

The above describes the immediate genesis of 103(i) in the Brady Bill, but its origin is far older. Congress has historically rejected the registration of firearm owners and transactions and rejected a proposal for registration of handguns in the National Firearms Act. National Firearms Act Hearings Before the Committee on Ways and Means, U.S. House of Representatives, 73rd Congress 2d Sess., 58 (1934). The Property Requisition Act of 1941 prohibited any construction to "record the registration of any firearms possessed by any individual for his personal protection or sport "to impair or infringe in any manner the right of any individual to keep and bear arms." 7 P.L. 55 Stat. 742 (1941).

Passage of the Gun Control Act of 1968 coincided with the defeat of all proposals to record firearm registration at the federal, state, and local levels. 114 Cong.Rec. 27422-56 (Sept. 18, 19__ Alarmed in 1978 that the Bureau of Alcohol, Tobacco and Firearms (BATF) sought registration through regulations. Congress has prohibited in every Treasury appropriation act passed since then the use of funds for firearm registration. 8

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§ 103(1) was copied almost verbatim from 18 U.S.C. § 926(a), which is directed to the Secretary of the Treasury. Enacted as part of the Firearms Owners’ Protection Act of 1986, its purpose was explained by Senator McClure as follows: "The central compromise of the Gun Control Act of 1 968— the sine qua non for the entry of the Federal Government into any form of firearms regulation was this: Records concerning gun ownership would be maintained by dealers, not by the Federal Government and not by State and local governments." 131 Cong.Rec. S9163-64 (July 9, 1985).

In sum, § 103(i) reflects Congress’ historical rejection of the government keeping records on lawful firearms owners and transactions. Its legislative history includes plentiful instances in which its proponents explained that concept in simple and direct language. The regulations at issue violate the letter and intent of the law.

III. THE RECORD DESTRUCTION REQUIREMENTS
OF § 922(t)(2) and § 621 PRECLUDE RETENTION
OF PERSONAL INFORMATION

A. 18 U.S.C. § 922(t)(2) Requires Record Destruction and
Does Not Authorize the Attorney General to Delay Compliance

Count one alleges that the six-month retention of records violates the destruction requirements of 18 U.S.C. § 922(t)(2) and § 621 of Title VI, P.L. 105-277 (1998). Count one states a claim on which relief can be granted, and the district court erred in dismissing it.

The language, structure, and purpose of 922(t)(2) commands three duties to be carried out in sequence and immediately. It states:

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The terms "assign," "provide," and "destroy" are present tense, transitive verbs, thereby describing actions taken one after the other and forthwith. The Act includes no "grace" period authorizing defendant to exempt herself, for such period as she arbitrarily chooses, from the destruction requirement, which is immediately applicable once the unique identification number is provided to the licensee. 9 The Act does not provide language typically found when discretion is delegated— it mandates simply "destroy all records," not "destroy all records at such time as the Attorney General may prescribe by regulations."

The Attorney General arrogates to herself the authority to disobey, each and every day for six months, the command in § 922(t)(2) to destroy records, because the law does not expressly state when it must be obeyed. 63 F.R. 58303-04. In the court below, she argued that "her decision concerning when to destroy records of such transfers is entirely discretionary." (Opposition to Motion for Preliminary Injunction 54).

The district Court found that "the statute does not on its face require immediate destruction"

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and "the Justice Department’s interpretation of the statute is reasonable." (Mem. Order, App. 24-25) "The omission of a timetable from the statute presents a classic Chevron interpretation question." Id. at 26. The court found the construction "permissible" because it is "rational and consistent with the statute." The court added that plaintiffs had shown only "a theoretical loss of a privacy 10 Id. at 28. In its two-page dismissal order, the court simply cited Chevron and § 922(t)(2) again. (Mem., App. 34)

The scheme of the Permanent Provision of the Act is set forth in the directive of 103(b) that the Attorney General shall establish an "instant" check system which an FFL can access "for information, to be supplied immediately, on whether receipt of a firearm" is lawful. NICS would have this capability because it would be based on computerized records.

In view of § 103(b), it is evident that Congress intended the "assign" and "provide" mandates of § 922(t)(2) to be conducted immediately, since assigning the unique identification number and providing that number to the FFL are the means by which the § 103(b) requirement was to be executed. The "destroy" mandate is part and parcel of this system, and compliance with that mandate must also be immediate.

Had Congress intended to allow a grace period for record destruction, language specifying the time would have been included. The Interim Provision of the Act required the licensee to furnish a copy of the transferee’s statement to the local chief law enforcement officer ("CLEO"). 18 USC.

