morning polemic upon a representing the plaintiff of palettes in the ten years since the united states supreme court handed down the landmark decisions of heller and mcdonald just about every case in the united concerning the second amendment has sought to overturn a piece of legislation is being unconstitutional today we stand in the very unusual position of seeking to uphold the law and specifically pieces of the brady act in a case where the united states department of justice on appeal has admitted that a program we allege below is actually fully functional and is ongoing and in our characterization amounts to widespread spying on americans on domestic soil without a warrant you not challenging the we are not so in that to that statute allows specifically for the government to get a warrant it really is that simple you don't claim you're on a story that any of your clients have experienced any till way or anything like that that is correct but the sin begins from the moment that the a t f form four four seven three is submitted through the f f l and hits the hands of the f b i at that moment they're exceeding statutory jurisdiction where they can only check the databases to see if the individual customer is a disqualified person the limit of the database is the limit is that eighteen u s c section nine twenty two g has actually been formally convicted as in the previous and recent case that you reference it is possible for d o d to make that request a referral for a record mind you and i don't want to sidetrack write this letter saying and i always grew up i actually was u s attorney during the time immediately post nine eleven s where we were checking your radiator based prop possible to determine whether there were people out there that the government and the united forces including state and local law enforcement and were were viewing is a possible threat yes and there's a problem with checking that list to see if the person applying for firearm is on the list and then subjecting them to further inquiry there's no problem with turkey with checking the terrorist screening database right no problem with checking the videotape we have no objection to that but you may not use the data from the a t f form four four seven three this is not a statute that provides general authority with exceptions when it cannot be used this is a statute that says it can only be used in the very specific circumstances of inquiring whether a person is a disqualified person and that term is defined very specifically at law and in conformance with the due process clause right but the disqualify person definition is extensive yes not limited simply to person announce their citizenship i mean i could go on and on to that extent i'm not sure how using the database cannot be seen as consistent with the purpose to identify such persons because they're not all going to be identified through criminal record checks that is correct but let's just take one example that you list to judge greg the involuntary commitment to mental institution under g four it is very important when looking at the want to be involuntary it does when you look to the implementing regulations it is not enough to look to the disqualified persons status particularly for g four or without looking at the implementing regulations i have to court cases problem though as i said given the spread and what is the problem with there being a day to base that could potentially capture any number of these disqualified people because they are not  come in all shapes and forms and so many of them may fit piece disqualified criteria and if they do fit the disqualify current theory if they are one of the one hundred ninety people of the alleged two thousand two hundred thirty three matches of two hundred twenty two million recent argument i don't think that i do because when you look at the implementing regulations of twenty two c f r section twenty five minute sub parts it is very clearly defined which databases the f b i may look to and the t s d b and the matches the database that the government is seeking to use it for is not a qualified person in congress has said for ten years and numerous bills they are not going to make it a disqualified person no i don't know the answer here that  authority you cannot use the list as i understand your argument and as i would articulate your argument you cannot use the list to say you're disqualified but you can use the list and i don't see any reason why not but you could persuade me otherwise you can use list say you are on the list and therefore you need to be further checked to see whether you know did you have some dysfunctional outburst on an airplane that indicate you're mentally unstable but if that would be the ensures that they are against abuse here but my skin is not we're not here to answer your questions you have to persuade us that there was error here at that is part of the persuasion this statute unlike section seven  two unlike your prison case is unlike your upstream cases all of these cases that the second third and fourth departments of all very recently decided the government has admitted it is actually using the data every one of the plaintiffs has purchased a firearm since two thousand and four the admitted period and their information has been used by the government so we have nothing speculative if you're not disputing that they can use that data for permissible research that is correct  if your client's been insured by the use of it for what you allege is it impermissible purpose i mean as i said to you at the outset i gather you're not claiming that you're on the list or that you experienced be used so i mean it's not that this is private information it is private information beyond the express statutory purpose for which the information is supplied and for which fact that if  used by the government but they use it for more than they are authorized to do it that that violates privacy in a way that's legally cognize what what case should we look at for that i believe issue of whether you are going to as a court give the government term mission to use submitted information adding on on the cond up to your complaining about washington versus trump and the associated cases on the executive orders recently handed down would be a list coming through three different departments right and those are cases that are said only to the extent in those cases that the court i get a five persons who would suffer an actual injury if certain aliens were not allowed to enter the united states it's not clear that you're not alleging that any of your clients or ought to be the terrorist list or that they have good experience