Analysis of the pistol permit police-radio database bill, HB 1209
For background on this issue, click here.
The anti-gun central registry bill has been presented as a privacy issue, for the protection of gun owners and pistol permit holders. The bill was entitled, “an Act to provide for limited confidentiality of certain firearms information.” However, this clever title is simply misleading.
In reality, most permit holders are not worried that their neighbors, business associates and fellow church members might find out that they own a gun. Neither are they overly concerned that pistol permit records are open to the public, as South Dakota law requires. But they are very concerned that government agencies may misuse this information to profile gun owners.
Contrary to the claims of some, HB 1209 does indeed provide for the establishment of a police operated central registry for concealed pistol permit holders without in any way protecting permit holders from harassment.
First the bill strictly prohibits any kind of central registry. Then it specifically exempts law-enforcement from this prohibition. Then it reiterates that law-enforcement may use the database in the physical presence of a permit holder. But don’t be fooled by this smoke and mirrors. Nothing in this bill prohibits an officer from accessing the database at any time.
Let's take a look at the bill, point by point.
Perhaps the most significant part of HB 1209 is found in Section 3, which repeals the current law prohibiting a pistol permit police-radio database (SDCL 23-7-8.5).
Next, Section 1 attempts to replace the current database prohibition by positively prohibiting any list, record, or registry of privately owned firearms, as well as any list of firearms owners or pistol permit holders. This prohibition is so complete and absolute that if it were to be strictly enforced, a private gun collector would not even be allowed to keep a record of the privately owned firearms in his own collection.
Section 2 follows with six subdivisions listing exceptions to this prohibition. Subdivisions (1) through (3) exempt the keeping of criminal records. Subdivision (4) exempts the records that firearms dealers are required to keep. Subdivision (6) exempts the Secretary of State in the normal operation of the current concealed pistol permit system.
It is subdivision (5) of Section 2 which completely opens the door to an instantly accessible police-radio database. This provision explicitly exempts any on duty law enforcement officer from the database prohibitions of Section 1 while conducting routine verification of the validity of a permit to carry a concealed pistol.
Virtually any use of this database by any on-duty law-enforcement officer, for any reason and at any time, could reasonably be related to “routine verification of the validity of a permit.” This fact is recognized even by proponents of the bill, and as a result, Sections 4 and 5 were added for the stated purpose of safeguarding the system against possible abuse.
However, Section 4 actually places no restrictions on the use of the pistol permit police-radio database allowed in Section 2, subdivision (5). It simply reiterates that the database may be used to validate a permit presented or declared to exist.
Section 4 states:
“The provisions of this Act do not restrict any law enforcement officer in the performance of any official duty if the law enforcement officer is in the immediate physical presence of a permit holder who has either presented a permit to the officer or declared to the officer that he or she is a permit holder.”
In other words, as long as the officer is in the presence of a person who claims to be a permit holder, that officer is not in any way restricted by this proposed law. Note that Section 4 places NO positive restrictions or “safeguards” upon the actual operation of the police-radio database allowed under Section 2, subdivision (5).
Section 5 does offer one positive restriction. Law-enforcement officers are specifically prohibited from retaining notes, data, or pieces of information unless it is pertinent to a specific investigation or prosecution. However, this provision does nothing to prevent the misuse of information already contained in the pistol permit database.
Some of the politicians are claiming that HB 1209 was only designed to protect your rights and your privacy. In actuality, it throws the door wide open to the type of pistol permit police-radio database that can be used to profile and harass permit holders.