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§ 922(s)(1)(A)(IV). The CLEO was commanded to search manual and computerized records and to ascertain the legality of the transaction within five business days. 12 The CLEO "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. • 13 § 922(s)(6)(B)(i).

The records generated under these provisions were paper, not computer records capable of instant destruction by pushing a button. Congress required destruction of the paper records in a mere 20 days and allowed no "audit log" thereafter, and did so in a manner imposing an unfunded mandate on local law enforcement. It is impossible to comprehend Congress intending to allow paid federal employees who could destroy computerized records with the push of a button to keep them for six months.

As passed, the Act contained the Senate version, not the House version stating that NICS must "immediately destroy all records of the system with respect to the contact." 139 Cong.Rec. H9l23 (Nov. 10, 1993), S16506 (Nov. 19, 1993). Yet Senator Craig, discussing the Senate version, noted privacy concerns about the computerized instant check and explained: "It is a matter of law that they [the records] should not stand once the background check is done, so that there not be a fear that somebody were compiling a master list of guns and gunowners. That is not the intent and the law clearly understands that." Id. at S 16328.

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As reported from the House Judiciary Committee, the permanent provision of H.R. 1025 had no provision similar to § 922(t)(2), although it did include what would pass as § 103(i). Id. at H9120-21 (Nov. 10, 1993). Rep. Gekas offered an amendment specifying that the system would assign a unique number to an approved transfer, provide it to the licensee, and "immediately destroy all records of the system with respect to the contact (other than the identification number and the date the number was assigned) and all records of the system relating to the transferee or the transfer or derived therefrom. . . ." Id. at H9123. In the extensive debate that followed, this provision passed without objection. See Id. at H9123-31.

While the conference committee’s version did not include the word "immediately," this was among the differences in the House and Senate versions reflecting mere "clerical corrections, conforming changes made necessary by agreements reached by the conferees, and minor drafting and clerical changes." 14 Id. at H10896 (Nov. 22, 1993). The conference report listed substantive differences between the House and Senate versions, but the destruction requirement was not listed among them, Id.

In sum, the destruction requirement of § 922(t)(2), particularly when read with § 103(i), is plain. The Attorney General does not have authority to disregard it for six months.

B. Regulations to Ensure Privacy and Security Under § 103(h)

§ 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." Instead, she

Page 23

prescribed regulations authorizing the violation of privacy and security of the information of the system for a six-month period.

Mandatory duties in ensuring privacy and security are the destruction requirement and the prohibitions on recording NICS-generated records on government premises and on registration. Incredibly, the Attorney General Sees the duty to destroy records and ensuring the privacy and security of the information as "countervailing." 63 FR. at 58304. Ensuring the "privacy" of lawful firearm transferees by keeping records on them for as long as six months is Orwellian Newspeak.

The persons whose privacy Congress intended to protect are law-abiding firearm transferees. These are the only persons entitled to privacy from the government once a transfer is approved— the Attorney General is not required to destroy records on persons who are ineligible to receive firearms. The privacy of transferees was intended to be protected against, first and foremost, governmental entities. The legislative debates bear this out. (Supra, part II, C.) § 103(i) of the Act directs its prohibitions against any "department, agency, officer, or employee of the United States," subpart (1) of which prohibits NICS-generated records from being recorded at or transferred to any "facility owned, managed, or controlled by the United States or any State or political subdivision thereof."

The Attorney General argues as if Congress was concerned only with protection of privacy from FFLs who could run checks on persons who did not intend to purchase firearms. Thus, the argument goes, an "audit log" must be retained for six months to ferret out such unscrupulous FFLs. Yet neither the statutory language nor the legislative debates express any concern that FFLs pose a threat to privacy. Indeed, while § 922(t)(2) commands the Attorney General to "destroy all records" of the call, the person, and the transfer (other than the number and the date), the law entrusts and commands the FFL to keep full information on the transferee and the firearm. 18 U.S.C. §

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923(g)(1)(A) (FFL shall maintain records of firearm dispositions); 27 C.F.R. § 178.124(c) (record shall include transferee’s name, address, date and place of birth, height, weight, and race, and make, model, and serial number of firearm). FFLs are required to maintain these records for 20 years. 27 C.F R. § 178.129(b). The Attorney General points to nothing in the statute, the floor debates, the committee reports, or the hearings which reveal any congressional concern about invasion of privacy by FFLs.

Obviously, Congress trusted FFLs to keep records on firearm transferees and did not trust the Attorney General to keep such records. It further trusted FFLs with the knowledge of whether a transferee may lawfully receive a firearm. See § 922(t)(1), (4). In directing the Attorney General in § 103(h) of the Act "to ensure the privacy and security of the information" in NICS, Congress had in mind the protection of privacy from the government, and never expressed concern about insignificant misuse of NICS by FFLs. 15 For the Attorney General to refuse to destroy the records on approved transferees for six months under the guise of the "privacy" mandate of § 103(h) is to stand the law on its head.

