USA TODAY: Feds issue 4,000 orders to seize guns from people who failed background checks

How do you not know your behavior has created a problem with NICS? Are we saying the average gun purchaser is too uninformed the legal complaints against them for their actions will restrict their ability to buy guns?

Of course, coming from the side of the equation where the DOD even has my DNA sample, and I can't get away with "I dindu nuffin!" how is it these stoppage issues are being handled after the fact? You do the crime then it goes into NICS, right?

Well, as we have found out, not so much. The system is fraught with bureaucratic inefficiencies.

So, somebody has to go back and get the gun? Umm, sounds like a dynamic entry team experience, or, do you call them up on the phone and say, please come down and turn it in?

Considering this could be a year later - you're going to hear "I sold it, it's in a pawn shop, my uncle borrowed it, the ex has it now, it was stolen out of my truck, I lost it on a bet," and the ever classic "it fell out of the boat in a tragic hunting accident. I sure miss that gun."

Of course you might well ask how a gun was lost overboard while marlin fishing over the Marianas Trench, but that's up to others to prove. Point being that the article is just churning clicks for infotainment. About the only real concern is the angst over civil rights on internet boards.

Since we haven't read of the ATF burning down compounds out in flyover land trying to recover a Stevens .22 which was gifted to a grandson while somebody's raging divorce settlement clouds the ownership, I'm not losing sleep over it. There's no "smoking gun" to point to in this article to support the contention it's a real problem. Give us names, dates, and show casings marked at the scene and I'll check back.

Be advised the media is not above trying to popularize "rumors of wars" and how that fits into the current timeline.

milemaker13 said:

I think the take away here is that our current gun control laws serve only to annoy and harass legal, responsible gun owners & buyers. If the BGC was ment to actually prevent prohibited people from obtaining firearms I don't think it would allow releasing if no response after 72 hrs.

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It's the National Instant Criminal Background Check System. Only a government apparatchik would think 72 hours is "Instant". Diane Feinstein and Hillary Clinton have been pushing for years to allow it to go longer. If it were allowed to go longer than 72 hours, a simple staffing budget cut could stop all gun sales.

If this seems far fetched, consider that there is a program in place to restore gun rights to non-violent felons. No restorations have taken place in years because funds for staff have been cut.

Overall; I'm in support of them going after "Failed" purchase attempts.... I've wondered for YEARS why there seems to be no penalty for "Trying" by a felon or other restricted person...
I think prior administrations went light on that, because these guns getting through the system would only support their position of needing further regulation. The really difficult thing to understand is how the other side, thinks that drug dealers, hardened criminals, etc. wont / cant just get them on the street, thereby foregoing ANY law or ANY system of regulation.... (AKA Criminals!)

Further, there seems to be lots of clues that perhaps the NICS paperwork doesn't go away in the Federal System as it;s supposed to & those that thought / think that it's a de-facto gun owner registration might have more merit than we'd all like.

Jim Watson said:

I think a lot of "delays" and "computer shutdowns" are just their little way of reminding us who is In Charge.

But errors do occur. I was denied a Secret security clearance because they did not check beyond names. And I have a fairly common name. Took my agency installation manager and I don't know how much higher up the chain of command to get it straightened out and me cleared to do my job.

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I'm pretty sure that's how the FBI background check works. I have a common name and I generally get delayed. You are more or less a restricted person until none of the information on the 4473 matches that of any of the actual restricted people. That takes awhile and often involves additional searches. I'm sure when my name goes to the FBI the screen turns red. A NICS check isn't that big of a deal. After 911 I had a very hard time making a flight. I had to go to the airline ticket agent and I got delayed up to an hour while they figured out if I was truly the person or persons on the no fly list. The last 10 years it hasn't been a problem.

Everyone is a restricted person in one form or another these days until a computer says you're not. You would be amazed how much information gets passed to LE thru your DL on a traffic stop. My CPL is one of the things the WSP can see.

