Gun purchase glitch raises questions
Del.'s small-arms advocates shocked over DSP recordkeeping
By LEE WILLIAMS • The News Journal • October 28, 2008
Delaware State Police stopped Alvina Vansickle from purchasing a .22-caliber pistol for self-defense because she was too old and a woman, said Superintendent Col. Thomas MacLeish. The outrage that followed led to the revelation that Delaware State Police had been keeping lists of gun buyers for years; state law requires them to destroy these records after 60 days.
Without so much as a traffic ticket, the 81-year-old Lewes resident should have sailed through the mandatory state police background check when she tried to buy a Taurus revolver from Charlie Steele's Lewes gun shop last August.
Problems started after Steele made the required phone call to state police for approval of the firearms transaction.
An employee in the state police Firearms Transaction Approval Program noticed Vansickle's age and gender, and brought the sale to an immediate halt.
Vansickle's application was then routed to Sgt. Benjamin Nefosky, who heads the firearms approval unit.
According to MacLeish, the transaction was halted over concerns "based upon age and gender."
"To be very honest with you, we have a legal obligation under the law to do approvals," MacLeish said. "We also have an obligation to make sure we're safe, and paying due diligence."
MacLeish said the initial call taker "was concerned this individual never purchased a weapon before. Age and gender caused her to take caution."
As to whether age and gender are included in the state statute as legitimate reasons to reject a firearms purchase, MacLeish stated, "No, they are not."
"I believe there was caution taken on behalf of the call taker," he said. "It was done without malice."
Vansickle's purchase was eventually approved -- 10 days after the initial application -- after she and the dealer were interviewed by police about the purchase. A normal delay is three days.
The sale eventually went through.
Government tracking feared
Word of the delay rebounded around Delaware's small-firearms community, eventually making its way to Dave Lawson, a retired state police lieutenant and firearms instructor. Lawson spoke to his former colleague Nefosky about Vansickle's dilemma, Lawson said.
Lawson said what Nefosky told him revealed there was a much larger problem in the firearms approval unit than keeping a small-caliber revolver out of the hands of an 81-year-old woman.
Lawson said Nefosky told him he searched seven years of firearms transaction records to see if Vansickle had ever bought a gun before.
Some gun owners fear any government agency that tracks gun purchases or keeps lists of who has them. They worry these lists could someday aid in weapons confiscation, fall into the wrong hands and serve as a road map for burglars and thieves, or result in increased scrutiny by law enforcement.
"I was totally drop-jawed," Lawson said. "I asked him how far back the records went. He didn't know. He didn't care. He felt she was possibly a threat because of her age, a threat to herself or her family. That's what the implication was. He was concerned that never having bought a gun before, why would she want one now, at 81?"
Lawson served in the State Bureau of Identification as a lieutenant, which includes the firearms approval section and other specialty units. He knew the law. Nefosky's concern about Vansickle's age and sex, he said, should never have come into play.
Lawson also knew the gun records should have been destroyed.
MacLeish would not allow Nefosky to be interviewed.
In an interview with The News Journal, MacLeish claimed all paper firearms records are destroyed every 60 days.
The electronic records, however, are another story.
"Our review of our electronic records indicated we had a glitch in the system, back to August 2005," he said. "They have since been purged."
The electronic records never posed a threat, MacLeish said.
"The info was in an electronic file that no one did anything with," MacLeish said. "We've since purged that file in its entirety.
Enter the National Rifle Association.
Civil rights of gun buyer at risk
John Thompson is president of the Delaware State Sportsmen's Association, the local affiliate of the NRA.
Several people told him of Nefosky's delay, and expressed their outrage about the list of gun owners maintained by the Delaware State Police.
Thompson, an attorney, had worked with state lawmakers in the early 1990s to craft the state's background-check law.
Legally, he said, Vansickle's reasons for wanting a firearm are moot, and he knew the lists were a problem.
"This suggests two violations: one is denial without cause, and the other is keeping records of gun purchases," Thompson said. "Under statute, the Delaware State Police are required to destroy any purchase records that involve approvals. Now they're maintaining lists of gun owners, which we think is inappropriate. We did not create this system to allow this to happen."
Vansickle's civil rights were violated, he said.
"There is nothing in the Second Amendment or the Delaware Constitution that says the right to own firearms is limited to people of a certain age," Thompson said. "We don't have any problem with age restrictions regarding children, but we don't think someone ought to arbitrarily decide people are too old to own guns."
Retired Dover police captain John Sigler is president of the National Rifle Association, a position once held by legendary actor Charlton Heston.
"I was literally shocked that such an event would occur in the state of Delaware," he said. "I am very, very troubled that an individual -- based on her age -- was denied the ability to defend herself."
Both Sigler and Thompson pointed to the recent Supreme Court decision District of Columbia v. Heller, in which the court found that the Second Amendment protects an individual's right to possess firearms for personal use, such as self-defense.
While Sigler expressed "the highest respect" for the Delaware State Police and MacLeish, he found it intolerable that the agency "has been keeping records they're not supposed to have, for at least seven years."
"That means that for seven years that office has been violating Delaware state law and thumbing their nose at the state Legislature," he said. "I certainly hope it's not true, but it appears that it is."
Sigler brought the goings-on in his home state to the attention of Bob Dowlut, NRA general counsel.
In a letter to MacLeish sent Aug. 28, Dowlut and the NRA requested two separate investigations: one to focus on Nefosky's denial, "and all other transactions of similar scope and nature." According to the letter, the second investigation should focus on who's responsible for keeping lists of gun owners in the state.
"NRA respectfully requests to be notified about all actions taken to correct this situation," Dowlut wrote. "At this time, there are a number of people urging the filing of a lawsuit to remedy this matter, however, taking of corrective steps immediately would be preferable to litigation for all concerned."
MacLeish said two internal investigations "have been initiated by myself, by the division."
Dowlut copied his letter to Gov. Ruth Ann Minner, who declined to comment for this story.
Elderly woman's husband speaks out
Vansickle's husband, who has legally purchased several weapons over the past several years, spoke on her behalf about the delay.
"Apparently, they thought she might shoot herself with it," said J.R. Vansickle, 83. "She has a clean record. There was no reason to turn her down. I lost both legs through diabetes. I'm in a wheelchair. We're an elderly couple. She wanted the gun for self-defense in our home."
The state police firearms unit was established as a result of the Brady Law, which took effect in 1994.
Nefosky supervises four criminal-history employees, who take calls from gun dealers around the state, and approve or deny the purchases based on the buyer's criminal history.
According to state police, during 2006 and 2007, the unit processed 21,304 transactions, which have resulted in 711 denials.
Dowlet told the newspaper that for police departments, the types of problems the Vansickle case exposed are extremely rare.
"Most police departments, when they put someone in charge of a unit like that, they need to be completely familiar with the law," he said. "There's an anomaly here, someone in the Delaware State police who wasn't following the law. Most police departments -- especially in our litigious society -- if that's what the statute says, that's how they enforce it."