C. The Prohibition on Use of Funds

§ 621 of Title VI of P.L. 105-277 (1998), the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, provides: "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.

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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."

This was enacted in response to AG Order No. 2158-98— Proposed rule: National Instant Criminal Background Check System Regulations, 63 F.R. 30430 (June 4, 1998), proposing the creation of, inter alia, 28 C.F.R. § 25.9(b)(1), under which NICS-generated records on approved transferees would not be destroyed until "after eighteen months." 63 F.R. at 30437.

Rep. Barr explained the impetus for the destruction requirement as follows: "Gun registration systems have been used in many foreign countries, and in the United States jurisdictions including California and New York City, to confiscate firearms from citizens." CONG. REC. HI 1652 (Oct 20, 1998). The Act’s destruction requirement "was intended to prevent the FBI or any other agency from using the system to keep a listing of everyone approved by the system to buy a firearm." Id. The proposed Audit Log "would violate the letter and spirit" of the Act, according to Rep. Barr, who added: "This language is carefully crafted to ensure the FBI complies with all the provisions of the Brady Act and the Firearms Owners’ Protection Act which prevent this system from turning into a gun registration scheme to restrict the second amendment rights of law-abiding Americans." Id

In a colloquy, Senator Stevens noted that NICS was intended "to protect the privacy of individual law-abiding gun owners," explaining: "One of the greatest concerns and legitimate fears of law abiding gun owners is that the federal government will create a federal gun owner registration system where law abiding gun owners exercise of their constitutional rights will be carefully monitored" Id. at S 12742 (Oct. 21, 1998). Senator Lott stated that the FBI was prohibited from keeping NICS records on approved transfers "for one and one half years, or for any period of time" Id Stevens added that, under § 922(t)(2), destruction ofthe records "shall occur contemporaneously

Page 26

upon the system’s approval of the firearms transfer" and the conveyance of the unique number and approval to the dealer. Id. The Lott-Stevens colloquy concerned the conference committee version of § 621 that did not use the word "immediate" and that was enacted into law. Id. at S 12742 (referring to report printed in House proceeding), HI 1075.

Unenacted bills that would have stated "immediate destruction" are irrelevant. "This Court is reluctant to draw inferences from Congress’ failure to act." Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 306 (1988) (noting that congressmen who did not support bills may have believed that existing law already so provided).

In sum, the Act commanded the Attorney General to destroy the records. When the Attorney General proposed an eighteen-month retention period, Congress precluded use of any funds for any system that did not destroy the records. Under defendant’s reading, these laws are meaningless.

IV. POCS ARE NOT EXEMPT FROM § 922(t)(2) AND § 103(i)

Count three of the complaint alleges that, if state and local POCs are authorized by the Act, they must be bound by the restrictions of 922(t)(2) and § 103(i). Under 28 C.F.R. § 25.9(d), the records of state and local law enforcement units serving as POCs on approved transferees are not subject to the Act’s requirements for destruction if such records are "created and maintained pursuant to independent state law regarding firearms transactions."

Absent from the two opinions of the district court is any mention of count three, although it was vigorously raised in the injunction motion and the opposition to the motion to dismiss. The court’s only reference to POCs is its statement that "the Brady Act directs the Federal Bureau of Investigation (FBI) and points of contact in each of the states (POCs)to implement NICS" (Mem. Ord. 2) To the contrary, the Act is silent on the use of POCs.

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The Act does not authorize the delegation of NICS duties to states and localities. Under the Act’s Interim Provision, chief law enforcement officers (CLEOs) were the only entities authorized to conduct background checks. 18 U.S.C. § 922(s)(2). By contrast, the Permanent Provision anticipates that NICS will be administered solely by the Attorney General. § 103(a) concerns how "State criminal records systems and the telephone or electronic device of FFLs will communicate with the national system"— it does not state that State systems and FFLs will communicate with each other. It also provides for "a timetable by which the State should be able to provide criminal records on an on-line capacity basis to the national system." § 103(b) provides that "the Attorney General shall establish a national instant criminal background check system that any licensee may contact . . ." 16

The Act does not preempt state law, which may require retention of records on firearms transfers independently of federal law or NICS. However, the Attorney General is not authorized to require an FFL to contact a POC rather than the FBI directly. Further, a state acting as an agent of the Attorney General to administer NICS is not exempt from the Act’s privacy protections.

