Freddie Firearms Buyer (Freddie) is a law-abiding U.S. citizen who is not prohibited under Federal or State law from possessing firearms. Unfortunately, however, Freddie was arrested awhile back. Although Freddie was never charged with a crime, let alone prosecuted, his record at the Federal Bureau of Investigation (FBI) now – correctly – shows that Freddie was arrested on that one occasion.
Notwithstanding his arrest, Freddie was never formally charged with a crime. Therefore, the Court which would have handled Freddie’s case, had criminal charges been filed against him, was never informed of Freddie’s arrest and, consequently, never initiated a court case, the disposition of which could have then been reported to the FBI. Accordingly, Freddie’s FBI record still reflects – correctly – that Freddie was once arrested. There is, however, a glaring absence of any case disposition information.
In other cases, similar to Freddie’s case, many courts have destroyed older records, making the contents of those records forever unattainable.
 | Several years have now passed since Freddie’s arrest and he decides to purchase a firearm. Freddie goes to his local gun store to complete the transaction and completes an ATF form 4473, checking all the appropriate boxes to assert that he is not prohibited from acquiring a firearm. The Federal Firearms Licensee (FFL) at the gun store submits Freddie’s firearm transfer request to FBI’s National Instant Criminal Background Check System (“NICS”). Shortly thereafter, the FFL informs Freddie that the FBI has “Delayed” its final determination on Freddie’s request to acquire a firearm. |
In order to prevent individuals who are prohibited by law from purchasing firearms, the Brady Handgun Violence Prevention Act of 1993 directed the U.S. Attorney General (“AG”) to establish a background check procedure that FFLs would be required to follow in determining whether the transfer of a firearm to a potential buyer would violate federal or state law. The AG thereafter established the NICS, which is managed by the FBI Criminal Justice Information Services (“CJIS”) Division’s NICS Section.
Upon receiving a form 4473 firearms transfer request, the NICS Section assigns a NICS Transaction Number (NTN) to the inquiry, gives that number to the FFL, and then searches three electronic databases – the Interstate Identification Index (III), the National Crime Information Center (NCIC), and the NICS Index – to determine whether state or federal records establish that the buyer is prohibited by law from receiving a firearm. If the search yields no disqualifying information, the NICS Section provides a “Proceed” response to the FFL. If at least one record is found which establishes that receipt of a firearm by the prospective buyer would violate Federal or State law, the NICS Section provides a “Denied” response to the FFL.
If, however, the NICS Section locates a record that requires more research to determine whether the prospective buyer is disqualified from possessing a firearm by Federal or State law, it provides a “Delayed” response to the FFL. In the “Delayed” response scenario, the transaction remains in “Open” status, and the FFL may not complete a transfer unless the NICS Section provides a follow-up “Proceed” response, or three (3) business days (exclusive of the day on which the request was made) elapse and the NICS Section does not provide a “Denied” response.
An “Open” transaction is considered a non-cancelled transaction where the FFL has not been notified of the final determination, which gives the NICS Section time to continue researching
potentially prohibiting records regarding the buyer. Still, if no final determination is communicated, the FFL is not prohibited from transferring a firearm to the buyer after three (3) business days have elapsed since the FFL provided information about the buyer to NICS.
However, an FFL who transfers a firearm to a buyer after the three (3) business day waiting period would run the risk of being sued if the buyer were ever to use the transferred firearm to unlawfully injure a third-party.
A responsible FFL (which are the vast majority of FFLs) will decline to transfer a firearm to a buyer following the three (3) business day waiting period, where the NICS response is “Delayed.” Accordingly, it logically follows that a “Delayed” response is tantamount to a “Denied” response.
Although a federal statute exists which allows a person to judicially challenge a Form 4473 denial (‘Denied” response), federal law currently does not offer any such judicial remedy for persons whose Form 4473 transfer requests are “Delayed.” (Likewise, there currently is no judicial remedy for an improper or erroneous denial of a Form 4 (NFA items) transfer; however, that is a topic for another day).
In a federal lawsuit framed as challenging the denial of an individual’s repeated – and erroneous – “Delay” of his attempts to acquire firearms via a FFL and Form 4473, a situation analogous to that of Freddie Firearms Buyer, a NICS employee testified that:
Upon receiving a form 4473 firearms transfer request, the NICS Section assigns a NICS Transaction Number (NTN) to the inquiry, gives that number to the FFL, and then searches three electronic databases – the Interstate Identification Index (III), the National Crime Information Center (NCIC), and the NICS Index – to determine whether state or federal records establish that the buyer is prohibited by law from receiving a firearm. If the search yields no disqualifying information, the NICS Section provides a “Proceed” response to the FFL. If at least one record is found which establishes that receipt of a firearm by the prospective buyer would violate Federal or State law, the NICS Section provides a “Denied” response to the FFL.
If, however, the NICS Section locates a record that requires more research to determine whether the prospective buyer is disqualified from possessing a firearm by Federal or State law, it provides a “Delayed” response to the FFL. In the “Delayed” response scenario, the transaction remains in “Open” status, and the FFL may not complete a transfer unless the NICS Section provides a follow-up “Proceed” response, or three (3) business days (exclusive of the day on which the request was made) elapse and the NICS Section does not provide a “Denied” response.
An “Open” transaction is considered a non-cancelled transaction where the FFL has not been notified of the final determination, which gives the NICS Section time to continue researching
potentially prohibiting records regarding the buyer. Still, if no final determination is communicated, the FFL is not prohibited from transferring a firearm to the buyer after three (3) business days have elapsed since the FFL provided information about the buyer to NICS.
