Hawaii’s State Legislature recently passed SB2954, commonly known as the Hawaii Gun Owner Registration Bill, which authorizes county police departments in Hawaii to enroll firearms applicants, owners, and individuals who are registering their firearms into the FBI’s “RAP back” program.

Hawaii already has heavy restrictions on firearms ownership, and provides that firearm owners who choose to reside in Hawaii must register their firearms with the State within five (5) days of moving their weapons into the State, or purchasing weapons.  Residents of Hawaii who wish to purchase a firearm, must first apply and receive a permit to purchase, which necessitates going through fingerprinting and the National Instant Check System (NICS).  While the owners themselves do not then need to be registered, every individual firearm purchased, or brought into the State (other than temporarily for target shooting or hunting) must be registered.  Additionally, separate permits to acquire weapons must be attained for every handgun purchased. The registration process applies to handguns and long-guns alike, and necessitates having a permit to acquire the firearm.

Hawaii is now legislating the ability of the police to enroll those individuals that register firearms into the “RAP back” program.  The FBI “RAP back” program is a “Next Generation Identification” service that was designed to keep up to date information on criminal convictions or indictments in any State of responsible persons.  The program essentially provides constant monitoring of the records of anyone entered into the system, and provides a notification when there is any new activity, whether in the employer’s home State, or in another State.  Since the inception of the “RAP back” program, much of its use has been for employers to keep track of criminal activity for persons in positions of responsibility, such as teachers, or school bus drivers.  Questions of whether this creates a registry of firearm owners abound.

Federal law says at 18 U.S.C. 922(t)(2)(c) that provided the purchaser of a firearm is a lawful purchaser, and not a prohibited person under either Federal or State law from owning a firearm, that the manufacturer, importer or dealer of the firearm shall “destroy all records of the system with respect to the call (background check call) (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.”  This part of the statute was clearly designed to avoid the government keeping records, or forming a de facto registry of firearm purchasers.  In addition to this Federal regulation, the Brady Act to Prevent Handgun violence which established the National Instant Check System (NICS) specifically “prohibits any Government entity from using the system (NICS) to establish any system for the registration of firearms, except with respect to persons prohibited from receiving a firearm.”  The Brady Act also “prohibits the government from requiring that any NICS record be recorded at or transferred to a government facility.”  These provisions also seemed designed specifically to alleviate fears that the NICS check records could be used to form a registry

Because Hawaii currently uses the NICS check authorized by the Brady bill, it will be subject to the provisions of 18 U.S.C. 922(t)(2)(c) as well as those of the Brady bill relating to creating a firearms registry.  While it will be up to a court to decide, there certainly seems room to argue that entering the information gained through and after the NICS check system into the “RAP back” system would create a record maintained by the government in violation of the above provisions.  Hawaii currently circumvents such restrictions by using the NICS check to determine whether you are eligible for a permit to purchase a firearm, but not using the NICS check when registering firearms, which would constitute creating a registry under the Brady act and 18 U.S.C. 922(t)(2)(c).  Hawaii’s plan does however likely fit within the FBI’s Memorandum of Understanding on use of the Automated Fingerprint Identification System (AFIS).  The addition of firearm owners fingerprints to the AFIS system would be allowed, as AFIS currently accepts voluntary submissions by state, local, and federal law enforcement agencies.  The issues with these submissions really revolve around the potential for AFIS to be a sort of registry of firearms owners itself.

Pennsylvania is protected by both the Federal protections discussed earlier, and the protections written into the Brady act.  In addition to these protections, Pennsylvanians under State law, 18 Pa.c.s. 6111.4 which says that “nothing in this chapter shall be construed to allow government or law enforcement agency or any agent thereof to create, maintain or operate any registry of firearm ownership within this Commonwealth.”  However, there is a major caveat and some bad case law regarding all of these protections.  In NRA v. Reno the DC Circuit Court of Appeals examined 18 U.S.C. 922(t)(2)(c).  It found that the Federal government maintaining records from firearms purchases for 3 months was not a “creation of a registry” because that was not the primary purpose of maintaining the records. The fact that it was “only 3 months” was a factor as well.  In Pennsylvania, our case law relating to our State protection is even worse, as evidenced in our Supreme Court of Pennsylvania in the case of Allegheny Cnty. Sportsmen’s League v. Rendell, 580 Pa. 149 (2004). In that case, the court found that the Pennsylvania State Police maintaining a record of handgun purchasers who completed NICS checks was not a “firearms registry” because it only encompassed records of handguns, and did not include all firearms.

Tough case law, but it is what we have to live with now.  If Hawaii-style maintenance records of anyone registering a firearm in the FBI “RAP back” system were to ever take place in Pennsylvania, at the very least a strong argument could be made as to the illegality of such a system under both Federal and State law.  However, history shows us that until a case is actually adjudicated on a matter, we never really know how or what the courts may decide notwithstanding the plain reading of a statute, and how they may pervert the interpretation of the statute(s) in question to reach their decision. So stay tuned.

[A special hat tip to The McShane Firm, LLC summer legal intern Gil Ambler who wrote this post.]