§ 103(i)(l) provides that no department of the United States may "require that any record or portion thereof generated by" NICS "be recorded at or transferred to a facility" of "any State or political subdivision thereof." The regulations as applied in POC states do just that— they require that records generated by NICS be transferred to facilities of states and their political subdivisions. Further, § 103(i)(2) prohibits any federal department from using NICS "to establish any system for

Page 28

the registration of’ firearm owners or firearm transactions. This prohibits the Attorney General from requiring FFLs and firearm transferees, in order to comply with NICS, to supply information to POCs for such registration. Finally, even if POCs are authorized to act as the Attorney General’s agents, the Act provides no exemption for records associated with "independent state law regarding firearms transactions" from the destruction requirement of § 922(t)(2).

Federal programs may "deputize States or their political subdivisions to act on behalf of the United States" where "such deputy status is expressly accepted," in which case "a State is acting in effect as an agent of the United States." 17 Dixson v. United States, 465 U.S. 482, 510 (1984) (O’Conner, J., dissenting on other grounds). By analogy, the Fourth Amendment applies to a warrantless, private search if the party "acted as an instrument or agent of the Government." Skinner v. Railway Labor Executives’Ass’n, 489 U.S. 602, 614 (1989). The test for agency is the extent of "the Government’s encouragement, endorsement, and participation." Id. at 615-16. "Those who assist federal officers are considered to be federal officers themselves . . . ." United States v. Diamond, 53 F.3d 249, 252 (9th Cir. 1995) (applying 18 U.S.C. § 111). If POCs are acting as agents of the Attorney General to implement federal law, they are bound by the provisions of that law.

If POCs are not acting as NICS agents, FFLs cannot be required to contact POCs, but are required to contact the FBI’s NICS directly. POCs are not appointed according to the Appointments Clause, are not subject to removal, have no federal commission, and do not report to the President. 18

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United States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996) states:

In sum, it is questionable that the Attorney General has authority to delegate the administration of NICS to a state, but if so, then the state is subject to the privacy rules imposed by the Act for NICS. Count three states a valid claim on which relief can be granted.

V. THE ATTORNEY GENERAL IS BY THE
STATUTE AND IS NOT ENTITLED TO DEFERENCE

No deference is due to the Attorney General in interpretation of statutory provisions intended to protect the privacy rights of private citizens from the Attorney General. Independent Insurance Agents v. Board of Governors of Federal Reserve System, 838 F.2d 627,632 (2d Cir. 1988) explains

That decision rejected deference because the purpose of the law was to limit the power of the federal banking agencies in question. "An enactment of that sort must not be given a crabbed interpretation that risks undermining its purpose." Id.

Congress could not have been clearer when it directed that NICS "destroy" the records and prohibited any records from being kept on firearm transfers on government premises. "First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent

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of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron USA v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). "In resolving the threshold question whether Congressional intent is sufficiently clear. . . to review the case under step 1 of Chevron, ‘we are not required to grant any particular deference to the Agency’s parsing of statutory language or its interpretation of legislative history." First Nat. Bank & Trust v. Nat’l Credit Union, 90 F. 3d 525, 527 (D.C. Cir. 1996) (citation omitted).

Despite the Act’s privacy protections, the Attorney General asserted below that "plaintiffs have no privacy interest in the fact of their acquisition of a firearm." (Dismiss Mem. 21) Yet the law recognizes similar privacy interests of various types. Church of Scientology of California v. United States, 506 U. S. 9, 13 (1992) stated in regard to taxpayer records seized via an unlawful summons:

Department of Defense v. FLRA, 510 U.S. 487, 501-02 (1994) held that privacy protections of the Freedom of Information Act prohibit disclosure of home addresses of employees to a union The employees "have some nontrivial privacy interest in nondisclosure, and in avoiding the influx of union-related mail, and, perhaps, union-related telephone calls or visits, that would follow disclosure" Id. at 501 Employees can lessen the chance of such unwanted contacts by not revealing their addresses . . We are reluctant to disparage the privacy of the home, which is accorded special

Page 31

consideration in our Constitution, laws, and traditions." Id. Lawful firearm purchasers have the same privacy interest in avoiding unwanted contacts with the FBI during the 6-month "audit log" period.

While willing to entrust administration of NICS to the Attorney General, Congress was well aware of the need to protect citizens from misuse of power by the FBI. See , e.g., Hobson v. Wilson, 737 F.2d 1, 7 (D.C. Cir. 1984) (the FBI’s "notorious COINTELPRO operation"); Jones v. Federal Bureau of Investigation, 41 F.3d 238, 240 (6th Cir. 1994) (COINTELPRO "a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights").