However, an FFL who transfers a firearm to a buyer after the three (3) business day waiting period would run the risk of being sued if the buyer were ever to use the transferred firearm to unlawfully injure a third-party.
A responsible FFL (which are the vast majority of FFLs) will decline to transfer a firearm to a buyer following the three (3) business day waiting period, where the NICS response is “Delayed.” Accordingly, it logically follows that a “Delayed” response is tantamount to a “Denied” response.
Although a federal statute exists which allows a person to judicially challenge a Form 4473 denial (‘Denied” response), federal law currently does not offer any such judicial remedy for persons whose Form 4473 transfer requests are “Delayed.” (Likewise, there currently is no judicial remedy for an improper or erroneous denial of a Form 4 (NFA items) transfer; however, that is a topic for another day).
In a federal lawsuit framed as challenging the denial of an individual’s repeated – and erroneous – “Delay” of his attempts to acquire firearms via a FFL and Form 4473, a situation analogous to that of Freddie Firearms Buyer, a NICS employee testified that:
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The arrest is without any recorded disposition the NICS Section can obtain. The NICS Section cannot make a final determination of “proceed” or “deny” without this information. Therefore, unless the appropriate documentation is submitted by [State authorities] and the record is updated, any future firearm transactions by [Plaintiff] will be subject to a delay. The NICS Section has made its best effort to obtain information about the disposition of [Plaintiff’s] arrest and has not been able to complete this inquiry. Because the [State] generated the record, the NICS cannot alter, amend, modify, or otherwise change this record without the required information on this arrest’s disposition from [the State].
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The Court in this case articulated the legal issue: “The question before the Court is whether Defendants have shown as a matter of law that they have properly put a perpetual hold on the purchase of a firearm by [Plaintiff], or whether [Plaintiff] has established as a matter of law that he has erroneously been denied a firearm.”
The Court went on to explain:
The Court went on to explain:
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Even assuming [Plaintiff’s] arrest . . . was “potentially prohibitive” in July 2010, Defendants cannot justify the position that it remained “potentially prohibitive” when [Plaintiff] returned to [the gun store] in February 2011. The NICS Section had its opportunity in July 2010 to verify whether transfer of a firearm to [Plaintiff] would violate state or federal law based on the [subject] arrest. That it did not or could not do so precluded the NICS Section from finding the same record “potentially prohibitive” in a subsequent transaction or, by implication, in subsequent transactions ad infinitum.
The NICS Section, in short, was acting ultra vires when it informed [Plaintiff that, although it was “unable to obtain complete disposition information” about the [subject], the “potentially prohibitive” criteria would subject his “future firearms transactions . . . to a delay.” In doing so, the NICS Section erroneously shifted the burden to [Plaintiff] to contact [State authorities, who] presumably possessed the “potentially prohibitive criteria” and required him to submit “appropriate documentation” and/or update his “record.” Nothing in the regulations supports the NICS Section’s position that the prospective transferee must disprove the existence of a potentially disqualifying criminal record to avoid all future delays. (Emphasis added.) |
Translation: When denying a Form 4473 firearms transfer, the Government – not the gun-buying citizen – bears the burden to prove the potential transferee IS a Prohibited Person (a person who may not lawfully possess firearms); the potential transferee does NOT bear the burden of proving that he is NOT a Prohibited Person.
The Court continued:
The Court continued:
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In her affidavit, [the NICS employee] labors under this misconception. She concedes that [plaintiff]’s “arrest is without any recorded disposition [that] the NICS Section can obtain” – how [Plaintiff] could fare any better she does not say – but then [she] asserts that unless “appropriate documentation is submitted by [State authorities] and the record is updated, any future firearm transactions by [Plaintiff] will be subject to a delay” (emphasis added). In [the NICS employee’s] view, [Plaintiff] will be subject to perpetual delay in attempting to purchase a firearm, even though the NICS Section never acts within three days to deny the transfer. That, in a word, is tantamount to denial. (Emphasis added).
This is precisely the situation [Plaintiff] found himself in when he entered [the gun store] and tried to purchase another firearm. The [gun store] called the NICS Section, which initiated a background check, looked at the same [State] criminal record it had reviewed in [the past], returned a “Delayed” response, then inexplicably changed the “Delayed” response to “Denied.” Instead, the NICS Section should have told [the gun store] to “Proceed” with the transaction, since the available information “did not demonstrate that the transfer of the firearm would violate federal or state law.” |
Likewise in Freddie’s case. Because Freddie was merely arrested, and not prosecuted, there likely is no document still in existence (or which ever existed) – and which is reasonably available – which would prove that Freddie is not a Prohibited Person.
Nevertheless, the FBI and NICS persist in denying (often through “Delay” status) transfers of firearms to persons who are not prohibited by law from possessing such firearms. More (and expensive) litigation may someday change this situation; however, this is a legal battle that merits being waged.
Nevertheless, the FBI and NICS persist in denying (often through “Delay” status) transfers of firearms to persons who are not prohibited by law from possessing such firearms. More (and expensive) litigation may someday change this situation; however, this is a legal battle that merits being waged.
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The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.
Lapin Law Group, with its principal office in the Dallas-Fort Worth Metroplex, serves all 254 Texas counties.
Lapin Law Group, with its principal office in the Dallas-Fort Worth Metroplex, serves all 254 Texas counties.
