Legal Discussion: NICS Denials and 14th amendment

[skydve76]

This is not a request for legal advice.

I am seeing two main classes of people with regards to NICS denials (for firearms purchases or permits)

A) People who are denied completely out of error
B) People who were correctly denied and have a firearms disability, but have used due process to remove the firearms disability. However this person is still being denied despite the appropriate action be taken to remove them out of NICS.

In both cases, it seems the NICS system is "easy to get in" and "hard to get out". In both cases, someone is being denied and has to go through an appeal process.

Based on my research, which could be in error, a NICS denial appeal can take nearly a year to process. One can go to court, get a firearms disability removed in less than a month, but then has to wait 10-12 times longer to get out of NICS?

I'm curious, if there are any precedents in regards to NICS denials/appeals and due process.


In case type B, the appeals are not denied yet, but simply "held" for processing. I'm curious if a threshold has been determined for an amount of time before something is considered hindering due process.

I'm curious what type of legal action in theory, could help remedy this situation.

The NICS system is gladly accepting all state courts legal authority to put people into NICS, but is hindering (if not nullifying) their authority to remove those same people.



Thoughts or information on anything relevant is highly appreciated.

 

[blarby]

c) People who are rightly denied, but im guessing not the focus.....

 

[BSA1]

NCIC is the database which shows arrest and disposition of charges. The problem with it is garbage in garbage out.

The arresting agency enters the arrest. It is now up to the same agency to enter the deposition of the charge. The rub is departments are good at entering the arrest but lazy (neglect maybe) at entering the final disposition. The same applies for arrest warrants.

So when the instant check is called in all they know is what is showing up on NCIC. So it is up to the citizen to get the information corrected.

 

[bikemutt]

In the two cases I know of where firearm rights were restored, the attorney ensured the appropriate agencies were made aware of the restoration and would not let them off the hook until positive confirmation that records were updated and sent to the FBI had been received.

I could be wrong about this but it's not up to a superior court to send records to the FBI; the court hears the case, signs off on the restoration, that's it.

 

[mdThanatos]

Based on how my Municipal Court and PD work, the court sends the dispositions to the PD for their records, they are to update NCIC as BSA1 stated, but they are back logged and don't update it as they should. I know that the court does not do any record entries or modifications within NCIC, they just run checks for their cases, however they do get requests from other agencies, such as the FBI for certified records.

In terms of legal action to fix it, I doubt anything will because at least one database they check is broken and in order to fix it, a nationwide standard would need to be set and retraining and recertification of the operators would need to be done.

 

[Snyper]

There's no way to get firearm rights restored at the Federal level since the agency tasked with that duty hasn't been funded in decades.

Getting your rights back from the state alone really achieves very little

https://www.atf.gov/firearms/qa/the...-or-her-right-receive-or-possess-firearms-and

Although Federal law provides a means for the relief of firearms disabilities, since October 1992, ATF’s annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities submitted by individuals.

As long as this provision is included in current ATF appropriations, the Bureau cannot act upon applications for relief from Federal firearms disabilities submitted by individuals.

[18 U.S.C. 925(c); 27 CFR 478.144]

 

[Frank Ettin]

....Getting your rights back from the state alone really achieves very little...

That is incorrect. See 18 USC 921(a)(20), emphasis added:

(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.​

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

So if the disqualification under 18 USC 922(g)(1) is based on conviction of a state crime, a restoration of rights under applicable state procedures will remove that disqualification. The lack of funding for the federal restoration of rights program (18 USC 925(c)) affects only persons whose 18 USC 922(g) disqualification arises from "from the disabilities imposed by Federal laws", e. g., conviction of a federal crime.

 

[Jeff H]

That is incorrect. See 18 USC 921(a)(20), emphasis added:

​

So if the disqualification under 18 USC 922(g)(1) is based on conviction of a state crime, a restoration of rights under applicable state procedures will remove that disqualification. The lack of funding for the federal restoration of rights program (18 USC 925(c)) affects only persons whose 18 USC 922(g) disqualification arises from "from the disabilities imposed by Federal laws", e. g., conviction of a federal crime.

I'll agree with a little first hand knowledge from Ohio. We don't have expungement of adult records here in Ohio but we do have expungement of juvenile records.

Two close family members had juvenile felonies expunged and within weeks had successful firearm purchases and CCW license being issued. Recent changes in Ohio law started including juvenile convictions so this was a problem until they were expunged.

 

[skydve76]

So in my case, I had a record removed through a valid legal process that exists in my state and received a certified order removing the record.

However, due to technical issues they cant remove my record from the NICS system or whatever it is they do to make so I can pass a NICS check.

Because I cannot pass a NICS, they will not issue me a permit despite having a certified copy of the order removing the record. However, they also have not denied it either, they are just holding on to it. State law gives them 45 days, its about 90 now. 90 days isn't a big deal and maybe even 180 isn't either.

Im not sure if this is considered just a denial of 2nd amendment rights or also denial of my 14th amendment rights. While due process exists and I successfully used it, they are blocking me at the end of the tunnel.

The sad part is that this record probably should not even of been submitted in the first place. it doesn't matter of course, the record has been removed.

I have no idea how to proceed except to keep waiting. its very difficult to find lawyers that know this stuff.

 

[skydve76]

c) People who are rightly denied, but im guessing not the focus.....

Right, I mean people who are currently being denied incorrectly. Either by incorrect information, or correct information that was later removed through due process.

Really its the same boat but not sure if the internal processes for fixing it are the same.