Printed in the USA.
The Gottlieb-Tartaro Report
Issue 048
December, 1998
NICS BACKGROUND CHECK NOT SO INSTANT
The National Instant Check System (NICS), as required, went online November 30, 1998. The system was mandated by the Brady Act to replace the five-day waiting period on purchases of handguns from Federal Firearms License (FFL) holders. The new system applies to all guns.
Most gun owners support instant background checks to keep guns out of the wrong hands: felons, the mentally ill, and other disqualified persons. USA TODAY quoted JOHN SNYDER of the Citizens Committee for the Right to Keep and Bear Arms as saying, "If it works, the instant background check system should ease concerns that criminals can buy firearms from legitimate dealers. Of course that is a big ‘if.’"
Ideally, the FBI’s instant background checks are preferable to waiting periods, which are supposed to be replaced by the new NICS system.
Since we live in a world far from ideal and the FBI is a government agency run by political appointees, we’re devoting a good part of this issue to the question, "how is the new system really doing?"
In a nutshell, NICS has so far created as many problems as solutions.
First, the FBI reported that the NICS system "crashed" on its first day of operation. It went back online quickly, but gun purchases were delayed all over the nation. That sounds like a mere technical glitch, which is only to be expected, but in fact it is loaded with politics and it has legal consequences.
The FBI interprets the Brady statute to mean that if NICS is "not operating," then a three-day waiting period must be observed by dealers, absent any other state or local law.
While it’s true that a three-day waiting period is not as bad as a five-day waiting period, with the CLINTON administration actively pushing to keep a five day "cooling off" period AND the NICS system, how can we be sure that NICS crashes are unintentional?
And with an anti-gun President who has proven himself an expert at defining words to suit his preferences, concerns about what constitutes "not operating" are more than just NICS conspiracy theories or anti-government paranoia.
Next, there’s the question of how long the FBI will retain the records from NICS checks. The FBI originally wanted to keep them for 18 months, but gun owners wanted them not kept at all. Congress specified in the Brady Act no registration of firearms, firearm owners or firearms transactions or dispositions.
Now the FBI says it wants to keep the records for 6 months. That raises a host of issues. A lawsuit challenging the FBl’s intention to keep records on approved NICS checks, rather than destroying them as federal law requires has already been filed by the National Rifle Association.
The NICS system is a watershed in the history of gun rights. Follow with us now as we examine the top stories of how the National Instant Check System worked or failed to work during its first days.
WHO IS YOUR NICS CONTACT?
The first thing gun purchasers discovered about NICS is that not all states are affected the same. The FBI is not the point of contact (POC) for NICS checks in every state. Some state governments have decided to do it for themselves on all firearms, some for handguns only, and some for neither.
This FBI list tells you who your NICS contact is:
States / Territories acting as POC for NICS checks on all firearms purchases:
Arizona 		Georgia	New Jersey		Utah
California 		Hawaii		Pennsylvania		Vermont
Colorado		Illinois 	South Carolina	Virginia
Connecticut 		Nevada	Tennessee		Virgin Islands
Florida
l States acting as the POC for NICS checks on handgun permits/purchases, while FFL holders contact the FBI for NICS checks on long gun purchases:
Indiana 	Michigan 	North Carolina 	Washington
Iowa 		Nebraska 	Oregon 		Wisconsin
Maryland
l States / Territories where FFL holders contact the FBI for all NICS checks:
Alabama	Louisiana 		New Hampshire	South Dakota
Alaska		Maine 			New Mexico		Texas
Arkansas	Massachusetts 	New York		West Virginia
Delaware	Minnesota 		North Dakota		Wyoming
Idaho		Mississippi		Ohio 			Washington DC
Kansas		Missouri 		Oklahoma		Puerto Rico
Kentucky	Montana 		Rhode Island
WHERE THE STARTUP PROBLEMS WERE WORST
Predictably, problems have been concentrated in the 26 states and Puerto Rico where FFL holders are contacting the FBI directly. Using the FBI system, which operates with two telephone centers run by contractor Teletech, a gun dealer calls one of two toll-free numbers and supplies the buyer’s name, sex, race, date of birth, type of firearm purchase, and state of residence.
Not long before the NICS system went online, Deputy Assistant FBI Director DAVID LOESCH said, "If no record is found in a computer check, approval for the sale will be given to the dealer within three minutes."
That didn’t happen.
Nationwide, this was the real first-day picture:
In Holden, Maine, gun dealer RALPH McLEOD said he made 25 calls to the computerized background check system and got constant busy signals.
