Application of the Brady Act's Criminal Penalties to State or Local Law Enforcement Officers

Opinion

Application of the Brady A ct’s Criminal Penalties to State or Local Law Enforcement Officers

The crim inal penalties contained in the Brady Handgun V iolence Protection Act do not apply to state o r local law enfo rcem ent officers in the perform ance o f their duties under the Brady Act A ccord­ ingly, the U nited Stales lacks the authority to prosecute state or local officials for violations o f the B rady Act.

March 16, 1994

M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l

This m em orandum presents our analysis o f the application o f the criminal pen­ alties contained in the recently enacted Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993) (“the Act”). Specifically, we address the question whether the A ct’s crim inal penalties apply to state or local law en­ forcem ent officers. W e conclude that the A ct’s criminal penalties do not apply to such officials in perform ance of their duties under the Act.

Section 102(c) of the Act amends 18 U.S.C. § 924(a) in relevant part by adding the follow ing new paragraph:

(5) W hoever knowingly violates subsection (s) or (t) of section 922 [the A ct’s interim and perm anent systems for background checks] shall be fined not m ore than $1,000, imprisoned for not more than 1 year, or both.

107 Stat. at 1541.

Three provisions of the Act could be interpreted as placing obligations on a “chief law enforcem ent officer” (“C L E O ”):1 18 U.S.C. § 922(s)(2), which pro­ vides that CLEO s “shall make a reasonable effort to ascertain within 5 business days” w hether a handgun transfer would be illegal; 18 U.S.C. § 922(s)(6)(B), which provides that C LEO s shall destroy information received pursuant to the Act; and 18 U.S.C. § 922(s)(6)(C), which provides that if a CLEO determines that a transfer would be illegal, he or she shall provide reasons for such determination within 20 days.

The Act specifically exempts C LEO s from liability for damages in 18 U.S.C. § 922(s)(7), which provides that

1 18 U .S .C . § 922(s)(8) p ro v id es that, ' ‘|f]o r purposes o f this subsection, the term ‘c h ie f law enforcem ent o fficer' m eans the c h ie f o f p olice, the sheriff, o r an equivalent o fficer or the designee o f any such individual.''

’ E d ito r's N ote: In P r in ti v U nited Slates, 521 U S. 898, 933-34 (1997), the Suprem e C ourt struck down 18 U .S C § 9 2 2 (s)(2 ), to g eth er w ith 18 U S C. § 922(s)( 1)(A )(i)(III) & (IV ), as unconstitutional

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A pplication o f the B rady A c t’s C rim inal P enalties to State or L ocal Law E nforcem ent O fficers

A chief law enforcem ent officer or other person responsible for providing criminal history background information pursuant to this subsection shall not be liable in an action at law for damages—

(A) for failure to prevent the sale or transfer of a handgun to a person whose receipt or possession o f the handgun is unlawful un­ der this section; or (B) for preventing such a sale or transfer to a person who may lawfully receive or possess a handgun.

The Act does not, however, specifically exempt CLEOs from the criminal pen­ alties of 18 U.S.C. § 924(a)(5). Consequently, the question arises whether a CLEO ’s failure to comply with the Act would subject him or her to the criminal penalties o f 18 U.S.C. § 924(a)(5).

The history of the Act indicates that Congress did not envision its criminal sanctions applying to CLEOs. The 1991 version o f the Brady . Bill, which was passed by the House but never enacted into law, contained the criminal penalty provision from the public law quoted above but did not include the principal obli­ gation now imposed on CLEOs — that CLEOs shall make a reasonable effort to ascertain within five days whether a transfer would be illegal. W hen the bill’s pro­ ponents added the “reasonable effort” language of 18 U.S.C. § 922(s)(2) in 1992, no m ember o f Congress even intimated that the modification to § 922(s)(2) would enlarge, or in any way affect, the application of the bill’s criminal sanctions. In fact, there was never any suggestion that the criminal sanction applied to CLEOs. Such congressional silence strongly supports the conclusion that Congress did not intend to apply 18 U.S.C. § 924(a)(5) to CLEOs.

This reasoning is reinforced by the great solicitude paid to law enforcement of­ ficials in other provisions of the Act. It would be incongruous to insulate the CLEO against liability for damages and even for attorneys’ fees for providing er­ roneous information that prevents a sale and then turn around and subject him or her to criminal fine or imprisonment for failure to perform ministerial acts. Our conclusion is further supported by the impracticality, if not impossibility, o f prose­ cuting a chief law enforcement officer for failing to make “a reasonable effort.” The use of the term “reasonable effort” reflects Congress’ apparent intent to vest discretion in CLEOs by providing a flexible statutory requirement. This elasticity, though common in civil statutes, is unusual in criminal laws because it does not clearly define a punishable act. It would be difficult to prosecute a CLEO for fail­ ing to make “a reasonable effort,” and such prosecution could be subject to a Fifth Amendment due process challenge. In light o f the fact that applying criminal pen­ alties to the “reasonable effort” requirem ent would be both unusual and arguably unconstitutional, we find it difficult to believe that Congress intended the “reasonable effort” standard to be criminally enforceable.

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Opinions o f th e O ffice o f L eg a l Counsel

Established principles of statutory construction further support our conclusion that the criminal penalty provision does not extend to law enforcement officials, but only to gun dealers and other nongovernm ental persons. The Supreme Court has repeatedly cautioned that courts should not lightly construe federal statutes as intended to intrude into state governmental processes or to change the traditional relationship between federal and state institutions. Where a statute arguably

would upset the usual constitutional balance of federal and state pow ers . . . it is incumbent upon the federal courts to be certain of C ongress’ intent before finding that federal law overrides this bal­ ance. W e explained recently: [I]f Congress intends to alter the usual constitutional balance between the States and the Federal G overnm ent, it m ust make its intention to do so unmistakably clear in the language of the statute.

G reg o ry v. A sh croft , 501 U.S. 452, 460 (1991) (citations and internal quotation marks om itted). A federal statute im posing criminal penalties on a state law en­ forcem ent official because, for exam ple, he or she destroyed a weapons pur­ chaser’s statem ent a few days late or failed to “make a reasonable effort” to research the inform ation available on a potential purchaser certainly alters “the usual constitutional balance between” the states and the federal government. We are unaw are o f any other instance w here Congress has assigned specific tasks to state or local officials and then deem ed a failure to perform those tasks to be a crime. M oreover it would have the effect of placing the operational and record­ keeping activities o f state and local law enforcement agencies under the supervi­ sion and control o f federal prosecutors and the federal criminal law. Because there is no explicit reference to chief law enforcem ent officers in the penalty provision, it does not contain the “unmistakably clear” language that would be necessary for a court properly to construe the provision to have such a purpose.

To include chief law enforcement officers within the am bit of the criminal pen­ alty provision would be contrary to C ongress’ intent as determined according to rules o f statutory construction and the relevant legislative history. Furthermore, the absence of a definitive standard inherent in the term “a reasonable effort” would very likely pose an insurmountable hurdle to successful prosecution or raise a substantial due process question. A ccordingly, we conclude that 18 U.S.C. § 924(a)(5) does not apply to state officials and that the United States therefore lacks the authority to prosecute such officials for violations of the Act.

W ALTER DELLINGER A ssista n t A ttorn ey G eneral O ffice o f L eg a l Counsel