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Step One of the Marzzarella Framework
1. Prohibited persons due to mental defectiveness presumptively lack Second Amendment Rights. Heller holds that “longstanding prohibitions on the possession of firearms by mentally defective” are “presumptively lawful.” 554 U.S. at 626 & 627 n.26. Traditionally, the “mentally defective” are people who have been adjudicated by a lawful authority to be unable to manage their affairs or committed to a mental institution by a judge. “Most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens.’” United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010) People who have committed or are likely to commit “violent actions” in which violence (actual or attempted) is an core element to formal adjudicate someone on the grounds of dangerousness to others and is also grounds for formal commitment to a hospital. This per Heller undoubtedly qualifies that person as an “unvirtuous citizen” who lacks Second Amendment rights. United States v. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011) (recognizes the common-law tradition that the right to bear arms is limited to peaceable or virtuous citizens). This category of “unvirtuous citizens” is therefore broader than violent criminals; it covers any person who has committed a violent action, even if it is in the course of an acute mental illness. Since both Heller, Bruen, and Rahimi allow for historical analogues that are not solely "deadringers", one barrier to overcoming this tradition of barring dangerous individuals is a ‘highly influential’ ‘precursor’ to the Second Amendment, the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents.. That report “asserted that citizens have a personal right to bear arms ‘unless for crimes committed, or real danger of public injury.’” The Gun Control Act and Brady Act both emphasize the importance and risk of mental illness, firearm ownership, and the increased risk of public injury from someone "snapping". [Citation] Marzzarella’s first step focuses on the probability of violent recidivism and is inconsistent with the true justification for the disarmament of people who commit serious crimes: they are “unvirtuous.” Barton suggests two ways to satisfy this second hurdle of step one: the first is that a challenger may show that he never lost his Second Amendment rights because he was not convicted of a serious crime; the second is that a challenger who once lost his Second Amendment rights by committing a serious crime may regain them if his “crime of conviction is decades-old” and a court finds that he “poses no continuing threat to society.” 633 F.3d at 174.
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Proper Findings per the NIAA § 105(a)(2):
In granting relief, the lawful authority administering the state level relief from disabilities must issue 2 findings: 1) the applicant will not be likely to act in a manner dangerous to public safety; and 2) granting the relief will not be contrary to the public interest. When CA courts make a finding they must document where there is substantial evidence that supports a finding that appellant would be likely to use firearms in a safe and lawful manner (§ 8103 subd (6)) and that return of the firearms to appellant would not endanger appellant or others. (§ 8102 subd (h)). These findings implicitly implicate public interest, Code of Civil Procedure § 425.16 subd (e)(3) requires a showing the speaker made the statements in connection with an issue of “public interest.” Public interest is a higher standard to meet than the other two. Evaluating what qualifies as an issue of “public interest” requires consideration of the public/private distinction, a changing standard. (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621; Woodhill Ventures, LLC v. Yang (2021) 68 Cal.App.5th 624, 631. In Rand, the Court laid out three categories of statements or conduct that qualify as “public interest”: 1. Conduct that concern a person or entity [state of CA] vis a vis the public perception; 2. Conduct that could directly affect a large number of persons beyond the direct participants; and 3. Conduct involving a topic of widespread interest. The definition of “public interest” shall include not only governmental matters, but also private conduct that impacts a broad segment of society or that affects a community in a manner similar to the actions and laws of a governmental entity.” Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479. Firearms are such an activity that tangentially links to restoration of rights to bear arms that have the potential, in the wrong hands, to seriously impact the lives of many individuals. Another way of phrasing such is saying that restoring firearms to mentally ill persons is an activity/conduct that effects large numbers of people beyond the direct participants (the plaintiffs or defendants), and keeping firearms out of the hands of mentally ill and felons is both a state and federal widespread public interest per Heller. In cases where the issue is not of great interest to the public at large, but rather to a limited, but definable small class of persons the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy (federal and state gun legislation relating to prohibited persons), and be of such a nature that it warrants protection by state or federal statute that embodies the public policy of encouraging participation in matters of public significance[?]