In the "Filegate" case, Alexander v. FBI, 971 F. Supp. 603, 605 (D.D.C. 1997), the FBI improperly handed over to the White House hundreds of FBI files of Reagan-Bush appointees and employees "FBI Director Louis J. Freeh has himself described what occurred in this case as ‘egregious violations of privacy’. . He describes the system as having failed, and concedes that this failure ‘affected the privacy rights of many persons." Id. at 607.

Alexander found that plaintiffs had "a privacy interest in their FBI files" because when they provided information to the FBI, "they did so with the belief that their FBI files would not be available for any purpose other than the required government clearance. Thus the flies, although not in plaintiffs’ direct control, were still a part of their private and secret concerns." Id. at 609. The same holds true here in that the Act assures lawful firearm transferees that the personal information they give to NICS will not be used for any purpose other than to run the background check and then will be destroyed. The privacy interests here resemble those of the Privacy Act on which the Filegate litigation is based:

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Id. at 612, quoting Senate Report.

"We must be ever mindful that when Congress enacts a statute designed to limit government intrusion in the private affairs of its citizens, the statutory provisions must be followed scrupulously." United States v. Bacheler, 611 F.2d 443, 447 (3d Cir. 1979) (construing 26 U.S.C. § 6 103(a), which prohibits the IRS from disclosing tax return information). 19 See United States v. Lavin, 604 F.Supp. 350, 356 (E.D.Pa. 1985) (§ 6103 "must be strictly construed" against disclosure of taxpayer information to the FBI); McSurely v. McAdams, 502 F. Supp. 52, 56 (D.D.C. 1980)(§ 6103 enacted to protect tax information "from misuse by the White House, various Executive Branch agencies and other government entitles. . . . Of particular concern was the misuse of tax information for partisan political purposes . . .

The Attorney General has made various policy arguments against following the law, but Trahan v. Regati, 824 F.2d 96, 105 (D.C. Cir. 1987) explains:

See Time Warner Entertainment Co., L.P. v. F.C.C., 56 F.3d 151, 189 (D.C. Cir. 1995) (Congress was not "blind to the existence of’ what agency saw as a problem; "had Congress intended" to address that problem, "it could have done so expressly"); Atlanta College of Medical and Dental

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Careers v. Riley, 987 F.2d 821, 830 (D.C. Cir. 1993) ("the Secretary’s understandable concerns. cannot trump a clear statutory injunction"). 20

The Act reflects compromise: background checks would be made on all firearms transferees, but all records on lawful transferees must be destroyed. Board of Governors, FRS v. Dimension Financial, 474 U.s. 361, 373-74 (1986) notes:

The Attorney General refers to grand purposes, such as detecting unauthorized NICS checks and catching criminals, in Seeking to eviscerate provisions which were passed to prevent governmental invasions of privacy. Yet "it is difficult. . . to pour meaning into a highly specific term by resort to grand purposes." American Mining Congress v. United States E.P.A., 824 F.2d 1177, 1185 (DC Cir. 1987).

The Attorney General argues that the Audit Log is necessary to detect unauthorized NICS use, such as running checks of people other than actual gun transferees, and stealing the identity of others to be approved for a firearm transfer. 63 FR. 58303, 58304. Yet "legislative purpose" must be "defined by reference to the means Congress selected," which an agency cannot disregard in favor

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of what is "at most a tangential concern of the statute." The Business Roundtable v. S.E.C., 905 F. 2d 406, 410 (D.C. Cir. 1990). Moreover, these acts are punishable as crimes under the Gun Control Act, and FFL misuse of NICS is further deterred by the threats of cancellation of inquiry privileges and civil fines. 28 CF.R. § 25.11. Persons not deterred by such penalties will have to be discovered by means consistent with the Act.

The Attorney General has argued that the audit log is necessary to determine whether FBI employees are checking the records accurately. Continuing education and participation by supervisors in actual determinations of eligibility are viable alternatives to unlawful retention of records. One wonders why a manager would wish to determine whether a past approval is incorrect, rather than determining the correctness of the decision when it is made, thereby preventing an unauthorized person from receiving a firearm.

Audit logs were not kept during the five years of the Interim Provision of the Act, which the Attorney General praises as highly successful. 18 U.S.C. § 922(s)(6)(B) commanded chief law enforcement officers ("CLEOs") to check records and then destroy them and their contents within 20 days, leaving no room for an audit log.

In any event, the statutory provisions are clear, and no deference is to the very party against whom Congress sought to enforce privacy protections. The Attorney General should address her policy arguments to Congress, not the Court.