NIGHTLORD40K said:

The risk is of civil litigation.

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There is ALWAYS a risk of civil litigation even if the shop was following the law to the letter.

Hokkmike said:

Handguns too?

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Yup.

It is hard to put a rifle in your pocket.

Further, there seems to be lots of clues that perhaps the NICS paperwork doesn't go away in the Federal System as it;s supposed to & those that thought / think that it's a de-facto gun owner registration might have more merit than we'd all like.

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There are some safeguards in place to insure that won't happen.

(4) The Tiahrt Amendments impede enforcement of the gun laws by requiring most background check records to be destroyed within 24 hours, and by barring the Government from requiring annual inventory audits by owners of gun shops.

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https://www.congress.gov/bill/114th-congress/house-bill/1449/text

This bill is trying to repeal this amendment. As long as it is enforce the fed won't risk losing ATF funding. I believe there are some heavy fines and even imprisonment for any bureaucrat that is responsible for not destroying that information within 24 hours.

Wait a minute! These people FAILED a BG check and wouldn't have been authorized if it had come back within 72 hours. The 72 hour automatic release was an attempt to keep the Feds from purposely slowing down the whole procedure.
Wouldn't a better solution be levying a daily fine, to be paid directly to the applicant, for each day that a "Proceed" is delayed. This should provide quite an incentive to get the system working right in the first place.

(Actually this could turn into quite a money-maker for those with a common name...)

Nope. The real question is why do they think criminals are getting a background check in the first place. And why are so many background checks failing to show the applicant should have failed? Plus why/how does the FBI have the time and resources to be doing subsequent further checks?
The other question is if the ATF is confiscating legally obtained firearms, are they compensating the buyer for the loss of funds?
And then there's the recent incidents where the maniac passed the background checks.
"...Owning and carrying a gun is a right...." Owning is a right. Carrying is not.

taliv wrote:
if the ATF didn't consider them dangerous, maybe they shouldn't be confiscating them. hmm...

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That logic is specious. When an agency doesn't have enough agents to work all the cases they're given, they prioritize. The ones who pose an immediate danger become a higher priority than the ones who are only potentially dangerous.

can you imagine buying a gun and then a year later having an ATF swat team show up to confiscate it? presumably without compensation. though the article doesn't mention it, one imagines they would have some sort of search warrant and confiscate all the guns they find, not just the one on the NICS check.

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It's not a SWAT team. It's a couple of guys wearing dockers and polo shirts.

And, yes, they will have a warrant or equivalent document.

And, yes, since a prohibited person cannot lawfully own ANY gun, they will confiscate any weapons that are found.

And, no, there will be no compensation paid since the gun is being held as evidence for use during the trial of the accused and that doesn't constitute a "taking".

The bottom line is that the law establishes the criteria under which someone may legally possess a gun. The prohibited person knows they are a prohibited person (or in the rare circumstance that they might not "know", they certainly have reason question it and a duty to inquire before they fill out the paperwork) and in the case where the sale is allowed to proceed because a determination wasn't made within three days, the sale remains conditional on the ultimate results of the background check. None of this should come as any surprise to the person in possession of a gun they were not legally allowed to have in the first place.

Havok7416 wrote:
If there is no response within 72 hours, the gun can (should) be turned over to the buyer. It basically defaults to an approval.

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No. It doesn't "default" to an approval. The delivery of the gun is allowed to proceed, but the approval (or denial) remains contingent upon the ultimate results of the background check.

Sunray wrote:
And why are so many background checks failing to show the applicant should have failed?

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First of all, go back and read the article. The background checks aren't failing to show the applicant should have failed. The background check is not being finished within three days and delivery of the gun is allowed to proceed if the results aren't back in three days. The system is properly showing that the applicants are prohibited when the check is completed.

"so many"? Of the literally millions of background checks run every year; including the hundreds of thousands run on Black Friday alone this year, 4,170 delayed checks came back as prohibited. That's about 0.13%. And you're trying to make a scandal out of that?