. The state could easily contends allowing mentally adjudicated persons intricately involves an issue of high priority public interest because CA DOJ has long fought gun violence and used prohibitions to safeguard the public from potentially dangerous persons. CA would deem that mentally defective persons who regained their rights, a source of fear to the public and a shortcoming of the state akin to the Charleston loophole. Next, the state can assert both it and hospitals are in the public eye when it comes to gun control protests and the mentally ill. By allowing some "mentally ill" to get their rights through this relief from disabilities program will create an "arbitrary" system that Giffords would deem a dangerous loophole. Akin to how many gun control activists decried Trump repealing the VA disabilities rep payee automatic NICS entry rule, groups would take CA to task for allow dangerous adjudicated mentally ill to get their guns back through the court system no matter what evidentiary hurdles need to be crossed before a court can grant their p petition for relief.  18 U.S.C.S. § 922(g) and CA state law prevents a court from ordering the sale or other transfer of a prohibited person's guns to someone willing to give them access to them or to accede to their later requests to gain access for future use. In such a case, the prohibited would have control over the guns, even though legally person maintained physical custody. This falls under constructive possession which is also foreclosed under federal law. The concept behind constructive possession is designed to preclude just such a loophole. By ensuring the law addresses "puppets" and "puppeteers". A prohibited person cannot evade the strictures of § 922(g) by arranging a "sham" transfer that leaves him effectively still in control of his guns. And because of the import of the Brady Act, a court may no more approve such a transfer than order the return of the firearms to the felon himself. Henderson v. United States (2015) 575 U.S. 622, 622 [135 S.Ct. 1780, 1781, 191 L.Ed.2d 874, 874].
Possession may be imputed when the firearm is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the prohibited person and another non prohibited person. The person need not be found in actual possession like with the firearm in his hands or house. If he can knowingly wield power and has any intention at any given time to exercise dominion or control over it, either directly or through another person that shall suffice. A court when presented with a motion to transfer a newly prohibited person's firearms to a third party may only approve the transfer that comports with 18 U.S.C.S. § 922(g) if and only if, that disposition prevents them from later exercising control over those weapons, so that he could either use them or tell someone else how to do so. Because CA is ranked an "A" from Giffords, it is unlikely the courts will simply "seek certain assurances: by asking the proposed transferee to promise to keep the guns away from the prohibited person, and to acknowledge that allowing him to use them would aid and abet a § 922(g) violation". The CA BOF remains silent as to whether they conduct in person interviews, background checks, or home checks on the proposed transferee to ensure they have no personal connection indicative of whether they would allow the prohibited person to access the firearms later. Precedent has established that states have the sovereign right to protect the general welfare of the people through the exercise of their police power. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 503 (1987). States have a vested interest in the protection of the public thus they are afforded “great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (internal quotations omitted). California has long recognized that regulation of firearms is a proper exercise of that police power, and discretion courts and police maintain over who a transferee may be does not constitute an abuse of power. City of San Diego v. Boggess, 216 Cal. App. 4th 1494, 1505 (2013) Federally speaking, neither Heller nor McDonald are to be interpreted to cast aspersions on the already “presumptively lawful” longstanding regulatory measures upholding “prohibitions on the possession of firearms by felons and the mentally ill”. Transferees fall under such regulations as courts have regularly upheld that is a direct nexus between sham buyers and prohibited persons. Abramski v. United States, 134 S. Ct. 2259, 2267 (2014). Drawing from the legal underpinnings controlling 18 U.S.C § 