November 30, 2008
Gun checks may violate federal law
Secret 'superchecks' let state police look at mental health records
By LEE WILLIAMS
The News Journal
The Delaware State Police have been conducting secret background checks of some gun owners since 2001, a process known as "superchecks" that may violate federal law.
The checks have resulted in confiscation of weapons, some for legitimate reasons, but have subjected many citizens to a search of mental health records that in most cases police would be unable to access.
In Delaware, when someone attempts to purchase a pistol or rifle, he or she must first sign a consent form authorizing a criminal and mental health check by the state Firearms Transaction Approval Program.
These background checks are initiated when a gun dealer calls the firearms unit seeking approval to sell a weapon.
Employees of FTAP conduct about 10,000 background checks a year using computers that link to criminal and court databases and a mental health database maintained by the Delaware Department of Health and Social Services.
Through a request made under the state Freedom of Information Act, The News Journal obtained the results of nearly 4,000 background checks conducted by FTAP from 1998 to 2008 in which gun purchases were denied by state police. The state must destroy records of approved gun purchases within 60 days under a law designed to prevent agencies from compiling lists of gun owners.
The FTAP program was created by lawmakers, and funded by taxpayers, to aid licensed gun dealers, but The News Journal found that more than 10 percent of background checks denied by FTAP were requested by state troopers, not by gun dealers attempting to authorize a legal sale.
None of their superchecks involved gun sales and none of the people checked by state police had signed a written consent form. But all the superchecks, state police said, were gun-related.
Because FTAP checks of legal gun ownership are destroyed, it's impossible to tell from the data how many superchecks state police routinely conduct. A DHSS spokesman said his agency does not keep a record of the number of times FTAP employees have accessed the state's mental health database.
"Basically, it's up to the trooper's discretion," said State Police Capt. Galen M. Purcell, director of the State Bureau of Identification. "If they pull someone over and if there are firearms in the car, or they want to make sure they're not prohibited, they may call the FTAP."
Purcell described the superchecks as "one-stop shopping."
"They hit all appropriate databases; criminal history, Department of Motor Vehicles, and it's also linked to DHSS," he said.
Drewry Fennell, executive director of the American Civil Liberties Union of Delaware, said that in the context of federal law, someone's mental health history is surrounded by "robust protections."
"There's a clear directive that they're not supposed to be used for general law enforcement purposes," Fennell said. "There are a couple of exceptions in the regulations, but there is no exception to support a general law enforcement query."
Federal law requires the U.S. Department of Justice to work with police and the mental health community to establish safeguards to protect the privacy of mental health information contained in the background-check database.
According to guidance published by the Justice Department, inquiries of the system "for general law enforcement purposes are not permitted under the regulations."
Ron Honberg is national director of policy and legal affairs for the National Association of Mental Illness, the country's largest advocacy organization for people with mental illness.
Superchecks, Honberg said, are "excessive and unnecessary."
"It sounds like a potential abuse of authority," he said. "It creates a jeopardy that this type of information could be used for all sorts of purposes."
Honberg said NAMI became concerned when background checks were debated in Congress.
"It was something we were really worried about. There were assurances the records would only be used for background check purposes," he said. "Police have legitimate reasons to find out if a person is authorized to have a gun or not, but here it seems wholly unnecessary for police to have access to these databases. They have other ways to find it out."
In a letter e-mailed to The News Journal, State Police Superintendent Col. Thomas Mac Leish said he wanted to "underscore" two points made by Purcell "regarding the standard practice of a 'supercheck' as it pertains to officers in the field and at the troop level."
Mac Leish stressed that superchecks are used to return firearms that may have been seized after a Protection From Abuse order has expired, "or if an officer encounters a person with a firearm and needs to ensure that person is not prohibited."
"Again, these are not in any way random checks of someone's right to possess or bare [sic] arms," Mac Leish wrote.
Even though guns have been seized after a supercheck, Purcell said, he doesn't believe the system contributes to weapons confiscation. "I believe if a person is prohibited by statute, it's a resource police officers have to see if someone is prohibited."
The firearms unit was established in the late 1990s to field calls from gun dealers. Many states created similar systems after Congress passed the Brady Act in 1993, which required background checks and other gun-control measures.
Since 1998, FTAP checks have proven an effective deterrent when used in conjunction with firearms purchases. More than 1,400 people with felony convictions have been stopped from purchasing a gun, and hundreds of people with arrest warrants have been caught by the computer review.
But an examination of the data also shows that many purchases were denied for reasons other than those provided in state statute, which prohibits the possession of a gun for residents with a felony conviction, a history of domestic violence or mental imbalance, or a PFA order.
"This certainly contradicts what was presented to the General Assembly as to the purpose of creating the system and why it was funded," said John Thompson, president of the Delaware State Sportsmen's Association, the local affiliate of the National Rifle Association.
Attorney General Beau Biden's office is aware of superchecks, but would not comment on the practice.
