[Congressional Record Volume 149, Number 37 (Friday, March 7, 2003)]
[Senate]
[Page S3368]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          ANOTHER UNPRECEDENTED STEP BY THE JUSTICE DEPARTMENT

 Mr. LEVIN. Mr. President, I raise an issue that has come to my 
attention regarding the Justice Department's reported attempt to 
restrict the use of the National Instant Criminal Background Check 
System by local law enforcement. According to the Brady Campaign to 
Prevent Gun Violence and the Associated Press, a Department of Justice 
attorney recently threatened to bring charges against a top firearm 
official in California. The charges stem from California's practice of 
conducting National Instant Criminal Background Check System or NICS 
background checks.
  According to reports, the dispute involves the use of the NICS 
database by law enforcement to determine if guns seized in criminal 
investigations should be returned to their owners. California officials 
need access to the NICS database because it includes data from across 
the country and therefore more accurately determines whether a person 
is prohibited from possessing a firearm. Local law enforcement in 
California performs these checks thousands of times per year.
  An example from the Brady Campaign to Prevent Gun Violence 
illustrates the problem. When responding to a domestic violence 
complaint, law enforcement in California ask if there are any firearms 
present in the home and take temporary custody of any guns they find. 
Before returning the guns, law enforcement asks the California 
Department of Justice to run a NICS background check to determine 
whether the gun owner is prohibited from purchasing or possessing a 
firearm. The U.S. Department of Justice is challenging this practice, 
claiming that it is a misuse of the NICS background check system. The 
U.S. Justice Department wants law enforcement to stop performing these 
checks and immediately return guns to their owner.
  The Brady Law contains nine categories of individuals prohibited from 
purchasing and possessing a firearm including felons and illegal 
immigrants. I believe that law enforcement in all 50 states and the 
District of Columbia should do everything within the law to insure that 
these potentially dangerous individuals do not gain access to firearms. 
The State of California is carrying out a common sense application of 
the law. As the Los Angeles Times said in a recent editorial, the 
Justice Department's threatened actions are reckless, and are contrary 
to both public safety and sensible public policy.
  I ask unanimous consent that a copy of the Los Angeles Times 
editorial be included in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      Ashcroft's Russian Roulette

       Last year, Atty. Gen. John Ashcroft tried but failed to get 
     the U.S. Supreme Court to buy his theory that the 2nd 
     Amendment allows pretty much anyone to buy pretty much any 
     gun, a view the court has consistently if infrequently 
     rejected.
       Now Ashcroft has threatened California's top firearms 
     control official with criminal charges if the state continues 
     to use a federal databank to hunt down those making illegal 
     gun purchases, as it has done for years. Ashcroft's latest 
     decree is reckless and could emasculate this nation's gun 
     laws, hamstring police and put the public at risk.
       Since 1998, firearms dealers across the country have used 
     the Department of Justice's National Instant Criminal 
     Background Check System, or NICS, to check, supposedly within 
     30 seconds, whether a customer is prohibited from owning a 
     gun because of, for example, a felony or a history of mental 
     illness.
       California also has used the system to check whether 
     someone recently found by doctors to be mentally unstable--
     and therefore barred from purchasing a weapon--had earlier 
     bought a firearm.
       In addition, state law enforcement officials use this 
     background check to determine whether police should return a 
     weapon confiscated from an arrested person. The police are 
     required to withhold a gun if, for example, they learn that 
     the suspect had committed a crime in another state since he 
     bought it.
       These have been standard law enforcement practices in 
     California for years.
       Ashcroft wants to stop such practices, believing that a gun 
     owner's right to privacy trumps public safety.
       The federal Brady law, requiring the background check for 
     handgun buyers, requires gun dealers to take one peek at an 
     individual's criminal record. A buyer with a clean record 
     takes the gun home. But if that same individual later commits 
     a crime, is slapped with a restraining order or becomes 
     mentally unstable, Ashcroft has decreed no one should know.
       Ashcroft would force California law enforcement officials 
     to play Russian roulette 7,000 times a year when they release 
     a suspect for lack of evidence, spring a parolee from prison 
     or discover that a judge has put a restraining order on a 
     wife beater who has a firearm. Only, in this game, the 
     bullets will be aimed at law-abiding citizens.
       For the moment, California Atty. Gen. Bill Lockyer and his 
     firearms division chief, Randy Rossi, are standing firm, as 
     they should, vowing to continue using the NICS database to 
     protect Californians despite Ashcroft's vague threats of 
     prosecution. Pressure from Sen. Dianne Feinstein's (D-Calif.) 
     office may have prompted staffers from Ashcroft's and 
     Lockyer's offices to agree to talk Thursday by telephone in 
     an effort to end this impasse.
       A large part of Ashcroft's responsibility is protecting the 
     public, not undercutting laws that would help him do that 
     job.

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