United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. Chief Judge United States District Court
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.
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. ECF No. 3.
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.
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.
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.
Background Check Procedure Under the Brady Act
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).
back end, the NICS Operations Center 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. Id. at (c)(1)(iv)(B).
of Records Related to NICS Background Checks
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.
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).
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).
Checks Involving Terrorist Watch List Records
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),
the Attorney General established the Terrorist Screening
Center (“TSC”). 49 C.F.R. § 1560.3 (2008).