"Somewhere late morning or early afternoon, the complete system went down. The phones literally wouldn’t answer," said BARRY PERRY of Perry’s Gun Shop in Wendell, N.C, who was checking long gun purchasers.
Realistically, gun dealers say, the best NICS call is adding at least 15 extra minutes to each transaction, some more than an hour. The worst waits simply lose customers, who say "forget it."
At Gary’s Gun Shop in Sioux Falls, S.D., owner GARY SALMEN was planning to put in a third phone line to handle the background checking calls.
The problem of additional overhead costs to pay for extra lines and extra people calling NICS hit many gun dealers by surprise.
THE RUSH TO BEAT THE REGULATIONS GETS CONFUSING
Every time a new law regulating firearms is passed, buyers throng to gun stores before the new rules take effect. For about a month before the NICS system went online, the usual "beat-the-regulations" gun-buying rush hit the whole nation.
The buyers’ motive this time was apparently to avoid having their firearm purchases pop up in a computer database at the FBI. Long guns were particularly popular purchases because this is the first time they have been subject to background checks.
Rifles and shotguns are rarely used in the commission of crimes, so the need for background checks is minimal to non-existent.
The Brady Act changed all that.
In Bellevue, Washington, Lonnie Lamberson, manager of Wade’s Eastside Guns, one of the biggest firearms dealers in the state, predicted, "Lots of guys just won’t buy guns anymore. It’s not a matter that they’re criminals. They just see it as an invasion of their privacy."
Gun dealers see NICS as a morass of confusing red tape.
Washington is significant because the state has its own five-day waiting period and background checks on handgun purchasers. 19 states have laws mandating various waiting periods. Those regulations will remain in place in Washington state - in addition to the new federal instant-check system.
Now, the gun-regulation bureaucracy in Washington state looks like this:
The state will require local police to continue running their own separate background checks on handgun buyers, using databases from the State Patrol and the FBI. Customers must wait five days for approval.
The FBI, meanwhile, runs background checks on purchases of rifles, shotguns and some handguns. It will share the names of the rejects with the Bureau of Alcohol, Tobacco and Firearms for possible investigation.
The FBI says if it doesn’t respond within three days the purchase is automatically approved, although that is superseded on handguns by the state’s five-day rule.
Purchases will be denied to convicted felons, drug abusers, spouse abusers and the mentally ill. Fugitives, undocumented immigrants and those with dishonorable discharges from the U.S. military also are ineligible to buy guns.
The privacy issue is more troublesome than the red tape. Gun dealers worry that the real effect of NICS will be less business as customers undergo more and more scrutiny. Purchases from private sellers will grow.
The FBI holds onto records of firearms transaction for up to 18 months "for auditing purposes," to see how the new instant-check system is working and whether it is being abused, said FBI spokesman Paul Bresson. The NRA is suing over such record holding.
INVASION OF PRIVACY EMERGES AS THE BIGGEST ISSUE
What does it all mean? Even with statutory protections, there are major concerns about the privacy of medical records relating to mental health. Some states, including Colorado and Illinois, restrict access to medical records that show whether someone was committed to a psychiatric institution.
While the mentally ill are barred from owning guns, not everyone who has been in a mental institution is disqualified. Misuse or revelation of mental health records checked by NICS could destroy the lives of innocent people.
Gun control advocates complain that 28 states do not have access to mental health records such as involuntary, court-ordered commitments because of privacy issues. A misdemeanor domestic abuse conviction is enough to disqualify a gun buyer under federal law, but eight states do not have those laws. And three states do not keep track of court-ordered protection or restraining orders that would also make someone ineligible to purchase a gun under federal law. Where does the right to privacy give way to fear for public safety?
The battle over NICS is just beginning, and privacy is the front line.
DESTROYING GUN MANUFACTURERS WITH SYSTEMATIC COURT STRATEGIES
Firearms industry officials, just coming off a victory in the DIX lawsuit against Beretta U.S.A., say they anticipate a long period of fierce municipal litigation modeled on suits filed against cigarette makers by most states.
First, the City of New Orleans, Louisiana, filed a product liability case against a bevy of gun makers, seeking millions in damages.
Then, two weeks later, Chicago filed a public nuisance lawsuit against 16 gun stores and distributors and 22 manufacturers, including Smith & Wesson Corp., Glock Inc., Colt’s Manufacturing Co., Sturm, Ruger & Co. and Beretta U.S.A. Corp, seeking millions in damages.
