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Univ. of San Diego School of Law

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Monday, December 1, 2008

Gun checks may violate federal law

The Delaware State Police have been conducting secret background checks of some gun owners since 2001, a process known as "superchecks" that may violate federal law.

The checks have resulted in confiscation of weapons, some for legitimate reasons, but have subjected many citizens to a search of mental health records that in most cases police would be unable to access.

In Delaware, when someone attempts to purchase a pistol or rifle, he or she must first sign a consent form authorizing a criminal and mental health check by the state Firearms Transaction Approval Program.

These background checks are initiated when a gun dealer calls the firearms unit seeking approval to sell a weapon.

Employees of FTAP conduct about 10,000 background checks a year using computers that link to criminal and court databases and a mental health database maintained by the Delaware Department of Health and Social Services.

Through a request made under the state Freedom of Information Act, The News Journal obtained the results of nearly 4,000 background checks conducted by FTAP from 1998 to 2008 in which gun purchases were denied by state police. The state must destroy records of approved gun purchases within 60 days under a law designed to prevent agencies from compiling lists of gun owners.

The FTAP program was created by lawmakers, and funded by taxpayers, to aid licensed gun dealers, but The News Journal found that more than 10 percent of background checks denied by FTAP were requested by state troopers, not by gun dealers attempting to authorize a legal sale.

None of their superchecks involved gun sales and none of the people checked by state police had signed a written consent form. But all the superchecks, state police said, were gun-related.

Because FTAP checks of legal gun ownership are destroyed, it's impossible to tell from the data how many superchecks state police routinely conduct. A DHSS spokesman said his agency does not keep a record of the number of times FTAP employees have accessed the state's mental health database. [Mark Godsey]

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