922(a)(6), the law bars material misrepresentations “in connection with the acquisition,” and not just the purchase, of a firearm. That broader word, acquisition, has direct connection to a transfer from a prohibited person to a friend or relative. As Abramski holds, the law does not focus solely on “legal title” as a legal title can last only for few short moments, until another, the one whom the intended transfer is for takes possession rendering the legal title moot. The background of each person who applies to gain possession of the firearm must be investigated as a "not prohibited" sham transferee is not anymore lawfully allowed to possess the firearm than the prohibited person themselves. So within the clarifying perimeters established by Abramski and Heller, each person who may come into actual or constructive possession of the firearm is material and relevant to the case, and a court is not abusing its discretion or violating the second amendment by conducting such inquiries. Sentencing Guidelines for adjudicated mentally defective or committed to a mental institution found in possession of a firearm affecting interstate commerce
Base offense level 14 applies if the defendant either was a prohibited person at the time of the offense or was convicted of certain firearms transfer offenses. 67 USSG §2K2.1(a)(6). Base offense moves up to a level 20 applies if the offense involved either possession of a “firearm that is described in 26 U.S.C. § 5845(a) (NFA item) or a semiautomatic firearm that is capable of accepting a large capacity magazine and defendant is a prohibited person like 18 U.S.C 922 (g)(4). §2K2.1(b)(2), does not apply to mentally defective persons. The sentencing guideline states the offense level is reduced to 6 if the court finds that the defendant “possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition.” This reduction does not apply if the defendant receives a base offense level premised on the offense involving certain types of firearms or the defendant having certain prior convictions, discussed above (base offense levels 26, 24, 22, 20, 18). This is construed to mean that an adjudicated mentally defective defendant may have their level reduced if their firearm is like a break action rifle that they can show was used only for hunting or shooting clays (or another sporting purpose) and there is no proof it was also for self defense/protection. USSG §2K2.1(b)(2) dictates that defendant bears the burden of proving the applicability of this reduction. This evinces that mentally ill defendants are not treated as severely as felons in possession in connection with controlled substances or commission of a crime but mentally ill defendants in possession are still considered serious offenses by the USSC especially with firearms with certain features. So in this scenario mentally ill defendant could be charged as a level 14 for renting: "Defendant called the agent to ask (1) whether he could rent guns to shoot at a range, and (2) whether he could purchase a firearm if he stated that he had been adjudicated as a mental defective. The agent answered "no" to both questions". (United States v. Tucker (5th Cir. 2022) 47 F.4th 258, 260.) This discussion applies to a very narrow fact pattern:
Challenging a federal firearm prohibition through a petition for injunctive relief, declaratory relief, and writ of mandamus with a Monell claim at the core of the legal argument. By showing that the county routinely violated certification review hearing procedural federal due process protections as set forth in Monell, plaintiffs could move a district court for declaratory relief, injunctive relief, and a writ of mandate that compels DOJ to find that the certification review hearing violated defendant's constitutional rights, nullify? the outcome of that hearing, and order DOJ to remove the 5250 certification review hearing from the NICS indices. If the certification review hearing was conducted without proper notice and due process, plaintiffs would have to first file a writ of coram nobus and then file in federal the motions for declaratory relief, injunctive relief, and mandamus. Monell is not an viable claim when the violation of due process is not a very routine occurrence (training defect) or policy in that county. Monell claims are a very unusual basis to predicate a second amendment prohibition challenge on. Defendants claim a violation of their fourteenth amendment rights occurred when a [certain] county's routine practice/policy of barring defendants from being present at their certification review hearing, have legal counsel, and of being informed of their right to challenge the findings via writ of habeas corpus. However, Monell dictates that a municipality can only be held liability under § 1983 if plaintiff shows (1) she was deprived of a constitutional right; (2) the municipality had a policy or custom; (3) the policy or custom amounted to deliberate indifference to plaintiff's constitutional right; and (4) the policy or custom was a