CA Senate Seeks Thumb Prints In Face of Latest FBI Fiasco
July 1, 2004

by Joseph P. Tartaro
Executive Editor

The California state Senate recently passed a bill that would require all ammunition buyers to provide a thumb print when each purchase is made. The thumb print is in addition to the identification and signature now required to be recorded for every ammunition purchase in the state.

The bill hasn’t been taken up in the state Assembly yet, but could be considered at any time.

Presumably the thumb print scheme is designed to provide irrefutable evidence if a criminal suspect denies having purchased ammunition that was found at, or linked, to a crime.

The thumb print scheme immediately drew condemnation from the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA) which called it “an insidious invasion of privacy.”

CCRKBA Executive Director Joe Waldron said that keeping records on ammunition sales has proven ineffective in fighting crime in the past. It was abandoned by the federal government years ago.

“It’s a waste of time and taxpayers’ money, but more importantly, this constitutes a serious privacy issue. If this measure dealt with something other than a gun control issue, the ACLU would be screaming about it,” Waldron added.

Senate Bill 1152 passed the California Senate by a vote of 22-16. The bill requires that “all vendors of ammunition maintain specified information” on ammunition buyers, including: (1) the date of the transaction; (2) the name, address, and date of birth of the buyer; (3) the buyer’s driver’s license or other identification number and the state in which it was issued; (4) the brand, type, and amount of ammunition bought or transferred; (5) the buyer’s signature; (6) the name of the salesperson who processed the transaction; and (7) “the vendor shall also at the time of purchase or transfer obtain the right thumbprint of the purchaser or transferee.”

The Senate bill says dealers would have to retain records on ammunition sales for at least two years. Those records, CCRKBA said, might be used as evidence in cases where people who are barred from owning guns and ammunition are charged with illegally buying them.

CCRKBA said gun rights groups fought similar proposals 10 years ago because they accomplished nothing. “It would appear that some California lawmakers are no smarter now than they were then,” Waldron said.

But if the California chapters of the ACLU aren’t screaming yet, other civil liberties organizations are. Among the groups expressing concern is the National Association of Criminal Defense Lawyers (NACDL), which points to the very recent case involving Brandon Mayfield, an Oregon attorney who was arrested and jailed as a material witness in the Spanish train terror attack in March, all because of a single fingerprint.

On May 24, the FBI was forced to apologize to Mayfield, saying it had erroneously identified his fingerprint as one on a bag of detonators found near the site of the deadly March 11 terror attack in Madrid, Spain. That’s when US District Court Judge Robert Jones in Portland freed Mayfield from federal control, ordered his files returned and unsealed records showing why prosecutors suspected Mayfield.

Mayfield, a Muslim convert, was cleared of any connection to the terror attack only after a pair of agents traveled to Madrid to examine the fingerprint and concluded that it was not Mayfield’s.

One of the released documents showed that Spanish authorities began questioning the FBI’s fingerprint conclusions three weeks before Mayfield’s arrest. An FBI affidavit said agents thought they had convinced Spanish police the FBI was right. However, the FBI was wrong.

According to The Portland Oregonian, Mayfield said his detention damaged his reputation, his law practice and his family. He said he was targeted because of his religious beliefs by a government overzealous in its fight against terror.

The government’s own motion to dismiss the case against Mayfield provided some interesting evidence of the technical problems with fingerprints.

“The Latent Print Unit (LPU) of the FBI Crime Lab examiner, based upon a thorough scientific analysis, determined that the latent print matched Mayfield. The fingerprint identification of Mayfield was subsequently verified by at least three additional examiners. One independent examiner, not employed by the FBI, was appointed by the court upon the recommendation of counsel for Mayfield and with the consent of the government. The independent examiner agreed with the FBI analysis.”

Prosecutors said in a court filing they acted to arrest Mayfield before the investigation was complete “because of the danger of premature disclosure and the potential loss of critical evidence.” Law enforcement officials said they were rushed to act because information about Mayfield had been leaked to the press in Europe.

“This is a cautionary tale of how the fear of terror can lead even well-meaning individuals to take precipitous action that can have a devastating impact on an innocent individual, eroding civil liberties and traumatizing a community,” said Steven Wax, the federal public defender for Oregon and Mayfield’s lawyer.

In a nine-page affidavit, FBI Agent Richard Werder outlined how a single fingerprint found led to Mayfield’s arrest. The affidavit was filed by prosecutors to obtain the warrant to arrest Mayfield as a material witness.

The government portrayed Mayfield as a potential terrorist because of his associations, Wax said.

“They were pointing to one or two instances where Mr. Mayfield knew somebody who knew somebody who knew somebody who was on an undisclosable terror watch list,” Wax said. “Part of our concern is how guilt by association could ensnare a completely innocent person.”

But it was the fingerprint that was critical to the case against Mayfield—and ultimately caused it to unravel. And the fingerprint screw-up at FBI—involving at least four FBI experts and an outside, independent examiner—was the real basis for Mayfield’s incarceration for two weeks. And for national press that all but convicted him of being involved in the terror bombing in Spain.

Mayfield blasted the government’s handling of the case, calling it “prejudicial and discriminatory in the extreme.” He said upon his arrest, agents alerted him that reporters were following his case.

“Notwithstanding the judge’s gag order, the government put out its theory and its facts while we were prevented from saying anything,” he said.

The Washington Post did a follow-up, focusing on the fingerprint problems.

Unlike DNA technology, said Simon A. Cole, a skeptic and author of Suspect Identities: A History of Fingerprinting and Criminal Identification, no one has quantified the error rate in fingerprinting—meaning there are no reliable estimates of how often the process implicates the wrong person. Cole, is an assistant professor of criminology, law and society at the University of California at Irvine.

Cole said courts should demand that fingerprinting experts study the error rate in their technique and reveal it, The Post reported.

But that’s not the end of the privacy invasion in California.

On June 12 The San Francisco Chronicle reported that an initiative proposition to take DNA from everyone arrest for a felony had qualified for the Nov. 2 ballot in California. Needless to say, the mandatory DNA sampling has stirred significant privacy fears.

The initiative was bankrolled by a man who lost his brother to an unknown serial killer.

Although the sponsor and backers of the measure say such a greatly expanded DNA database could clear up thousands of unsolved crimes, civil rights activists argue it would give the government access to too much information about too many people.

California already requires DNA samples from everyone convicted of a serious felony. Although the initiative allows people to have their DNA information pulled from the database and destroyed if they have been found innocent or released without charges, it requires a court order and a complicated stack of paperwork before it can be done.

The next time people talk about collecting thumb prints from everyone buying ammo, or DNA from every felony suspect, keep the Mayfield case in mind.