Gun purchase glitch raises questions

The below story is an exam­ple of the police keep­ing data they are not legally allowed to keep. In this case it was in rela­tion­ship to firearms pur­chases, which some peo­ple might not object to. But in this arti­cle, we see that the Massachusetts State Police are keep­ing much more per­sonal infor­ma­tion in the crime lab.

Previously pub­lished in delawareonline.com (link no longer working).

Del.‘s small-arms advo­cates shocked over DSP recordkeeping

Delaware State Police stopped Alvina Vansickle from pur­chas­ing a .22-caliber pis­tol for self-defense because she was too old and a woman, said Superintendent Col. Thomas MacLeish.

The out­rage that fol­lowed led to the rev­e­la­tion that Delaware State Police had been keep­ing lists of gun buy­ers for years; state law requires them to destroy these records after 60 days.

Without so much as a traf­fic ticket, the 81-year-old Lewes res­i­dent should have sailed through the manda­tory state police back­ground check when she tried to buy a Taurus revolver from Charlie Steele’s Lewes gun shop last August.

Problems started after Steele made the required phone call to state police for approval of the firearms transaction.

An employee in the state police Firearms Transaction Approval Program noticed Vansickle’s age and gen­der, and brought the sale to an imme­di­ate halt.

Vansickle’s appli­ca­tion was then routed to Sgt. Benjamin Nefosky, who heads the firearms approval unit.

According to MacLeish, the trans­ac­tion was halted over con­cerns “based upon age and gender.”

“To be very hon­est with you, we have a legal oblig­a­tion under the law to do approvals,” MacLeish said. “We also have an oblig­a­tion to make sure we’re safe, and pay­ing due diligence.”

MacLeish said the ini­tial call taker “was con­cerned this indi­vid­ual never pur­chased a weapon before. Age and gen­der caused her to take caution.”

As to whether age and gen­der are included in the state statute as legit­i­mate rea­sons to reject a firearms pur­chase, MacLeish stated, “No, they are not.”

“I believe there was cau­tion taken on behalf of the call taker,” he said. “It was done with­out malice.”

Vansickle’s pur­chase was even­tu­ally approved — 10 days after the ini­tial appli­ca­tion — after she and the dealer were inter­viewed by police about the pur­chase. A nor­mal delay is three days.

The sale even­tu­ally went through.
Government track­ing feared

Word of the delay rebounded around Delaware’s small-firearms com­mu­nity, even­tu­ally mak­ing its way to Dave Lawson, a retired state police lieu­tenant and firearms instruc­tor. Lawson spoke to his for­mer col­league Nefosky about Vansickle’s dilemma, Lawson said.

Lawson said what Nefosky told him revealed there was a much larger prob­lem in the firearms approval unit than keep­ing a small-caliber revolver out of the hands of an 81-year-old woman.

Lawson said Nefosky told him he searched seven years of firearms trans­ac­tion records to see if Vansickle had ever bought a gun before.

Some gun own­ers fear any gov­ern­ment agency that tracks gun pur­chases or keeps lists of who has them. They worry these lists could some­day aid in weapons con­fis­ca­tion, fall into the wrong hands and serve as a road map for bur­glars and thieves, or result in increased scrutiny by law enforcement.

“I was totally drop-jawed,” Lawson said. “I asked him how far back the records went. He didn’t know. He didn’t care. He felt she was pos­si­bly a threat because of her age, a threat to her­self or her fam­ily. That’s what the impli­ca­tion was. He was con­cerned that never hav­ing bought a gun before, why would she want one now, at 81?”

Lawson served in the State Bureau of Identification as a lieu­tenant, which includes the firearms approval sec­tion and other spe­cialty units. He knew the law. Nefosky’s con­cern about Vansickle’s age and sex, he said, should never have come into play.

Lawson also knew the gun records should have been destroyed.

MacLeish would not allow Nefosky to be interviewed.

In an inter­view with The News Journal, MacLeish claimed all paper firearms records are destroyed every 60 days.

The elec­tronic records, how­ever, are another story.

“Our review of our elec­tronic records indi­cated we had a glitch in the sys­tem, back to August 2005,” he said. “They have since been purged.”

The elec­tronic records never posed a threat, MacLeish said.

“The info was in an elec­tronic file that no one did any­thing with,” MacLeish said. “We’ve since purged that file in its entirety.

Enter the National Rifle Association.
Civil rights of gun buyer at risk

John Thompson is pres­i­dent of the Delaware State Sportsmen’s Association, the local affil­i­ate of the NRA.