"In terms of whether we condone the practice, our response is any additional response would violate attorney-client privilege," said Biden's spokesman, Jason Miller. In Mac Leish's correspondence with The News Journal, he sent a copy to acting Attorney General Richard Gebelein, who is running the office while Biden is in Iraq.
The state police FTAP unit is the subject of two internal investigations, ordered after The News Journal revealed last month that the unit stopped 81-year-old Alvina Vansickle from buying a .22-caliber pistol for self-defense because she was too old, and a woman, and that FTAP was not routinely destroying records of legal purchases within 60 days, as required.
With her spotless background, Vansickle should have passed the background check when she tried to buy a Taurus revolver from Charlie Steele's Lewes gun shop last August.
"I believe there was caution taken on behalf of the call taker," Mac Leish said at the time. "It was done without malice." The firearms records, which raised the ire of the NRA, were purged, he said, and Vansickle's purchase was eventually approved.
When the firearms unit was created, the debate in the House was "strictly about purchases, not enforcement," said House Minority Leader Richard C. Cathcart, R-Middletown. "It seems to me this violates -- at a minimum -- the intent of the legislation."
Cathcart, who received an "A+" rating from the NRA before his recent re-election, said the supercheck process needs a quick statutorial fix.
"Obviously, there is a right to bear arms, but the way this is being applied, basically they're saying it's a privilege, and they have a right to take away that privilege from people," Cathcart said. "I have a huge problem with this."
House Majority Leader Peter C. Schwartzkopf, D-Rehoboth Beach, a retired state police captain who received an "F" grade from the NRA, doesn't understand why troopers need to check gun owners through the firearms unit.
"That's wrong," he said. "I don't understand that process because a trooper or a police officer has access to a computer with the same capability as the firearms unit."
Troopers in Maryland and Pennsylvania do not routinely check firearms owners through their state-run firearms approval systems.
In Pennsylvania, the process is known as PICS -- Pennsylvania Instant Check System.
"We wouldn't be calling PICS," Pennsylvania State Police spokeswoman Cpl. Linette Quinn said.
"Maryland troopers do not have a database that lists who is and who is not eligible to possess a firearm," Maryland State Police spokeswoman Elena Russo said.
Gov. Ruth Ann Minner was not willing to be interviewed for this story.
Gov.-elect Jack Markell, who was not aware of the supercheck practice, said he supports the rights of law-abiding Delawareans to own firearms for self-defense and sport. Markell campaigned on the need for an assault-weapons ban and other gun-control strategies.
"I have not backed off from any of those positions," he said.
Thompson said the NRA strongly supports keeping firearms out of the hands of persons prohibited from gun ownership, but some of the reasons cited by the firearms unit for denying the weapons purchases raise questions about the legitimacy of the process.
According to the nearly 4,000 denials obtained by the newspaper, most were rejected because of felony convictions or warrants. Some, however, were denied because the purchaser may be prohibited, or for even less-clear reasons, for example:
• "Denied but probably shouldn't have because of the situation. Sgt. [Benjamin] Nefosky [who heads the firearms unit] will look into it further."
• "Husband is on the mental list and currently has the same address; it's possible she could be buying for him."
• "Not sure if this is domestic related or not."
• "Battery charge from 1985 could be domestic related??? must prove otherwise. He was found guilty state of Maryland."
• "Not sure if this pending status meets approval merits."
• "No dispo for out of state charge from 1966, severity unknown."
"We've never established that they can take guns away on mere suspicion," Thompson said. "It violates a fundamental tenet of this country -- innocent until proven guilty."
Purcell defended his firearms unit's work.
"The vast majority are mental and felony," he said. "A lot on there are missing dispositions, which unfortunately is all too common nationwide."
Additional Facts DATABASE
- Delaware firearm purchases denied by state police Firearms Transaction Approval Program
STATE POLICE CAN VIEW RECORDS OF MENTAL PATIENTS
The Department of Health and Social Services maintains a database of all adults who have been involuntarily committed for mental illness in public and private facilities, which would prohibit firearms ownership, Jay Lynch, spokesman for Department of Health and Social Services Secretary Vince Meconi, said in an e-mail.
The database, which includes names, birth dates and Social Security numbers, is provided to the State Bureau of Identification "through a read-only electronic access system."
"State statute makes it clear that no information reported to State Bureau of Identification with respect to patients shall be public record, and such information shall not be released to any person or agency outside of [SBI]," Lynch wrote.
When a patient's data is entered into the admissions system computer, Lynch said, if his identifiers meet the criteria for reporting to the State Bureau of Identification, "the appropriate information is automatically migrated to the SBI reporting system."
"If a client is inaccurately entered as 'involuntary,' this will be immediately available to SBI," Lynch said. "When corrected, it will be immediately removed from the information made available to SBI. If a mistake is made and later corrected, the incorrect information will only be available to SBI for the period of time between the mistake and the correction."
Each hospital, private and public, that accepts involuntary mental commitments is responsible for its own database.
Twice weekly, the Division of Substance Abuse and Mental Health checks to ensure the private hospitals enter the data on a timely basis.
Lynch said DHSS does not track the number of times staff members at SBI view the data.