Washington I-1639 Registry & HIPPA - Legal Beagle Question

[762pilot]

Apology absolutely accepted. Thank you.

You have a very valid concern in the affects these "laws" are having. I've contributed to the cause financially for years, and am still open to doing so wherever possible. That said, I believe a line was crossed with 1639 and I have dwindling faith in the legal processes and people of this state to fix it adequately. Nonetheless I'm mindful that our freedom truly comes from our Creator, and I strive to live in that light. I think we're all searching for a correct and wise way to respond to this injustice.

 

[Dwesson]

I don't want to derail the thread and I think @Sporting Systems has essentially addressed my question(s). As he pointed out the state doesn't even have the infrastructure in place to support the law as written let alone address the ability to remove firearms from the database or invalidate a HIPPA waiver.

Our only immediate hope is the legal challenge they are spearheading (and I expect it's going to have to go before the Supreme Court as the courts are pretty packed all the way to the 9th circuit). Unfortunately the Supreme Court hasn't heard any 2nd amendment cases in a while.

I think we all know these laws were designed to infringe both the law abiding gun owners and chill the business of FFLs.

I supported my two local LGS where I could prior to I-1639 and continue to with other accessory and ammo purchases (some of which tend to have better margins anyway, maybe not the ammo...). At this point though between all the guns I own, several of which I haven't even shot, and almost a dozen lowers to build up, I'm going to sit on my hands until we have a better idea of how this will shake out.

Who knows, maybe I'll get impatient and decide I'm already on enough lists as it is between the existing pistol database and NFA items, but I don't want to walk through anymore one way doors at this point.

That's a decision we all have to make individually, but I don't think guilting anyone who's sitting out for now is the right course of action.

I'm disappointed that some of the National gun rights organizations have not recognized the change in tactics by Bloomberg etc to go after states individually with these draconian laws and lend more support to states facing this legislation (VA, WA etc).

If the NRA-ILA etc were involved with the current fight sporting systems is spearheading for us, there'd be another 0 or two on that goFundMe total.

 

[Sporting Systems]

I don't want to derail the thread and I think @Sporting Systems has essentially addressed my question(s). As he pointed out the state doesn't even have the infrastructure in place to support the law as written let alone address the ability to remove firearms from the database or invalidate a HIPPA waiver.

Our only immediate hope is the legal challenge they are spearheading (and I expect it's going to have to go before the Supreme Court as the courts are pretty packed all the way to the 9th circuit). Unfortunately the Supreme Court hasn't heard any 2nd amendment cases in a while.

I think we all know these laws were designed to infringe both the law abiding gun owners and chill the business of FFLs.

I supported my two local LGS where I could prior to I-1639 and continue to with other accessory and ammo purchases (some of which tend to have better margins anyway, maybe not the ammo...). At this point though between all the guns I own, several of which I haven't even shot, and almost a dozen lowers to build up, I'm going to sit on my hands until we have a better idea of how this will shake out.

Who knows, maybe I'll get impatient and decide I'm already on enough lists as it is between the existing pistol database and NFA items, but I don't want to walk through anymore one way doors at this point.

That's a decision we all have to make individually, but I don't think guilting anyone who's sitting out for now is the right course of action.

I'm disappointed that some of the National gun rights organizations have not recognized the change in tactics by Bloomberg etc to go after states individually with these draconian laws and lend more support to states facing this legislation (VA, WA etc).

If the NRA-ILA etc were involved with the current fight sporting systems is spearheading for us, there'd be another 0 or two on that goFundMe total.

The NRA is in Olympia right now working on the legislature. They are also half of the lawsuit, along with SAF. They're here.

 

[quneur]

I've been thinking about HIPPA waivers. They separated 'waiver' or listed 'healthcare database' separately from other databases (HIPPA waiver is listed in its own section and only relates to purchases.) Because of this separation both have differing meanings and results.

Normal BGC checks for eligibility. A person with mental defects but who does not have a record is eligible.
A healthcare check checks for mental competency.

I-1639 on yearly checks only states, "(a) Verify, on an annual or more frequent basis, that persons who acquired pistols or semiautomatic assault rifles pursuant to this chapter remain eligible.."

 

[Dwesson]

I've been thinking about HIPPA waivers. They separated 'waiver' or listed 'healthcare database' separately from other databases (HIPPA waiver is listed in its own section and only relates to purchases.) Because of this separation both have differing meanings and results.