VI. THE ATTORNEY GENERAL CANNOT MAINTAIN AN
"AUDIT LOG" TO CONDUCT WARRANTLESS INSPECTIONS
AND CRIMINAL INVESTIGATIONS OF FFLs AND TRANSFEREES

The Attorney General asserts for the FBI broad criminal enforcement powers involving FFLs and transferees. While chanting the mantra "audit," the actual use of the registry in part is said to be

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the enforcement of Gun Control Act prohibitions on false statements and fraudulent use of identifications. These "audits" can take place only through warrantless inspections of FFL records and intrusive, intimidating interviews with transferees (or their neighbors) selected at random.

The district court recognized "that the Department expects to make uses of the audit log that go beyond quality control and technical support. These other purposes can be characterized as law enforcement purposes . . ." (Mem. Order, App. 27) Congress did not forbid use of "a law enforcement tool that might serendipitously become available through NICS." Id. at 28.

28 C.F.R. § 25.9(b)(2) states in pertinent part:

The commentary to the final rule explains the meaning of the vague terms "use and performance of the NICS" as follows:

63 FR 58303, 58304 (Oct. 30, 1998).

These purposes, however laudatory, must be pursued only through lawful methods. The above investigative techniques necessarily require warrantless inspection of licensee records and are not based on clear statutory grounds, and thus violate of the Fourth Amendment. Laws must be construed to avoid constitutional difficulties. Jones v. United States, 119 S.Ct. 1215, 1222 (1999).

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Enforcement of the Gun Control Act is entrusted to the Department of Treasury, not the FBI. § 103, P.L. 90-6 18, 82 Stat. 1213 (1968) provides: "The administration and enforcement of the amendment made by this title shall be vested in the Secretary of the Treasury." "This title" means Title I of the Gun Control Act, which encompasses Chapter 44 ofTitle 18 U.S.C., §§ 921-930. That includes, of course, § 922(t).

§ 922(t)(1) and (2) delegate to the NICS the narrow duties of conducting background checks and communicating approvals or disapprovals to licensees. Otherwise, the administration and enforcement of § 922(t) lies with the Secretary of the Treasury. This is exemplified in § 922(t)(5), which provides that if an FFL knowingly transfers a firearm without contacting NICS, and if NICS was operating and a check would have revealed that the transfer was unlawful, the Secretary may suspend or revoke the license and impose a civil fine.

The criminal conduct the Attorney General proposes to investigate is subject to the enforcement power of the Secretary, not the Attorney General. Such crimes include 18 U.S.C. § 922(a)(6) (unlawful to make a false statement or to exhibit a false identification to a licensee in connection with the acquisition of a firearm) and § 924(a)(1)(A) (false statements regarding information required to be kept in a licensee’s records). A transferee must execute a Form 4473, which requires personal information and certification that such person may lawfully receive a firearm. 27 C.F.R. § 178.124(c)(1)-(3).

The other area of criminal investigation the Attorney General wishes to conduct under the "audit’ rubric concerns FFLs. § 922(m) makes it a crime for an FFL "knowingly to make any false entry in . . . any record which he is required to keep pursuant to section 923 of this chapter or regulations promulgated thereunder." The regulations, in turn, provide that the FFL shall verify the

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identity of a transferee by examining an identification document, shall record NICS information on the Form 4473, and shall sign the form "if the licensee does not know or have reasonable cause to believe that the transferee is disqualified by law from receiving the firearm . •" 27 C.F.R. § 178. 124(c)(3)-(5). The Attorney General claims the need for the FBI to "audit" FFLs to detect unauthorized inquiries and ensure that the transferee supplied the same information to the FFL that the licensee supplied to NICS. These offenses are subject to the enforcement power of the Secretary, not the FBI.

Moreover, to the extent an FFL violates a duty imposed by the Act, § 924(a)(5) punishes whoever knowingly violates § 922(t). Thus, the "audit" (i.e., criminal investigation) of FFLs tp be conducted by the FBI is a matter delegated to the Secretary of the Treasury.

The means by which the FBI would "audit" FFLs— the inspection of records of firearms transfers— is a matter over which the FBI has no authority. Inspection of FFL records is exclusively delegated to the Secretary of Treasury under well defined, narrow statutory and regulatory provisions intended to comply with the Fourth Amendment.

18 U.S.C. § 923(g)(1)(A) provides that FFLs shall keep such records of firearm transfers as the Secretary may prescribe by regulation, but only to the extent such records are "expressly required by this section." If the Secretary has reasonable cause to believe the Act has been violated and evidence may be found at an FFL’s premises, he may obtain a warrant from a federal magistrate authorizing entry of the premises during business hours to inspect the required records and firearms inventory The FBI has no such power, despite the Attorney General’s assertion that the "audit log" will be used to investigate FFLs to determine if they have falsified records.