moving force behind the constitutional violation. Mabe v. San Bernardino Cty., 237 F.3d 1101, 1110-11 (9th Cir. 2001). CA and federal law define the due process protections for those facing a 14 day hold under seciton 5250 and how they are safeguarded during certification review hearings. However, many people have asserted that they have had their presence at their cert hearing waived against their wishes or had had the cert hearing conducted while they were involuntarily sedated. Firstly, Monell claims may only be raised when a municipality has enacted a rule or custom that violates a defendant's civil liberties. It does not apply when a county enforces a state law or enforces a state law with varying levels of compliance with the fourteenth amendment. Municipalities extend beyond just a city; counties are included in the definition; "Since a county is an integer or part of a State, the United States can impose upon it, as such, any obligations to keep the peace in obedience to United States laws" ie the Constitution. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 672-73, 98 S. Ct. 2018, 2026-27 (1978). Under Monell, the way plaintiff may establish a policy or custom is by showing that the alleged constitutional violation was done in accordance with the governmental body's longstanding practice or custom. Nyarecha v. Cnty. of L.A., No. 23-55773, 2024 U.S. App. LEXIS 26252, at *1 (9th Cir. Oct. 17, 2024). To establish liability on the part of governmental entities under this theory, a plaintiff must show: (1) that they possessed a constitutional right of which they were deprived; (2) that the municipality had a policy or custom; (3) that this policy "amounts to deliberate indifference" to the plaintiff's constitutional right; and, (4) that the policy is the "moving force behind the constitutional violation. Plumeau v. Sch. Dist. No. 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (internal quotation marks omitted). . A plaintiff may establish municipal liability under 42 U.S.C.S. § 1983 even where the municipality does not expressly adopt the alleged policy through manuals or codes. There are three alternative ways: (1) if an employee commits a constitutional violation pursuant to the county/municipality's long-standing practice or customs; (2) when the person causing the violation has final policymaking authority (not a supervisor or employee), or (3) where the county or municipality's failure to train their employees amounts to deliberate indifference to the rights of persons with whom the police [sic] come into contact. It is not enough for a § 1983 plaintiff to identify conduct properly attributable to the municipality. Rather, plaintiff must demonstrate that it is the county's deliberate conduct, the municipality was the moving force behind the injury alleged. At the pleading stage, a plaintiff's claim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to provide the opposing party with fair notice so it can defend itself. Estate of Chivrell v. City of Arcata, 623 F. Supp. 3d 1032, 1036 (N.D. Cal. 2022) To successfully defend the elements required to show a failure to train, a plaintiff must show (1) "the existing training program" is inadequate "in relation to the tasks the particular officers must perform"; (2) the officials have been deliberately indifferent "to the rights of persons with whom the police come into contact"; and (3) the inadequacy of the training "actually caused the deprivation of the alleged constitutional right." Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989) Hence if say the county of San Bernardino was enforcing or engaging in the customary practice of not noticing patients of their pending certification review hearing, their rights to present witnesses, right to an advocate, and right to writ of habeas corpus; defendants could advance a Monell claim, but if the habit of violating their rights was variable then Monell would not be appropriate. First, Plaintiff claims the County failed to notify her about, or even hold, a certification hearing as required by California law, which deprived her of her Due Process and her Second Amendment rights. Plaintiff's briefs root her legal theory as a result of both "affirmative policymaking and inadequate training". She asserts defendant county's failure to train employees resulted in the failure to adequately notify plaintiff of her right to a certification review hearing. In Monell, a plaintiff may establish liability by demonstrating that the constitutional tort was the result of a longstanding practice or custom which constitutes the standard operating procedure of the local government entity. Plaintiff avers there is no evidence that she had received notice of a 5250 certification hearing and the hearing never occurred. Second, she claims the routine destruction of [her] records, both by the Superior Court and the treatment center, deprived her of any chance to clear her name through later judicial review, violating her substantive due process rights and as a result her Second Amendment rights. Plaintiff framed this claim as alleging a “per se substantive due process violation.”