CoalTrain49 said:

I'm pretty sure that's how the FBI background check works. I have a common name and I generally get delayed. You are more or less a restricted person until none of the information on the 4473 matches that of any of the actual restricted people.

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Huh, guess I will never curse my unusal last name again. My background checks typically take 5-10 min. Assuming your thought process is correct, that is probably why!

Sunray said:

Owning is a right. Carrying is not.

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Unaliable rights. Just because its not in the constutition doesn't mean you have no natural right to self defense. There's quite a few unaliable rights not covered in the constitution, which the 10th amendment was supposed to protect. Not a fan of the federal government crapping all over everything just because it's not in the constitution (and in many cases that doesn't matter either).

Sunray said:

"...Owning and carrying a gun is a right...." Owning is a right. Carrying is not.

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Maybe I read you wrong, and I also realize that you are only a subject of the Crown in Canada, but here in the United States the 2nd Amendment reads "keep and bear arms", i.e. owning and carrying are both rights that free men enjoy here.

hdwhit said:

The bottom line is that the law establishes the criteria under which someone may legally possess a gun. The prohibited person knows they are a prohibited person (or in the rare circumstance that they might not "know", they certainly have reason question it and a duty to inquire before they fill out the paperwork) and in the case where the sale is allowed to proceed because a determination wasn't made within three days, the sale remains conditional on the ultimate results of the background check. None of this should come as any surprise to the person in possession of a gun they were not legally allowed to have in the first place.

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Why would you "inquire" if you don't know, but think you are perfectly able to own a gun? And I was always filling out the paperwork while the NICS check was taking place, per the FFL holder's request. And not coming as a surprise presupposes somebody else didn't screw up, be it the ATF, another office, mistaken identity, or simply a jurisdiction, like we've all heard of, doing something to raise a red flag. This opens a whole new world to those agents that may have to go and confiscate all those weapons from a poor soul that is just now starting the ball rolling on his complaints/lawsuits against whatever entity blocked his sale.

NIGHTLORD40K said:

The risk is of civil litigation. Even if a shop follows all the rules and gets an approval, it has become standard practice for shooting victims lawyers to name the selling dealer, firearms distributor, and gun manufacturer (and anyone else tangentially involved who has money) as defendants in their wrongful death suits.
It would go worse for the shops settlement amount (cuz, once again its all about the Benjamin's) if they were able to argue that the shop was negligent in delivering the weapon to someone who wasn't supposed to have it, despite the fact that they were perfectly within their rights to do so.......

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There is going to be civil litigation no matter what. If the stores you referenced did not deliver the merchandise for any number of years afterwards (even though they were following the exact letter of the law) they will be included in civil litigation.

It is truly absurd that a legitimate businessman, and one holding untold numbers of licenses from local to federal agencies, would get into any trouble for OBEYING the law.

EmGeeGeorge said:

It has more to do with firearms transferred to buyers after the 72 hour period with no response from NICS.
They actually never received the “go ahead”.

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You can do the transfer if you receive no answer back after 72 hours on a 'delay' response from NICS. I work at WalMart, and their policy is even with the 72 hour rule, no firearm is transferred until the OK comes back from NiCS.

'"...Owning and carrying a gun is a right...." Owning is a right. Carrying is not.'

In your country, Sunray, in your country. I do believe the word bear means (aside from all those fuzzy black and brown things you have running around up there, which should be reason to bear arms there, also) carry. Ref. US Bills of Rights, 2nd Amendment. And obviously, we are talking about the US here.

natman said:

It's the National Instant Criminal Background Check System. Only a government apparatchik would think 72 hours is "Instant". Diane Feinstein and Hillary Clinton have been pushing for years to allow it to go longer. If it were allowed to go longer than 72 hours, a simple staffing budget cut could stop all gun sales.

If this seems far fetched, consider that there is a program in place to restore gun rights to non-violent felons. No restorations have taken place in years because funds for staff have been cut.