Normal BGC checks for eligibility. A person with mental defects but who does not have a record is eligible.
A healthcare check checks for mental competency.

I-1639 on yearly checks only states, "(a) Verify, on an annual or more frequent basis, that persons who acquired pistols or semiautomatic assault rifles pursuant to this chapter remain eligible.."

You're waiving your HIPPA confidentiality for them to determine your eligibility.

"or more frequent basis" - they can pull your records with whatever frequency they want.

There is nothing in the statute that states whom determines eligibility. Hint, it's not the medical care provider.

 

[Sirius]

RCW 9.41.070: Concealed pistol license—Application—Fee—Renewal.

RCW 9.41.070
Concealed pistol license—Application—Fee—Renewal.
——snip ——
(4) The license application shall bear the full name, residential address, telephone number at the option of the applicant, email address at the option of the applicant, date and place of birth, race, gender, description, a complete set of fingerprints, and signature of the licensee, and the licensee's driver's license number or state identification card number if used for identification in applying for the license. A signed application for a concealed pistol license shall constitute a waiver of confidentiality and written request that the health care authority, mental health institutions, and other health care facilities release information relevant to the applicant's eligibility for a concealed pistol license to an inquiring court or law enforcement agency.
——snip ——

Maybe a side note to this thread but I think worth mentioning. Unless I'm missing something, seems to me, if you've got a WA CPL, you've already granted 'them' an indefinite waiver. So 1639 health care records issues, if you have a WA CPL, should be moot if that is what is holding you back from new purchases or transfers.

 

[awshoot]

RCW 9.41.070: Concealed pistol license—Application—Fee—Renewal.

RCW 9.41.070
Concealed pistol license—Application—Fee—Renewal.
——snip ——
(4) The license application shall bear the full name, residential address, telephone number at the option of the applicant, email address at the option of the applicant, date and place of birth, race, gender, description, a complete set of fingerprints, and signature of the licensee, and the licensee's driver's license number or state identification card number if used for identification in applying for the license. A signed application for a concealed pistol license shall constitute a waiver of confidentiality and written request that the health care authority, mental health institutions, and other health care facilities release information relevant to the applicant's eligibility for a concealed pistol license to an inquiring court or law enforcement agency.
——snip ——

Maybe a side note to this thread but I think worth mentioning. Unless I'm missing something, seems to me, if you've got a WA CPL, you've already granted 'them' an indefinite waiver. So 1639 health care records issues, if you have a WA CPL, should be moot if that is what is holding you back from new purchases or transfers.

That's the most recent version which went into effect on July 1, 2018 (see page 154): http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Session Laws/House/1388-S.SL.pdf?cite=2018 c 201 § 6002;

This is the version in effect from 1994 - June 30, 2018:

A signed application for a concealed pistol license shall constitute a waiver of confidentiality and written request that the department of social and health services, mental health institutions, and other health care facilities release information relevant to the applicant's eligibility for a concealed pistol license to an inquiring court or law enforcement agency.

It's pretty similar except there is no express authority for the state to get info from the "health care authority", and because the legislature specifically replaced DSHS with Health Care Authority, it is reasonable to argue that the legislature recognizes these as different agencies and so your authorization for one is not the same as the authorization for the other (the HCA would also not be a healthcare facility).

The bigger difference is that until recently there was none of this ongoing BG check language and so it would reasonable to argue that the waivers before July 1, 2018 were one time waivers. If the legilsature had meant for them to be more than one time waivers in 1994, it would not have had to change the law recently to make them continuous.

So anyway, there are current license holders who didn't agree to the waiver in the current version of the statute, but did to a prior different one.

 

[ACO]

O feel it was the foundation of a multi step process. Just like with semi-autos. Firat lable them assault rifles, and then ban assault rifles. Sweeps every semi auto inder that rug. HIPPA is the first step, and the second sweeps us all under the next rug.

 

[Sirius]

Thanks for the additional info awshoot!
I can see your point. Sounds like it could be a costly argument if it ever needed to be made. I'm thinking it could also depend on who might consider what 'the intent' of the law was/is. So previous to June 30, 2018, WA CPL holders could have adequate cover from the unlimited records review, that is until they renew.

 

[awshoot]

... So previous to June 30, 2018, WA CPL holders could have adequate cover from the unlimited records review, that is until they renew.