. Third, she argues the County's policy of allowing patients to waive their right to appear at their certification hearings, without prior advice from legal counsel, is a facial violation of procedural due process because it deprived her of a right to representation by counsel and subjects her to the stigma of a mental health certification without adequate process of law. see Pervez v. Becerra, 2:18-cv-02793-KJM-KJN, 9 (E.D. Cal. Jun. 27, 2022) As noted above, Plaintiff advances her claims under 42 U.S.C. § 1983 using a Monelle claim. Because the County of Sacramento is the sole remaining defendant, for her claims to survive summary judgment, she must satisfy the requirements set forth by Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Under Monell, counties and municipalities are not automatically responsible for the constitutional torts of their employees under a “ de facto respondeat superior” theory of liability. Some direct official act by the municipality must be the moving force behind the constitutional violation. Monell, 436 U.S. at 694. To establish a municipality's liability under § 1983, a plaintiff must therefore show (1) she was deprived of a constitutional right; (2) the municipality had a policy or custom; (3) the policy or custom amounted to deliberate indifference to plaintiff's constitutional right; and (4) the policy or custom was a moving force behind the constitutional violation. Mabe v. San Bernardino Cty., 237 F.3d 1101, 1110-11 (9th Cir. 2001). This “policy or custom” requirement applies in § 1983 cases irrespective of whether the relief sought is monetary or, as here, prospective. Los Angeles Cty. v. Humphries, 562 U.S. 29, 39 (2010).” A writ of coram nobis is "a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable. United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007). A writ of coram nobis is distinguished from a writ of habeas corpus, which is available only to defendants who are in custody. United States v. Robles, No. 24-00321 SOM/KJM, 2024 U.S. Dist. LEXIS 167132, at *6-7 (D. Haw. Sep. 17, 2024). A writ of coram nobis allows petitioner to attack a judgement when the petitioner has already finished his sentence and is no longer in custody. Although usually reserved for defendants who are in the criminal justice system it could have applications for other proceedings that have far reaching impacts but due to petitioner being released from confinement; a writ of habeas corpus is foreclosed. To qualify for coram nobis relief, a petitioner must establish all of the following: (1) a more usual remedy is not available; (2) valid reasons exist for not having attacked the judgement earlier; (3) there are adverse consequences from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character. See Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987). "Because these requirements are conjunctive, failure to meet any one of them is fatal." Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002). This writ can relieve defendant of continuing non-custodial effects of a final judgement only when fundamental errors were made in obtaining the conviction. This implicates second amendment prohibitors as they are lifelong under 18 USC 922 (g)(4); even if the state five year prohibition expires. Although Federal Rule of Civil Procedure 60(b) expressly abolishes use of coram nobis in civil cases, involuntary commitment proceedings in California are considered quasi-criminal proceedings. (Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987). Although this is an unsettled area of law; due to the nature of involuntary commitment proceedings and the legal precedents like Blackburn and Tran, an argument could very well be made that coram nobis is allowed for quasi- civil commitments. SCOTUS issued its opinion New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022) while Rahimi was moving through the courts. In Bruen, the court set the standard challenging Heller that explained that when a firearm regulation is challenged under the Second Amendment, the Government must show that said restriction is consistent with the Nation's historical tradition of firearm regulation. Id., at 24, 142 S.Ct. 2111. In Bruen, the new standard directed district courts to examine the historical tradition of firearm regulation as it pertains to certain condut to help delineate the limitations of the right. The court explained that if a challenged regulation fits within historical tradition, it is lawful under the Second Amendment. However many lawyers and courts have interpreted this to mean strictly around the founding years. When the Government regulates firearm conduct, like how it regulates other rights, it bears the burden to justify various regulations. This has lead to split circuit opinions misunderstanding Bruen methodology. These precedents were not meant to suggest adhering to archaic laws trapped in time.