delay in purchasing the gun we are not able to make that allegation because every one of the pla make the allegation meant that there was no standard but then what you're saying is that it's permissible for the government ninety nine point nine nine nine literally statistically in this case percent of the time to simply use whatever information an american supplies to it for whatever purpose the government wants there's certainly no notice on the form four four seven three that this information will be used for anything other than the nine disqualifying persons categories you  suspected terrorists they don't do not even allowed they have ever had a foreign purchase delayed and so they cannot identify any entry they have suffered a result of the conduct to seek to challenge now i'm happy to answer any questions you may have injury begins as soon as the information that is supplied which i think we can all agree is personal information is shared beyond the statutory authority granted specifically by congress f and the f b i for a very specific use namely to ascertain whether the customer standing at the counter is a potentially disqualified person who is now permanently ineligible from the ownership use or possession of a fire the statute provides that the government can seek a warrant if they believe that the person may be engaged in criminal activity and they can make out their claim for a warrant the statute provides for it the statute also provides and it's implementing regulations many times over the word privacy so i can certainly cite to landmark cases like roe versus wade with a claim of the put under of privacy does that i have statutory privacy over look for determining mental health disqualify yes i do the implementing regulations you are required to have a court order it is an involuntary commitment not a person who seeks voluntary treatment and even recent information and guidance documents that have come out from d h h s so how do you know when or not for the you know what state you're going to to look for that yes you do federal district you're going to the court actually makes judge and they would issue a nationwide order saying provide us any mental health information that's how that works i'm sorry i don't quite understand your question we're going back to the one i'm asking you where do you look to find out whether you even need to look or get a court order for mental health information you mean statutorily your honor were to tell me how to start you in your construct wasn't supposed to work so somebody walks in and and is it's been certified and has been involuntarily committed and is now out and it wants to buy a handgun and nobody knows that's sitting there and it certainly isn't put on the form where do you look to check that out right so we're assuming that the individual on the four four seven three checks know and lies committing fraud is that what you're asking me so the customer says no i've never been committed to a mental institution for the f f l who is your dealer then either makes a phone call or if they're involved in the file for the f f l puts into their computer system the basic information right the a t f gets back remarkably quickly by basically saying this person is or isn't disqualified or we need to issue the a t f doesn't know that this person has been involuntarily committed he's just come out of the woodwork the a t f does know if the government office or agency whether state or federal has reported those records to the f b i like but they're not report and the problem that you raise judge is that is a huge problem but it's going on different than the case that we're looking at today the problem then no no because you say what you what you want us to say is that the government can't look at certain databases yes to even find a hint of whether they should be looking further to get a court order to go get the mental health information and i'm suggesting to you who as i did in my prior question when you were first up in the hot seat as you put it that the fly list we know from news reports sometimes contains names of people who just cannot control their emotions and act out at the gate and they're on the frequent flyer list and then they don't understand why they can't fly from here to columbus ohio the next time they show up at the airport and it seems to me that any logical law enforcement officer doing an investigation might say hey you know that person's on the frequent flyer list or on the terrorist watch list and that's what ends up you know indicating that that person may have a mental health problem now i'm going to go see and there aren't and you're saying the government can't do that using that information i am but there are two things going on here that are checks it does require background checks tour this is ours background checks the judge ran the excuse me the n c i c and its files were created in order to implement that that requirement you are correct but he  and then the k s t filed the known terrorists file resides in the n c i c it's not to be confused with the ts d b which is a fuller consolidated watchlist of which k s t is a subset but this k s t file is in and c i see in order to implement the brady requirement for a background check so i'm i'm having trouble understanding how you argue that you know they're just willy nilly inducting searches here when this is how the whole system was set up the system is set up for a mandatory background check the submission of records is voluntary and that is the point i'm trying to make just as i was question was and what it because it was deemed relevant and you're not able to show us that this is a file it's totally irrelevant you know to stop people stirred grade report cards it's that they are known terrorist list which seems to fit any number of the categories that nine twenty two g says could disqualify you from being able to purchase a gun illegal aliens people who've renounce their citizenship  any number of people would be on terrorist watch lists seems quite apt what what's the problem well this court the second circuit in particular does seem to be the court that has had the most cases concerning the fact that there is no known metric and that there is a due process question involved in any of the lists whether we want to call it any one of the acronyms that we've been using the smartening whereas when you look specifically at twenty eight c f r section twenty five point two which is your definitions for the databases to which the f b i may look it specifically references where those records relate to a federal or state disqualifying act and thank you thank you both thank you your hon