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A very good point. Glad this is in place.

natman said:

It's the National Instant Criminal Background Check System. Only a government apparatchik would think 72 hours is "Instant". Diane Feinstein and Hillary Clinton have been pushing for years to allow it to go longer. If it were allowed to go longer than 72 hours, a simple staffing budget cut could stop all gun sales.

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New York state uses the "instant" NCIC on background checks for a restricted carry permit. After getting a purchasing permit. Wait time is measured in months if not years. Same in New Jersey. Apparently the "instant" definition is fluid.

natman said:

If this seems far fetched, consider that there is a program in place to restore gun rights to non-violent felons. No restorations have taken place in years because funds for staff have been cut.

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Rights of non-violent felons get restored all the time. I am not sure where you are getting it hasn't happened in years.

Sistema1927 said:

Maybe I read you wrong, and I also realize that you are only a subject of the Crown in Canada, but here in the United States the 2nd Amendment reads "keep and bear arms", i.e. owning and carrying are both rights that free men enjoy here.

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There are several US states who would violently disagree with you. A restricted permit in NY only allows you to carry from the home to the range, and back. Some counties require you have the restricted permit for a minimum of 1 year before even applying for the unrestricted. The whole process for having and carrying a handgun concealed in that state could be 2 years or more.

entropy said:

You can do the transfer if you receive no answer back after 72 hours on a 'delay' response from NICS. I work at WalMart, and their policy is even with the 72 hour rule, no firearm is transferred until the OK comes back from NiCS.

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Big box stores usually have that policy of ignoring the 72 hour allow and require the NICS approval. I tried picking up a shotgun from Academy years ago when I unknowingly had a felony warrant and got a delay. They would not allow me to come back 72 hours later without that approval from NICS.

Allow me to begin by saying that I began working in gun shops long before NICs existed, worked through the roll out of NICs and then the early years of refinement, but have not worked in a gun shop for the past 10 years. However, since a lot of folks seem to be interested in this topic and I had some experience, I thought it might be of some interest. Each of the places I worked had it's own policy regarding the 72 hour waiting period. Here are the variations: 1. Shop would not release firearm to customer until NICs approval was received regardless of how long it took; 2. If approval not received after 72 hours, shop employee called customer to say he/she could pick up firearm; 3. If approval not received after 72 hours, do nothing unless the customer calls to inquire; 4. If approval not received in 72 hours, do not release the firearm unless you personally know the customer and he/she has previously been approved (this one seems safe for the FFL but it didn't work out so well a couple of times) 5. Never transfer a firearm to a customer who was not immediately approved by NICs, including delays that were later approved. These ranged from big chain stores to little mom & pop places. In each case, the FFL holder didn't want to endanger his/her license, but the degree of caution seemed to be based on a mixture of concern for not loosing the license and how badly they wanted to make a sale. Some of the big chains, for example, only cared about making the sale, so their policy was to make that call after 72 hours and get the money as soon as possible and even remind the customer that he/she could pick up one or two more firearms since the "transaction" hadn't officially been completed yet.

