Gun checks may violate federal law

[ericire12]

http://www.delawareonline.com/article/20081130/NEWS01/811300370

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."

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."

[PegLeg45]

These people need to file a class action lawsuit, if possible (don't know the minimum # needed).

[long762range]

This is from Nov 30,2008.  Alittle late to be news isn't it?  How about an update instead?

[tombogan03884]

It was posted back then

[fightingquaker13]

It was posted back then

Even if it wasn't, better late than never, its news to me. Its also an example of what happens when LE is given too much discretion. Did he take Prozac? How about Rogaine, could be male pattern baldness rage to worry about. Viagra? We all know thats just a bunch Freudian issues waiting to happen.    Basically, unless there are serious phsych issues, your medical records should be left alone. This just gives the state an excuse to say no.
FQ13
PS In terms of the woman whose husband was on the mental health list and she was DQd, does that mean if I take care of my mother with dementia or have a small child that I can't own a gun?

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