The U.S. Department of Justice has
threatened to criminally prosecute California's top
firearms official over the state's continued use of a
federal databank to hunt down illegal gun users, The
Chronicle has learned.
The threat marks a significant escalation in the war
between California law enforcement and U.S. officials
over gun control and background checks. State
officials said that until John Ashcroft became U.S.
attorney general in 2001, California's use of the
databank was not questioned.
Federal authorities believe the list of convicted felons,
drug dealers, suspected terrorists, spouse beaters,
illegal immigrants and others should only be used to
help gun dealers determine if someone is allowed to
buy a gun, not police investigating other gun-control
violations.
Gun-control advocates say it's part of a pattern.
"At a time when Ashcroft is pushing for maximum
police powers in almost all areas of our lives, the one
exception is guns," said Luis Tolley, Western
regional director with the Brady Campaign to Prevent
Gun Violence. "They are going in the opposite
direction."
Now, in an unprecedented action, the chief of
California's firearms division says he was threatened
with federal action for a criminal violation if California
continues to use the federal database to search for
illegal gun users who violated the law in other states.
"We understood it as a potential criminal action,"
said Randy Rossi, firearms chief for state Attorney
General Bill Lockyer, "and our response back to
them was we understand what you are saying and
we think public safety is paramount and you take
whatever step is necessary."
If U.S. authorities deny access to some of the FBI's
computers, state officials believe they will be forced
to return guns to violent criminals. Thousands of
background checks would be prohibited every year,
state officials said.
THREAT CAME IN CALL
Lockyer's office said the threat of legal retaliation
came from an attorney in the FBI's Criminal Justice
Information Services Division during a conference call
several weeks ago with Rossi and other California
officials.
U.S. Sen. Dianne Feinstein, D-Calif., has requested
an explanation from FBI Director Robert Mueller on
what she called a restrictive interpretation of the law
that overturns a "long-standing history of conducting
such checks."
The FBI wrote back acknowledging there were
differing opinions and promised a further review by
U.S. Department of Justice attorneys. Spokesmen
for Ashcroft, who controls the FBI, did not return a
call seeking comment.
The central dispute is over California's use of the
National Instant Criminal Background Check System,
or NICS. The computer system was installed in 1998
to allow firearms dealers to check, supposedly within
30 seconds, whether someone is prohibited from
owning a gun.
The state uses the system to conduct background
checks for the gun dealers but also to determine if a
confiscated weapon should be returned or if someone
has a large number of illegally owned firearms.
California has its own databank of people prohibited
from owning guns. But law enforcement also checks
NICS to see if a suspect has legal problems in other
states. Lockyer's office checks the NICS nationwide
system about 5,000 times a year on behalf of police,
sheriffs and their own investigators.
DATA FROM OTHER STATES
A suspect may be clear in California but convicted of
offenses in another state or federal court, but law
enforcement would not find that out in many cases,
gun-control advocates and state officials fear.
"There needs to be one central depository of felonies,
of people who are prohibited, the mentally disturbed
and the like," said Tolley with the Brady Campaign.
California officials believe Ashcroft and the FBI are
intent on scuttling a new state law that allows
Lockyer to investigate people who may illegally have
large stores of guns that are being undetected.
The so-called armed and prohibited law targets
people recently rejected for gun ownership during a
background check because they have a criminal
record or arrest.
Rather than stopping there, Lockyer's office is using
a newly created state database and three separate
federal databases to look for past gun purchases in
other states -- and then going after those guns.
OFF-LIMITS TO STATE
Ashcroft's office has told Lockyer that all three
federal databases -- NICS,
the National Crime Information Center and the
Interstate Identification Index -- are off-limits to his
agents if they are using them for the armed and
prohibited program, state officials said.
For regular criminal background checks outside of
the armed and prohibited program, federal authorities
are allowing California access to two of the
databases. But they want to deny Lockyer's office
access to NICS, unless the state is making a
background check for a gun dealer or pawn shop.
State authorities say they like using the more
convenient NICS system because it contains all the
information from the two other criminal databases
under federal control, as well as unique information
that other databanks do not track.
The NICS-only information includes the names of
illegal immigrants, possible terrorists, people
classified as mental defectives or who have
renounced their citizenship, people dishonorably
discharged from the military, and convicted drug
addicts or dealers.
PUSHING POLITICAL POINT
Gun-rights supporters believe Lockyer, a Democrat
who plans to run for California governor in 2006, is
pushing the issue to make a political point and
highlight the differences between the Bush
administration and his own record on gun control.
The National Rifle Association said the NICS
databank appears clearly designed for use by gun
dealers, not for police investigating crimes. The other
databanks, they said, can be used to track down
criminal records in other states.
"It seems to me that they are trying to make this into
a political issue," said Andrew Arulanandam, NRA
spokesman.
Georgia officials say they also have been threatened
by federal authorities over interpretation of U.S. law
concerning criminal background checks. Georgia
was denying gun purchases to people arrested for
crimes but not charged or convicted.
In a letter last year to the Georgia Bureau of
Investigation, the FBI warned that the 1993 Brady
Handgun Violence Protection Act and Georgia law do
not allow "naked arrests" without an indictment or
conviction to be used to deny a gun purchase. The
FBI said it was "very interested in the status of any
corrective action."
Georgia complied with the FBI, and the number of
firearms denied to suspected felons dropped
significantly. The Atlanta Journal-Constitution
estimated that every day an average of 17 or 18
people facing felony charges now are given
permission to buy a gun in Georgia.
"We viewed it as a threat," John Bankhead,
spokesman for the Georgia Bureau of Investigation,
said about the FBI's letter. "We had done this for six
years without an issue until the new administration
came in, and they pulled this on us."
E-mail Robert Salladay at
rsalladay@sfchronicle.com.
sfgate.com |