The FBI has no power to conduct any warrantless inspection of FFL records. § 923(g)(1)(B)

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empowers the Secretary to inspect an FFL’s inventory and records without such reasonable cause or warrant in the course of a criminal investigation of a person other than the FFL, for ensuring compliance with record keeping requirements (but not more than once every 12 months), or to determine the disposition of a firearm in "a bona tide criminal investigation." Provision is further made in § 923(g)(7) for the Secretary to obtain information from licensees on firearms being traced in a bona tide criminal investigation. Again, the FBI has no such power.

BATF’s inspection powers under the pre-1986 version of § 923(g) were upheld as consistent with the Fourth Amendment in United States v. Biswell, 406 U.S. 311 (1972). This was only because, unlike the Attorney General’s asserted power here, the statute specifically authorized and defined the extent of the search. "In the context of a regulatory inspection system of business premises that is carefully limited in time, place and scope, the legality of the search depends not on consent but on the authority of a valid statute." Id. at 315. The law here met the test. "The dealer is not left to wonder about the purposes of the inspector or the limits of his task. . . The inspection may proceed without a warrant where specifically authorized by statute." Id. at 316-317. Obviously, the "audits" of licensees the FBI asserts the power to conduct here are not "specifically authorized by statute" and such intrusions are illegal under the Fourth Amendment.

Any variation from the strict terms of 𨿳(g) renders an inspection illegal. United States v Limatoc, 807 F.2d 792, 794-95 (9th Cir. 1987) (inspection extended beyond business hours). See Colonnade Corp. v. United States, 397 U.S. 72, 77 (1970) ("Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply."); United States v. Deak-Perera & Co., 566 F Supp. 1398, 1401-02 (D.D.C. 1983) (IRS "audit" of records cannot be used for criminal

Page 39

investigation of third party).

Regarding "audits" to determine whether transferees are really who they say they are, the only conceivable manner in which the "audit log" could serve this purpose would be to select transferees at random and to send Special Agents to knock on their doors or interview their neighbors. Such random surveillance and intimidation of law-abiding citizens is the very kind of activity the privacy provisions at issue here were intended to prevent.

In sum, not only does the Act explicitly prohibit retention of transferee information, but also the "audits" or criminal investigations the Attorney General purports to use this information to conduct run afoul of the Fourth Amendment.

CONCLUSION

The Court should reverse the judgment of the district court, declare as void 28 C.F.R. § 25.9(b) and 25.9(d) to the extent they permit retention of information on lawful transferees beyond the time at which the FFL is informed that he or she may proceed with the transfer, and remand the case for proceedings and an appropriate injunction ordering compliance with the Acts record destruction requirements.

CERTIFICATE OF COMPLIANCE

Compliance with F.R.App.P. 32(a)(7)(B) has been met, in that the brief contains 12,940 words

Respectfully Submitted,
National Rifle Association of America, Inc., et al., Appellants

By Counsel
Stephen P. Halbrook
Richard Gardiner
Attorneys for Appellant.


NOTES

1. See commentary, 63 FR at 58304-05 (social security numbers "will be destroyed with the rest of the transferees’ identifying data at the end of 180 days"). text@note1

2. Plaintiffs reside in States where the NICS is operated by the FBI and in States where it is operated by state agencies. Compl. ¶ 31. text@note2

3. Such persons have falsely certified that they have no legal disabilities, and the information they generate may be used to prosecute them for false statements. See 18 U.S.C. § 922(a)(6), 27 CF R § 178 124(c)(1). text@note3

4. The ordinary meaning of "registration" as a listing of names, addresses, and other personal information is also found in recent laws requiring sex offenders to register with law enforcement agencies E.g., Russell v. Gregoire, 124 F.3d 1079, 1082 (9th Cir. 1997); Roe v. Office of Adult Probation, 125 F.3d 47, 49 (2nd Cir. 1997). text@note4

5. 26 U.S.C. § 5802 provides that "each year, each importer, manufacturer, and dealer in firearms shall register with the Secretary" such person’s name and address. "Registration" in § 5802 includes only personal information and no firearm information, and it lasts only one year. text@note5

6. Record destruction was a premise of even earlier versions. Rep. Nelson urged that the Brady bill eschewed "gun registration" because "the law requires that form be destroyed." 135 Cong Rec H7645 (Sept. 15, 1988). text@note6

7. This was passed "in view of the fact that certain totalitarian and dictatorial nations are engaged in the willful and wholesale destruction of personal rights and liberties." Rept. No. 112 accompany S. 1579J, House Committee on Military Affairs, 77th Cong., 1st Sess., at 2 (August 1941) Rep Paul Kilday, the sponsor, explained: "Remember that registration of firearms is only the first step. It will be followed by other infringements of the right to keep and bear arms until finally the right is gone." 87 Cong.Rec. 7101 (1941). text@note7