In any event, I had at least four "retrievals" that I remember. That is where the firearm was turned over to the customer, either after NICs approval or after the 72 hour waiting period and having received no word from NICs. I can't remember all the details but I do remember that first one was a little tense. ATF simply called the shop and told us "you have to go and get this firearm back." There was no explanation, nothing other than we had to do it! Well, it was a first time customer which meant we didn't know the person or how he would react to us "demanding" that he return his firearm. We talked it over in the shop and decided the best approach would be to call the customer, simply tell him everything we knew -- which was almost nothing -- and politely ask him to return the firearm. That's what we did and to our surprise, he politely agreed. We gave him a copy of a little pamphlet that ATF had about a customer's options when he/she was denied. He appealed and after about two years got it all straightened out. I also remember that there was a common thread in all of the "retrievals" -- the initial delay was the result of missing or partial records in the NICs database. After the third or fourth "retrieval," the folks at NICs explained that in most of these cases, there was some small snippet of information in the NICs database that led to the delay. For example, there might be a record in the database that the NICs people can see that indicates this person was arrested for a felony, but no indication if the person was convicted. So the NICs people have to contact the arresting agency and ask for a clarification. The arrest could have been fifty years ago and asking a sheriff in a small county to dig up the records from fifty years ago does not get an immediate response. In other cases, the problem was within the federal government. For example, we had folks that had classified clearances at one time but those clearances were "revoked." All the folks at NICs see is that this person did something to get his/her clearance "revoked" without an explanation, so the NICs agent has to contact the federal agency involved to learn of the details. Most of the time the person simply retired or was reassigned; the revocation was not a punishment for a crime. One other case of a retrieval that I recall was with a customer that had ordered 5 AK receivers from a manufacturer and we were the transferring FFL. In this case, the folks at ATF had been investigating/reviewing the receivers with the knowledge of the manufacturer and finally decided, after several months, that the receivers were not legal. The manufacturer gave ATF a list of customers and FFLs that had ordered or been shipped receivers; ATF then contacted the shops but not the customers and demanded the receivers be "retrieved." ATF didn't offer any explanation, so we called the customer, who was a little upset since several months had already passed, but he agreed to return them. He then called the company, which explained the situation to him and eventually shipped ATF approved receivers to us to transfer to the customer. Hope this helps shed some light on "retrievals."

herrwalther said:

There are several US states who would violently disagree with you. A restricted permit in NY only allows you to carry from the home to the range, and back. Some counties require you have the restricted permit for a minimum of 1 year before even applying for the unrestricted. The whole process for having and carrying a handgun concealed in that state could be 2 years or more.

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Just like our neighbors to the north, those states treat people like subjects and not as free citizens. How sad that what is so clear in our founding documents is so thoroughly disregarded.

herrwalther said:

natman said:

If this seems far fetched, consider that there is a program in place to restore gun rights to non-violent felons. No restorations have taken place in years because funds for staff have been cut.

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Rights of non-violent felons get restored all the time. I am not sure where you are getting it hasn't happened in years.

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I was referring specifically to the "Relief from Disability" program, designed to allow individual felons to have their cases reviewed. While the program is still on the books, funding for individual background checks has been cut since 1992.

"Since 1992, Congress has prohibited ATF from expending appropriated funds to investigate or act upon applications for relief from federal firearms disabilities."

https://www.federalregister.gov/d/2017-17410/p-18

I meant this as an example of how a budget cut can cripple a program without changing the law. I didn't mean to imply that that there is no way to get gun rights restored.

natman said:

If this seems far fetched, consider that there is a program in place to restore gun rights to non-violent felons. No restorations have taken place in years because funds for staff have been cut.

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herrwalther said:

Rights of non-violent felons get restored all the time. I am not sure where you are getting it hasn't happened in years.

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The program to restore rights under 18 USC 925(c) for federal convictions was de-funded in 1992 and subsequent years and there have been no federal restorations since that time.

See Treasury Department Appropriations Act, 1993, Pub L No 102-393, 106 Stat 1729, 1732 (1992) ("[N]one of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 USC 925(c).").

From the Criminal Resource Manual for United States Attorneys:

With respect to Federal felony convictions, the Supreme Court declared in Beecham v. United States, 511 U.S. 368 (1994), that only Federal law can nullify the effect of the conviction through expungement, pardon, or restoration of civil rights. This is so, the Court ruled, even though there is no Federal procedure for restoring the civil rights of Federal felons.

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Ah I see now. I know of several people who have had their rights restored (specifically voting) at state levels in Alabama and Florida. None of them were "gun people" so they weren't as interested in getting cleared to buy firearms again. I had assumed that with voting rights, gun rights came back as well. Thank you gc70 and natman for clarifying.