I would think that technically the answer is "yes", but at a practical level, how do we know what the state is doing? I would suspect that the way this will work is that somebody in some state agency writes a script that is periodically run against various databases. How will we know they write that script so it only checks newer CPL holders?

I suppose one way we could find out how the law applies, would be in the context of a pre-July 2018 CPL holder getting notice to turn in their card, which would mean they've probably become prohibited in some way. The optics of a lawsuit asking the state to give a concealed carry license back to a person who is likely prohibited from owning firearms at all, is really bad. I would be shocked if anyone even tried to argue such a case.

 

[Devneck]

Regarding people's discussion of "removing" names from a database.

Even if you were successfully able to get a court order to remove your name, the standard practice in database management is to never ever delete anything. Instead of actually removing the data, there is usually a column added called something like delete_at which is a time stamp of when the record is "deleted". That column is used to exclude the record from end users, but it's still there. There are industry terms for this "soft delete" or "paranoia delete".

I don't know how a court order would come into play in this because software engineers are not lawyers. Most people I work with would likely consider the soft delete as complying. There would need to be very specific instructions to the engineers/db admins to not use a soft delete.

 

[dojiijii]

You see my comment and judge me with a defeatist attitude? Really? I'll gain wisdom and understand the implications of my decisions against a written law, then act according to my God given right to live free. Beyond that you'll have to read between the lines.

It seems to me his comment was general rather than specific, i.e. he wasn't calling you defeatist but suggesting that defeatism would be the general response to the layer by layer bureaucratization of gun rights.

People basically have three options...
1) Continue to buy guns knowing you'll be waiving your privacy
2) Stop buying guns so you don't waive your privacy
3) Reject the Big Brother clause and get guns illegally to avoid waiving your privacy

Even if you choose option 1 you can still support the fight against 1639 et. al.

 

[awshoot]

Regarding people's discussion of "removing" names from a database.

Even if you were successfully able to get a court order to remove your name, the standard practice in database management is to never ever delete anything. Instead of actually removing the data, there is usually a column added called something like delete_at which is a time stamp of when the record is "deleted". That column is used to exclude the record from end users, but it's still there. There are industry terms for this "soft delete" or "paranoia delete".

I don't know how a court order would come into play in this because software engineers are not lawyers. Most people I work with would likely consider the soft delete as complying. There would need to be very specific instructions to the engineers/db admins to not use a soft delete.

Very interesting. There's also another practical issue: let's say you get a court order to have some records deleted. Now you have a public record that you were in the database even if you get deleted from it whether soft or paranoid.

 

[awshoot]

...
People basically have three options...
1) Continue to buy guns knowing you'll be waiving your privacy
2) Stop buying guns so you don't waive your privacy
3) Reject the Big Brother clause and get guns illegally to avoid waiving your privacy
...

There's another option here:

2)(a) Only buy guns that have less of an impact on your privacy than pistols and semi-auto rifles.

One can still purchase rifles, shotguns, and muzzleloaders without relinquishing the right to privacy for life. At least for now -- I would guess the legislature will fill that gap in the near future though.

For me, I'm looking into muzzleloaders. Recently shot one for the first time and it was extra fun -- I really loved it.

 

[762pilot]

It seems to me his comment was general rather than specific, i.e. he wasn't calling you defeatist but suggesting that defeatism would be the general response to the layer by layer bureaucratization of gun rights.

People basically have three options...
1) Continue to buy guns knowing you'll be waiving your privacy
2) Stop buying guns so you don't waive your privacy
3) Reject the Big Brother clause and get guns illegally to avoid waiving your privacy

Even if you choose option 1 you can still support the fight against 1639 et. al.

That does seem likely the case, so the apology is all mine. I was quick to give a response, not wanting to be clumped into "that" category. Agreed to the options you mention.

My defenses are up posting around here, and I do so less and less. Apparently I was responsible for having a thread shut down at one point, simply for sharing information as I understood it, but it was uncomfortable for some to hear or not PC enough.

 

[HuckFin]

The DOL is no where sophisticated enough, not do they have funding or systems to actually do anything at this point. It's coming and we are working on a challenge in federal court over the registry aspect of this. The NRA and SAF are both helping examine the venue and mechanism for this suit. Our 1639 lawsuit in Federal court is moving fast at this point, going to be a fun ride. My deposition with the AG's office is Wednesday.