Several peo­ple told him of Nefosky’s delay, and expressed their out­rage about the list of gun own­ers main­tained by the Delaware State Police.

Thompson, an attor­ney, had worked with state law­mak­ers in the early 1990s to craft the state’s background-check law.

Legally, he said, Vansickle’s rea­sons for want­ing a firearm are moot, and he knew the lists were a problem.

“This sug­gests two vio­la­tions: one is denial with­out cause, and the other is keep­ing records of gun pur­chases,” Thompson said. “Under statute, the Delaware State Police are required to destroy any pur­chase records that involve approvals. Now they’re main­tain­ing lists of gun own­ers, which we think is inap­pro­pri­ate. We did not cre­ate this sys­tem to allow this to happen.”

Vansickle’s civil rights were vio­lated, he said.

“There is noth­ing in the Second Amendment or the Delaware Constitution that says the right to own firearms is lim­ited to peo­ple of a cer­tain age,” Thompson said. “We don’t have any prob­lem with age restric­tions regard­ing chil­dren, but we don’t think some­one ought to arbi­trar­ily decide peo­ple are too old to own guns.”

Retired Dover police cap­tain John Sigler is pres­i­dent of the National Rifle Association, a posi­tion once held by leg­endary actor Charlton Heston.

“I was lit­er­ally shocked that such an event would occur in the state of Delaware,” he said. “I am very, very trou­bled that an indi­vid­ual — based on her age — was denied the abil­ity to defend herself.”

Both Sigler and Thompson pointed to the recent Supreme Court deci­sion District of Columbia v. Heller, in which the court found that the Second Amendment pro­tects an individual’s right to pos­sess firearms for per­sonal use, such as self-defense.

While Sigler expressed “the high­est respect” for the Delaware State Police and MacLeish, he found it intol­er­a­ble that the agency “has been keep­ing records they’re not sup­posed to have, for at least seven years.”

“That means that for seven years that office has been vio­lat­ing Delaware state law and thumb­ing their nose at the state Legislature,” he said. “I cer­tainly hope it’s not true, but it appears that it is.”

Sigler brought the goings-on in his home state to the atten­tion of Bob Dowlut, NRA gen­eral counsel.

In a let­ter to MacLeish sent Aug. 28, Dowlut and the NRA requested two sep­a­rate inves­ti­ga­tions: one to focus on Nefosky’s denial, “and all other trans­ac­tions of sim­i­lar scope and nature.” According to the let­ter, the sec­ond inves­ti­ga­tion should focus on who’s respon­si­ble for keep­ing lists of gun own­ers in the state.

“NRA respect­fully requests to be noti­fied about all actions taken to cor­rect this sit­u­a­tion,” Dowlut wrote. “At this time, there are a num­ber of peo­ple urg­ing the fil­ing of a law­suit to rem­edy this mat­ter, how­ever, tak­ing of cor­rec­tive steps imme­di­ately would be prefer­able to lit­i­ga­tion for all concerned.”

MacLeish said two inter­nal inves­ti­ga­tions “have been ini­ti­ated by myself, by the division.”

Dowlut copied his let­ter to Gov. Ruth Ann Minner, who declined to com­ment for this story.
Elderly woman’s hus­band speaks out

Vansickle’s hus­band, who has legally pur­chased sev­eral weapons over the past sev­eral years, spoke on her behalf about the delay.

“Apparently, they thought she might shoot her­self with it,” said J.R. Vansickle, 83. “She has a clean record. There was no rea­son to turn her down. I lost both legs through dia­betes. I’m in a wheel­chair. We’re an elderly cou­ple. She wanted the gun for self-defense in our home.”

The state police firearms unit was estab­lished as a result of the Brady Law, which took effect in 1994.

Nefosky super­vises four criminal-history employ­ees, who take calls from gun deal­ers around the state, and approve or deny the pur­chases based on the buyer’s crim­i­nal history.

According to state police, dur­ing 2006 and 2007, the unit processed 21,304 trans­ac­tions, which have resulted in 711 denials.

Dowlet told the news­pa­per that for police depart­ments, the types of prob­lems the Vansickle case exposed are extremely rare.

“Most police depart­ments, when they put some­one in charge of a unit like that, they need to be com­pletely famil­iar with the law,” he said. “There’s an anom­aly here, some­one in the Delaware State police who wasn’t fol­low­ing the law. Most police depart­ments — espe­cially in our liti­gious soci­ety — if that’s what the statute says, that’s how they enforce it.”