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