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Robinson v. Sessions

United States District Court, W.D. New York

April 10, 2017

WILLIAM ROBINSON, et al., Plaintiffs,
JEFF B. SESSIONS, Attorney General of the United States, et al., Defendants.


          HON. FRANK P. GERACI, JR. Chief Judge United States District Court


         This is a challenge to the constitutionality of government conduct allegedly taken in the course of conducting background checks pursuant to the Gun Control Act, 18 U.S.C. §§ 921-931 (1968), and the Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993). The Gun Control Act bans certain persons from possessing firearms. See 18 U.S.C. § 922(d)(1)-(9). The Brady Act establishes a national instant criminal background check system (“NICS”) and requiring that federally licensed firearms dealers consult it before transferring firearms to potential purchasers. See Pub. L. No. 103-159.

         Plaintiffs are a collection of individuals and associations who are “outspoken critics against government infringement of Second Amendment and additional civil liberties.” ECF No. 3, ¶ 75. Defendants are the Director of the Federal Bureau of Investigation, the Director of the Terrorist Screening Center, the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Attorney General of the United States.[1] ECF No. 3.

         Plaintiffs allege that, in February 2004, Defendants began searching the Consolidated Terrorist Screening Database (“TSDB”) in the course of conducting NICS background checks. ECF No. 3, ¶ 19. Plaintiffs further allege that, when a potential firearms purchaser matches a person listed in the TSDB, Defendants compile, retain, and disclose the potential purchaser's personal information for counterterrorism purposes. Id. at ¶¶ 24-30. Plaintiffs do not allege that they were denied firearms, that they are listed in TSDB, or that Defendants have compiled, retained, or disclosed their personal information. Rather, Plaintiffs allege that each Plaintiff “has completed” the form that initiates an NICS background check since February 2004 and that each Plaintiff “wants to continue” to purchase firearms through federally licensed dealers. Id. at ¶ 81. Plaintiffs also allege that Defendants' conduct has forced them to choose between their First and Second Amendment rights, id. at ¶ 84, and has branded them as terrorists or potential terrorists. Id. at ¶ 80. Plaintiffs challenge the search of the TSDB and subsequent data collection under the Second Amendment, Procedural and Substantive Due Process, the Fourth Amendment, the Equal Protection Clause, and the Administrative Procedure Act. Id. at ¶¶ 111-38.

         Defendants contend as a threshold matter that Plaintiffs lack standing to bring this challenge in federal court. ECF No. 6-1 at 7-12. Defendants also argue that the lawsuit lacks merit because Plaintiffs fail to plead a cognizable claim under any of their six causes of action. Id. at 12-25. In response, Plaintiffs moved for summary judgment. ECF No. 9-7. For the reasons explained below, the Court finds that Plaintiffs do not have standing to challenge the counterterrorism actions that Defendants take in the course of conducting NICS background checks.


         The Gun Control Act regulates the manufacture and sale of firearms and ammunition. See 18 U.S.C. §§ 921-31. In particular, it prohibits federally licensed firearms dealers from selling firearms to certain categories of individuals, such as any person under 21 or any person convicted of a felony. See, e.g., id. at § 922(b), (d), (g). In 1993, Congress gave greater effect to those prohibitions by enacting the Brady Act. Pub. L. No. 103-159, 107 Stat. 1536. The Brady Act requires federally licensed firearms dealers to initiate criminal background checks to determine whether state or federal law prohibits potential purchasers from purchasing or possessing firearms before selling to them. See Id. at § 103(b). To facilitate those background checks, the Brady Act directed the Attorney General to establish the NICS. See Id. at § 102(a). The Attorney General delegated management of the system to the Federal Bureau of Investigations (“FBI”). See 28 C.F.R. § 25.3 (2015). Accordingly, the NICS is managed by the FBI Criminal Justice Information Services Division's NICS Operations Center. Id.

