Some background on background checks
Editor's note: Former OP police officer Brian Slowiak, a member of the gun rights side of the Gun Rights and Responsibilities Committee, recently expressed support "in principle" for universal background checks, but he also submitted a number of questions about how to implement such a system. Former village attorney Ray Heise, a member of the gun responsibilities side of the committee, wrote the following response.
Brian Slowiak's recent questions [OakPark.com] about a universal background check (UBC) system are best answered by the legislators who would design such a system.
The following responses have been written simply to demonstrate that there are reasonable solutions to the host of hypothetical problems suggested by Brian in his questions, and that, yes, universal background checks do make sense in the real world.
The first two sets of questions were addressed in last week's Viewpoints.
Question three (8 parts): Who has access to the information? Why do they need access to the information? Is a search warrant needed? Is there notification to all parties in the transfer that someone is interested in the transaction? Can giving out the information of the transaction be blocked by either party? What are the grievance procedures for any disputes? If a firearm has no serial numbers, must the firearm be engraved with a number? Who pays for that?
Response: The primary purpose for which the federally licensed gun dealer (FLGD) will be required to maintain records on the transfer of firearms is to assist law enforcement in the investigation of crimes involving the use of firearms. A secondary, but legitimate use of the record information is to assist parties with respect to civil liability claims involving the use of a firearm. Law enforcement, therefore, should have access to this information for purposes of investigating crimes involving the use of firearms. Law enforcement should have access for these purposes without the necessity of obtaining a search warrant. Search warrant requirements can, however, be made part of the process. ATF and the State Police would have access to these records, not only for criminal investigations but also to oversee the operation of the UBC system. This access should be direct, without the need for further authorization. The use of these records with regard to civil claims, however, should necessitate the use of subpoenas to access this information for specified and limited purposes.
These records will not be FOIA-able government records. The issuance of subpoenas should provide adequate notice to the owner that someone is interested in that person's ownership and possession of the firearm. The owner will normally be in a position to object to the issuance of the subpoena and seek to have it quashed.
Firearms without serial numbers should be considered illegal contraband, the ownership and possession of which should be illegal. Obviously, the transfer of illegal contraband would be illegal as well. As stated in the response to Question Two, records will need to be maintained by the FLGD for an indefinite period in both primary and back-up systems that can be easily accessed by law enforcement.
Question four (10 parts): What about loaned firearms? I want to loan my Glock to a new police officer. What then? I want my daughter to have my firearm upon my death? Do I pay if my firearm is loaned to a new police officer? Is there a property tax? Will the agency accept copies of original forms? How about transportation of the firearm to and from the transfer site? How do you verify the identity of the person giving and taking the firearm? What about corporate transfers?
Response: See the third paragraph in the response to Question Two with respect to loaned firearms. Loans or transfers to police officers should be recorded through the UBC process but should not require the criminal history or mental health records check that will be normally associated with the UBC. Transfers through an estate should be subject to the UBC process in the same manner as any other transfer. The only difference will be in establishing that the executor or administrator of the estate has the authority to transfer the firearm and that the documentation necessary to establish that authority is maintained as a part of the record. The deceased owner of record should still be identified in the record.
The FLGD will be entitled to recover a fee for fulfilling its obligations under the UBC process with respect to loans of firearms that go beyond the owner simply allowing another qualified person to use his firearm in his presence, irrespective of whether that person is a law enforcement officer or not. The fee should, however, be reduced by virtue of the fact that the criminal and mental health history records checks will not be necessary. The tax laws in the jurisdiction in which the transfer takes place will determine whether or not there will be personal and/or sales taxes associated with the transfer of firearms. Tax issues will not be addressed in a UBC proposal.
Likewise, the laws of the jurisdiction in which the transfer takes place will determine the transportation requirements for any firearm to or from the FLGD transfer site. Photo IDs will be one of the most effective methods of confirming the identity of persons conveying or taking ownership and possession of a firearm. For purposes of law enforcement investigations, finger or thumb prints, as required in Los Angeles, would greatly enhance the ability of law enforcement to identify the participants in the transfer.
Corporations are not susceptible to criminal and mental health records checks or capable of undergoing the training that is required of all firearm owners. For all of these reasons, corporations, as such, should be prohibited from owning firearms.
Question five (8 parts): Which agency will oversee the universal background checks operation? Have you contacted that agency to ascertain if they want the work? How will the records be kept? Where will the records be kept? Where will the backup records be kept? Who will verify each transaction? What is "a timely fashion"?
Response: Legislators, in consultation with their staffs and the various relevant agencies of government, will determine who, ultimately, will be responsible for the administration of the UBC program. The more obvious agencies that would seem to be appropriate would be ATF at the federal level and the State Police at the state level. As both current and former government employees know, such employees, and the agencies in which they work, do not get to pick and choose the tasks for which they are deemed to be accountable.
The determination instead must be: What agency is most capable and best equipped to carry out the assignment at hand?
The location and methodology of such record-keeping is beyond the scope of our proposal and is best left to the legislative staffs and agencies charged with developing rules and regulations for the UBC. The primary responsibility for conducting the UBC transfer process and maintaining the records of that process will be shouldered by the FLGDs under the supervision and control of ATF and the State Police or other similarly situated federal and state agencies. It will be up to the legislators, their staffs and the relevant agencies involved to determine the necessary level of safeguards that will need to be implemented to ensure the integrity of the process.
The benefits and burdens of the UBC process must be weighed in determining what will constitute a "timely" background check. The criminal and mental health record checks will, likely, all be conducted by law enforcement at the request of the FLGD. These computerized records will need to be accessible, efficient and effective at weeding out criminals and the dangerously mentally ill. At the same time, it should minimize the time necessary for legal gun owners and gun purchasers to exercise their constitutionally protected right to acquire and possess firearms.
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