In Rahimi the court attempts to clarify Bruen to state that the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin firearm traditions. A court must ascertain whether the challenged law is relevantly similar to laws that tradition is understood to permit. It must analyze the balance between founding era rules and modern laws. Bruen dictated that if founding era laws regulated firearm use to address particular problems like serious mental illness, that will be a strong indicator that our contemporary laws imposing similar restrictions for similar reasons will also fall within a permissible category of regulations. Even when a law regulating firearms for permissible reasons, may not be compatible with the right if it does so to an extent beyond what was done at the founding. However, Rahimi specifically broadens the scope of Bruen by stating that when a challenged regulation does not precisely match its historical precursors, “it still may be analogous enough to pass constitutional muster.” Id., at 30, 142 S.Ct. 2111. The law restricting possession must comport with the principles underlying the Second Amendment, but it need not be a “dead ringer” or a “historical twin.” Thus most courts would conclude that section 922(g)(4) survives a Bruen challenge. However, the intent and purpose of Welf and Inst Code section 5250 does not have historical analogous laws and purposes as was present during founding era and beyond. Welf and Inst Code § 5256.6 reads: If at the conclusion of the certification review hearing the person conducting the hearing finds that there is probable cause that the person is, as a result of a mental disorder, a danger to others, or to himself or herself, or gravely disabled, then the person may be detained for involuntary care, protection, and treatment related to the mental disorder pursuant to Sections 5250. The certification review hearing serves as a legal mechanism to challenge the involuntary status since there is not enough time to challenge a 72 hour hold by writ. The LPS conservatorship is designed for long term confinement and treatment. A 14 day hold is often required to keep the person to stabilize their condition and then release them at the end of the hold or to request a 30 day hold or LPS conservatorship. Historical analogues indicate that the mentally ill were confined with no forms of due process and could be held for years with no means of formal judicial review as dictated by Mai. The purposes of the 922(g)(4) prohibitor was for those who were certified for a year or more, or determined by a criminal court to be NGRI. In Tyler v. Hillsdale County Sheriff's Department defendant stated: "Numerous other historical examples fail to conclusively demonstrate that [he] would have been disarmed when he poses no risk. For instance, historically society could disarm “any person or persons” judged “dangerous to the Peace of the Kingdome” under the 1662 Militia Act. 13 & 14 Car. 2, c. 3, § 1 (1662) (Eng.) ...... [he] is capable of exercising his right to arms in a virtuous manner. The right to arms was limited when an individual presented a “real danger of public injury.” The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents (1787), reprinted in 2 Bernard Schwartz, The Bill of Rights, A Documentary History 665 (1971) (emphasis added). Mr. Tyler simply does not present such a real danger of public injury". Although section 5250 does state that it is for dangerousness to others, the intent of the law was to confer the right to patients to have due process review for their involuntary hold, rather than to serve as a full fledged commitment hearing akin to a NGRI or MDO hearing. If citing to historical analogues, there is little literature about the disarmament of mentally ill individuals. 28 C.F.R. § 25.6(j)(1) Everytown and Giffords presenting a possible case for changing the CFR to include NICS background checks for firearm licensing. Currently we have the FBI-CJIS uses the following for FOID background checks: National Crime Information Center (NCIC), Interstate Identification Index (III), National Instant Criminal Background Check System (NICS), and the United States Department of Homeland Security (DHS). However, gun control advocates push for tighter regulations and perhaps argue that requiring that more states adopt IL's state model in order to cut down on straw purchases and "lie and try" applicants. As they are concerned about the time to crime with stolen firearms or straw purchases, they could contend that by 28 C.F.R. § 25.6(j)(2) is too late to stop the crime as (2) reads: Access to the NICS Index for purposes unrelated to NICS background checks pursuant to 18 U.S.C. 922(t) shall be limited to uses for the purposes of:
(2) "responding to an inquiry from the Bureau of Alcohol, Tobacco, Firearms, and Explosives in connection with a civil or criminal law enforcement activity relating to the Gun Control Act (18 U.S.C. Chapter 44) or the National Firearms Act (26 U.S.C. Chapter 53)" Advocates and some law enforcement officials have pushed for greater access to the NICS. For instance, a 1998 rulemaking noted that local agencies wanted permission to access the database to determine if a person was in "unlawful possession of a firearm." The ATF resisted these requests. In the ATF's view, such expanded use would violate federal privacy laws. Moreover, ATF noted that the Brady Act only required federal agency reporting for the purpose of carrying out the federal background check provisions, rather than for a wider range of law enforcement activities. The permissive use regulations is constrained by a balancing act of complying with federal law, meeting the informational needs of local law enforcement, and ensuring privacy of the affected individuals. In arriving at the scheme in place today, the FBI and ATF has shown a willingness to expand NICS access to support local partners, but has apparently not gone as far as some of those partners may desire. The comprehensiveness and accuracy of the NICS has been a subject of frequent debate and attention. At the federal level, many agencies possess disqualifying information that would be relevant to a background check. Under the original Brady Act, federal agencies were required to furnish information to the Attorney General upon request 34 U.S.C. § 40901(e)(1)). However in Robinson v. Sessions, 260 F. Supp. 3d 264 (W.D.N.Y. 2017), the court noted in its opinion that 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. |