Philadelphia and Los Angeles are considering similar legal actions. Three New York City Council members have proposed that the city file a lawsuit against all the nation’s gun manufacturers, trying to recoup millions of dollars spent treating shooting victims.
This flurry of legal action is not a coincidence. It is part of a calculated effort by various anti-gun factions to swamp gun makers with lawsuits using a barrage of strategies in hopes that one of them will hit the mark.
The Chicago suit adopts an approach urged by DAVID KAIRYS, a law professor at Temple University in Philadelphia, who argues that gun manufacturers have been "flooding" certain areas with guns that inevitably are used in crime, and thus industry unjustifiably disrupts public safety and health.
Prof. KAIRYS is serving as a consultant to Chicago, which made his "public nuisance" theory the centerpiece of its suit, demanding that gun manufacturers and distributors reimburse an estimated $433 million spent in the past five years on police, emergency medical care and other services related to gun violence.
Prof. KAIRYS said, "We are entering a period when a lot of strategies will be tried by a lot of cities shaped by the particular laws in various states and the factual situations." He added that he is consulting with other municipalities planning to sue, although he won’t identify them.
The Chicago suit uses the fact that the city has some of the country’s most restrictive gun laws--a ban on handgun sales and private ownership of handguns unless registered before March 30, 1982--but has big gun crime.
The suit alleges that manufacturers "knowingly oversupply" gun stores just outside Chicago’s borders with far more weapons than the lawful gun market can absorb intending that many of those guns will spill over into the city’s black market.
Chicago Mayor Richard Daley said in a statement, "Gun manufacturers and retailers know exactly what they’re doing" when they "refuse to impose even the most basic controls."
Robert Ricker, director of governmental affairs for the American Shooting Sports Council, called the spread of municipal suits "litigation tyranny." He warned that "smaller companies don’t have the financial wherewithal to cope with 50 lawsuits" and could fold just trying to defend themselves.
The industry plans a determined counterattack and has already asked 17 major law firms to make proposals for defending the New Orleans suit. These include: Wildman, Harrold, Allen & Dixon in Chicago; Procter & Hoar in Boston; Latham & Watkins of Los Angeles; and Goodwin, Pillsbury, Madison & Sutro in San Francisco.
City officials, says Mr. RICKER. "aren’t concerned with the viability of their legal theories, but are just throwing everything up there to see if anything sticks."
He points out that in what is apparently the only reported case in which the public-nuisance idea was used against a gun maker a federal judge in Chicago last year dismissed a suit brought on behalf of individual handgun victims. In such cases, federal courts apply the law of the relevant state, and the judge said that he didn’t want to allow a suit based on "a new theory of nuisance liability" when Illinois courts hadn’t yet addressed the issue.
CELEBRITY HUNTER
Country Celebrity Irlene Mandrell, youngest of The Mandrell Sisters, recently went on her first big game hunting trip at Krooked River Ranch Outfitters in Haskell, Texas. Irlene was accompanied by long time friend and fan Jim Burrow, who had purchased the chance to hunt with Irlene at a charity auction held to benefit Wish Upon A Star. Krooked River was ranked one of the top trophy buck outfitters in Texas for 1997.
Irlene and Jim both took trophy bucks on the 100,000 acre ranch. Irlene’s buck was a 6-year-old 8 point. The buck was shot at approximately 60 yards.
Irlene MANDRELL is best known for her roles as a comedian and musical performer on The Mandrell Sisters Show, Hee-Haw, and decades of live shows, most recently at the LOUISE MANDRELL theater in Pigeon Forge, TN.
Irlene has been active in the outdoors industry promoting safe and fun firearms ownership and conservation. Irlene is the national spokesperson for the National Wild Turkey Federation’s Women in the Outdoors program. Irlene was recently very active in Ohio with Quail Unlimited to stop the state from suspending dove hunting through a public referendum. The measure was voted down 2 to 1.
Kirk Dooms accompanied Irlene and filmed the hunt for an upcoming episode of his TV program, Show-Me Outdoor Adventures.
SMOKERS BLAST HESTON
CHARLTON HESTON may be a hero to gun owners, but some of his erstwhile friends in the smoking community can’t understand why he backed a California ballot initiative increasing cigarette prices by 50 cents a pack.
At the request of his Hollywood friend, director ROB REINER, HESTON taped a radio spot endorsing the price increase. That annoyed a lot of his former friends.