I have been wondering for a long time if Washington State's gun registry with the DOL is legal because sometime in the 1930s all pistol transfer copies were sent to the DOL (Director of Licenses) to be stored. But by 1983 the Chief of Police (COP) took over storing gun transfer records up until 1994 where it was transferred back to the Department of Licensing.

The Firearm Owners Protection Act of 1986 (FOPA) makes it illegal for the National Government or any State in the Country after 1986 to keep any sort of database or registry that ties firearms directly to their owner. So what I am saying is did Washington State lose its right to recreate a pistol registry in 1986 and also was no longer grandfathered in? So between 1983 and 1996 there was a gap where the Chief of Police stored all pistol records not the DOL.

Member awshoot did more research on this subject a year or so ago and hopefully he can add more info.

 

[awshoot]

I have been wondering for a long time if Washington State's gun registry with the DOL is legal because sometime in the 1930s all pistol transfer copies were sent to the DOL (Director of Licenses) to be stored. But by 1983 the Chief of Police (COP) took over storing gun transfer records up until 1994 where it was transferred back to the Department of Licensing.

The Firearm Owners Protection Act of 1986 (FOPA) makes it illegal for the National Government or any State in the Country after 1986 to keep any sort of database or registry that ties firearms directly to their owner. So what I am saying is did Washington State lose its right to recreate a pistol registry in 1986 and also was no longer grandfathered in? So between 1983 and 1996 there was a gap where the Chief of Police stored all pistol records not the DOL.

Member awshoot did more research on this subject a year or so ago and hopefully he can add more info.

Sadly, I think the consensus is that the registry provision applies to the Feds and not the states (though the Feds have not adhered to it all that strictly: Firearm Owners Protection Act - Wikipedia ). The language is: 18 U.S. Code § 926 - Rules and regulations

No such rule or regulation prescribed after the date of the enactment of the Firearms Owners' Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.

I think what tripped me up at first was the bold language which only says the Feds can't store records in its own facilities, or a state's facilities, or a town/county facility, etc. The word "state" was so tantalizingly close to what we want. The part in red is the registration prohibition and because of the way this is written (applies to the laws of "this chapter", i.e., the Federal firearms laws), it only prohibits the Feds from establishing a registry.

We gave up new automatic firearms, got some travel rights, and a registry restriction the Feds have ignored or worked around and which has no real teeth because the states can just take over. And to name it the "Firearms Owner's Protection Act" -- very deceptive marketing.

 

[awshoot]

....
I think what tripped me up at first was the bold language which only says the Feds can't store records in its own facilities, or a state's facilities, or a town/county facility, etc. The word "state" was so tantalizingly close to what we want. The part in red is the registration prohibition and because of the way this is written (applies to the laws of "this chapter", i.e., the Federal firearms laws), it only prohibits the Feds from establishing a registry.
...

Still, I wish someone would try a lawsuit. The counterpoint to my depressing reading above, is that the portion in red is almost a new sentence by virtue of the use of the word "nor" and it is far more general in application than what precedes it. Secondly, if people in Kansas can be prosecuted for buying purely locally made silencers under the theory that buying local depresses the interstate market and thus affects interstate commerce (*), it seems the Federales' laws are inescapable and the same should be true when they do something good. Thirdly, by not including states in the langauge, that provision of the statute is virtually meaningless from a practical standpoint, and the legislature is presumed to not write useless words.

(*) Other State - "The rising threat of 'gun sanctuaries'"

 

[Dwesson]

Still, I wish someone would try a lawsuit. The counterpoint to my depressing reading above, is that the portion in red is almost a new sentence by virtue of the use of the word "nor" and it is far more general in application than what precedes it. Secondly, if people in Kansas can be prosecuted for buying purely locally made silencers under the theory that buying local depresses the interstate market and thus affects interstate commerce (*), it seems the Federales' laws are inescapable and the same should be true when they do something good. Thirdly, by not including states in the langauge, that provision of the statute is virtually meaningless from a practical standpoint, and the legislature is presumed to not write useless words.

(*) Other State - "The rising threat of 'gun sanctuaries'"

Wickard v Filburn was a bit of an abomination and has been perverted by the courts to cover everything. I haven't read the Kansas court case regarding the suppressors but I imagine that even if you made your own versus buying one locally (only for use in the state) they would still come after you with the same precedent.