         NICS Background Check Procedure Under the Brady Act

         An NICS background check proceeds in two stages. On the front end, the dealer collects information from the potential purchaser and provides some of that information to the NICS Operations Center. See 27 C.F.R. § 478.124 (2012). The dealer obtains from each potential purchaser a completed firearms transaction record (“Form 4473”). See id. Form 4473 asks for certain identifying information, such as the purchaser's name, sex, address, date of birth, height, race, and country of citizenship. Id. The dealer then contacts the NICS Operations Center and provides the purchaser's name, sex, date of birth, and state of residence to initiate the background check. See 28 C.F.R. § 27.5(a).

         On the back end, the NICS Operations Center[2] uses the potential purchaser's information to search FBI-maintained databases-such as the NICS index, the National Criminal Information Center's Violent Gang and Terrorist Organization File (“VGTOF”), and the Interstate Identification Index-for signs that the potential purchaser is prohibited from purchasing or possessing firearms. See Id. at § 25.6. If that search produces disqualifying information, the NICS Operations Center informs the dealer that the transaction should be denied. Id. at (c)(1)(iv)(C). If that search produces no signs of disqualifying information, the NICS Operations Center informs the dealer that the transactions may proceed. Id. at (c)(1)(iv)(A). If the search produces information that indicates the potential purchaser might be disqualified from purchasing or possessing a firearm, the NICS Operations Center informs the dealer that the transaction must be delayed pending further research.[3] Id. at (c)(1)(iv)(B).

         Maintenance of Records Related to NICS Background Checks

         These background check procedures produce two types of records: Form 4473 and NICS transaction records. As noted above, Form 4473 contains the potential purchaser's personal information. 27 C.F.R § 478.124(c)(1). It also requires the dealer to record certain transactions details, including the date on which the dealer contacted the NICS Operations Center, the unique number assigned by the NICS Operations Center to the transaction, and the result of the background check. Id. at (c)(3). If the sale of the firearm is completed, the dealer must also record the manufacturer, importer, type, model, caliber, and serial number of the firearm sold. Id. In the case of a completed sale, the dealer is required to keep a copy of the Form 4473 for 20 years. Id. If the sale is not completed, the dealer is only required to keep a copy of the form for five years. Id.

         NICS transaction records include the NICS index and audit log. 28 C.F.R. § 25.9(a)-(b). The index documents transactions that the background check finds would violate state or federal law. Id. at (a). The audit log, which is generated automatically, records certain information about each background check that the NICS Operations Center conducts. Id. That information includes the date and time of the inquiry, the potential purchaser's identifying information, and the unique number assigned to the transaction. Id. While the NICS Operations Center retains the index of transactions that would violate state or federal law indefinitely, the center continuously purges information-other than the unique number and date of each transaction- from the audit log. Id. at (a)-(b). Information regarding denied transactions remains in the audit log for ten years. Id. at (b)(1)(i). Information about delayed transactions remains in the audit log for 90 days. Id. at (b)(1)(ii). The most sensitive information, identifying information connected to approved transactions, is destroyed within 24 hours. Id. at (b)(1)(iii).

         Just as it regulates retention of these records, the Brady Act regulates access to them. The government may access a completed Form 4473 in only three circumstances: during a routine inspection of the dealer, when the dealer goes out of business and is not replaced by a successor, or in the course of a criminal investigation. 18 U.S.C. § 923(g). Similarly, the NICS index may only be accessed for purposes unrelated to NICS background checks when providing information related to issuing a firearm permit, in response to an inquiry from the Bureau of Alcohol, Tobacco, Firearms, and Explosives in connection with a civil or criminal law enforcement activity, or for the purpose of disposing firearms in the possession of a government agency. 28 C.F.R. § 25.6(j). The NICS audit log, however, may only be accessed for administrative purposes, such as analyzing system performance, and to support investigations and inspections of dealers. Id. at § 25.9(b).

         Background Checks Involving Terrorist Watch List Records

         On September 16, 2003, President George W. Bush directed the Attorney General to establish an organization to streamline terrorist watch list records generated and maintained by various federal agencies. Press Release, Office of the Press Secretary, President George W. Bush, Homeland Security Presidential Directive on Integration and Use of Screening Information (Sept. 16, 2003), Accordingly, the Attorney General established the Terrorist Screening Center (“TSC”). 49 C.F.R. § 1560.3 (2008). ...

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