TOM HUMBER, president of the National Smokers Alliance, fired off an angry letter to 250 conservative groups against HESTON, who heads the NRA.
He wrote:
"Proponents of the Nanny State will stop at nothing to achieve their vision of a collectivist utopia, in which there will be no tobacco, no guns, no alcohol, no Twinkles, no fur coats, no perfume, no peanuts on planes," Humber said in the letter mailed to groups including the National Taxpayers Union, the Eagle Forum and the Firearms Coalition of Colorado.
"Whether Mr. Heston recognizes it or not, it is becoming abundantly clear that the legal and political tactics used against tobacco are increasingly being used against guns," Humber wrote, noting that several prominent anti-cigarette leaders are also active in the gun-control movement.
Humber, a former tobacco industry executive, predicted some of the estimated $700 million generated by the price increase each year will "and its way into gun control efforts, not to mention other liberal causes."
WISDOM FROM THE ORANGE COUNTY REGISTER
We give our Parting Shot to this editorial comment from California’s Orange County Register. It was headlined, "Chicago fires an assault weapon." Here is the full text:
"The city’s lawsuit against gun manufacturers takes dead aim on constitutional processes.
"We knew it wouldn’t be long before politicians, smelling victory in state and federal lawsuits against tobacco manufacturers, would target other legal products. The lawsuit filed Thursday by Chicago officials against 38 gun manufacturers, dealers and distributors clearly shows which industry will be the nation’s next villain du jour.
"Amid much hype about the greed of gun makers, Chicago Mayor Richard Daley announced the suit, which seeks $433 million in expenses the city and Cook County supposedly incurred since 1994 as the result of gun violence. Officials contend the gun industry banned from selling handguns within the city limits saturates outlying suburbs-knowing that Chicago’s gang members and criminals will go there to buy them.
"The 74-page lawsuit "is written as a novel for the purpose of anti-handgun propaganda," Bruce Jennings told us; he’s the distributor of Bryco Arms, a Costa Mesa gun manufacturer named in the Chicago lawsuit. As Mr. Jennings sees it, the Chicago action and a lawsuit filed against gun makers by New Orleans two weeks ago are intended to bankrupt legitimate companies by imposing on them massive legal costs. Bryco’s litigation costs in battling such suits, he said, already are enormous.
"Calling the lawsuit ‘tremendously malicious,’ New York University Professor David Kopel told us that Illinois already requires gun buyers to have an identification number with their address on it. It is unlikely, then, for the gun companies to have targeted Chicago criminals because the city’s residents could not gain the necessary paperwork to buy firearms from these dealers.
"According to the lawsuit, police officers posing as inner-city gang-bangers were able to purchase weapons even though they made comments to dealers about using the guns for gang-related activities.
"If that’s so, then the authorities could have charged the stores under existing laws, on a case-by-case basis, Mr. Kopel said. But that’s not what this legal action is about. Because the Illinois Legislature refused to pass the kinds restrictive gun control laws that Mayor Daley supports, the city is trying an "end run around the democratic process," he explained.
"Larry Amn, president of the Claremont Institute in Claremont, agrees that this legal strategy is ‘an attempt to circumvent the Constitution and achieve a form of regulation by means that the Constitution does not permit.’
"Northwestern University Law School professor Daniel Polsby calls the lawsuits a ‘racket with legal niceties beside the point.’ He said Mayor Daley is in cahoots with other cities, many of which are planning similar lawsuits, and gun-control groups to drive many gun manufacturers and distributors out of business. The case is based on the flimsiest evidence, he told us. The gun dealers were ‘damned if they do, damned if they don’t.’ Had they not sold firearms to undercover police posing as gang members they could have faced discrimination lawsuits.
"As troubling as government lawsuits against tobacco companies may be, these legal attacks on the firearms industry are even worse. That’s because tobacco has few positive attributes, whereas firearms have many important benefits, John Lott Jr. told us; he’s a fellow at the University of Chicago Law School and author of More Guns, Less Crime.
"Various national surveys have shown that individuals use guns to protect themselves more than 2 million times each year compared to the 112-million times they are used annually in the commission of a crime, he said. By focusing only on the costs of guns and not their benefits, Chicago and other cities pursuing anti-gun lawsuits are dooming many of their citizens to become future crime victims.
"The libertarian and conservative scholars we interviewed approach the issue from different backgrounds, but they agree on this point: The Chicago lawsuit is a cynical attempt to achieve through the tort system what gun-control advocates could not achieve through state legislatures. We’re left to wonder what industry will be targeted next."
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