8. E.g., P.L. 105-61, 111 Stat. 1272, 1277 (1997) and P.L. 105-277 (Oct. 19, 1997) (prohibiting use of funds for "consolidating or centralizing, within the Department of the Treasury the records, or any portion thereof, of acquisition and disposition of firearms maintained by Federal firearms licensees"). See Treasury’s Proposed Gun Regulations: Hearings before Subcommittee on Crime, House Judiciary Committee, 95th Cong., 2d Sess. (1979). text@note8

9. A person who becomes subject to a law is expected to comply forthwith. See United States v. Ranney, 524 F.2d 830, 833 (7th Cir. 1975) (rejecting argument that 26 U.S.C. § 5842, which provides that a manufacturer "shall identify" a firearm with a serial number, "must allow a reasonable period of time to comply"); United States v. Walsh, 791 F.2d 811, 818 (10th Cir. 1986) (manufacturer must mark serial number at latest "immediately upon completion"). text@note9

10. In denying the preliminary injunction, the court found that this minimal injury was outweighed by "the cost to the government of dismantling what has taken sixty months to put together— the replacement of which would cost $1.5 million and would cause the system to be completely shut down for six months." (Mem. Ord., App.29) Plaintiffs filed affidavits of computer experts who concluded that the program could be easily revised to destroy the identities of lawful transferees. Plaintiffs Exhibits 8, 9, 10, App. 55-82. text@note10

12. 18 U.S.C. § 922(s)(2). That provision was declared unconstitutional under the Tenth Amendment in Printz v. United States, 521 U.S. 98 (1997). text@note12

13. "The Brady bill in no way provides for a system of national gun registration— quite the opposite. In every instance where a handgun sale is approved under Brady, law enforcement officers must destroy the information they’ve been provided within 20 days." 139 Cong.Rec. H9106 (Nov. 10, 1993) (statement of Rep. Roukema). "To help protect the privacy of legal purchasers, it [the Brady bill] requires that a copy of the statement and other records of the transaction be destroyed within 20 days." Id. at H9 117 (statement of Rep. Hughes). text@note13

14. As put by Rep. Solomon, "there is not a dime’s worth of difference between either version." Id. at 10716. More formally, technical amendments are non-substantive. Alabama Power Co. v. Costle, 636 F.2d 323, 401 n. 49 (D.C.Cir. 1979); Mudge Rose Guthrie Alexander & Ferdon v. US. ITC, 846 F.2d 1527, 1529 n. 1 (D.C. Cir. 1988). text@note14

15. An FFL who contacted NICS about a person who was not See king to receive a firearm and who was advised by NICS to proceed with the transfer would have no adverse information on the person. IfNICS advised the FFL not to proceed, the FFL would know only that the person may have a legal disability. That information may be available in far more detail at the local courthouse or, increasingly, on state criminal justice websites. In any event, an FFL who misuses NICS is subject to prosecution and to revocation of privileges to use NICS. text@note15

16. § 103(c) provides that "the Attorney General shall expedite . . (2) the development of hardware and software systems to link State criminal history check systems into the national instant criminal background check system.. . ." § 103(d) provides: "On establishment of the system under this section, the Attorney General shall notify each licensee and the chief law enforcement officer of each State of the existence and purpose of the system and the means to be used to contact the system" Once again, State officers and FFLs would be contacting the national system, but not each other. text@note16

17. See , e.g., 42 U.S.C. § 1408 1(b) ("the Attorney General may deputize State and local law enforcement officers. . . when necessary to undertake investigations" of certain federal crimes); 21 U.S.C. § 878(a) ("any State or local law enforcement officer designated by the Attorney General may" serve warrants and make arrests under the authority of the United States). text@note17

18. "U.S. Const., Art. II, § 2 provides for appointment ofofficers by the President and of inferior officers by the President, the courts, or heads of departments. The President "shall take care that the laws be faithfully executed, and shall commission all the officers of the United States." text@note18

19. Citing United States v. Giordano, 416 U.S. 505, 515 (1974) (power of Attorney General and specially-designated Assistant Attorney General to authorize application to judge for wiretap did not permit Attorney General’s Executive Assistant to apply; purpose of law was to limit surveillance.). text@note19

20. See Synovus Financial Corp. v. Board of Governors, 952 F.2d 426, 437 (D.C. Cir. 1991) (even if the purpose of a law "would be thwarted" unless the agency could regulate certain activity, ‘the language of the amendment limits the Board’s authority and we cannot remove that congressionally imposed limitation"); Public Citizen v. F. T. C., 869 F.2d 1541, 1554 (D.C. Cir. 1989) ("the Commission’s spin on this language would leave the entire statutory scheme at the FTC’s mercy"). text@note20


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