Nics*****noobie*****

[lilsean95]

I'll make this quick.......LOL! So 13 years(1998) ago in my stupid younger years I was charged with 2 Counts of Thief by Deception which carries a 5 year setence, well after 4 months of court I had 1 count dismissed and another count knocked down to Facilitation to Thief by Deception a misdeameanor 12 months. The court has no stance on probation and I got 18 months probation and if no other dumb issue were to happen during the probation I would be okay.

Since then I have been fine I have bought 9 gun and 2 pistols always delayed but never denied. Well, all that changed in August I got denied not really a shock but have sent in my appeal, fingerprints and the court documents of my case. So, my question is what is the law I keep hearing all kinds of smoke.

The law as I read it is
"18, U.S.C. §922 (g) (1)Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.", but have had people tell me that the 18 months probation would be a issue and have read it but all the information that NICS has sent me shows no probation statements.

I am not frustrated just would like some clarity. Thanks all that answer.

 

[Sport45]

Welcome to The High Road!

How old were you in 1998?

I consider my 20's to by my "younger years".

 

[bikemutt]

I don't believe probation counts as imprisonment time, although I suppose with the right probation officer it may feel as if it is.

For example, DUI in WA is a Gross Misdemeanor. Sentencing is typically 365 days with all but one suspended. Persons convicted of DUI in WA must be placed on probation for 5 years. I know of several persons who have been convicted for DUI and none of them are prohibited persons with respect to firearms transfers.

Now there is a fine point about probation: there's Active probation and In-active probation. Under Active probation the offender is under close supervision and must report regularly to see a PO. Under In-active probation, the court is going to run your "rap sheet" from time to time in order to sense activities that would be a probation violation, no need to report to a PO.

I don't know if Active probation is looked at differently, that is, considered to be included in time sentenced.

 

[dogtown tom]

lilsean95 I'll make this quick.......LOL! So 13 years(1998) ago in my stupid younger years I was charged with 2 Counts of Thief by Deception which carries a 5 year setence, well after 4 months of court I had 1 count dismissed and another count knocked down to Facilitation to Thief by Deception a misdeameanor 12 months. The court has no stance on probation and I got 18 months probation and if no other dumb issue were to happen during the probation I would be okay. Since then I have been fine I have bought 9 gun and 2 pistols always delayed but never denied. Well, all that changed in August I got denied not really a shock but have sent in my appeal, fingerprints and the court documents of my case. So, my question is what is the law I keep hearing all kinds of smoke. The law as I read it is
"18, U.S.C. §922 (g) (1)Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.", but have had people tell me that the 18 months probation would be a issue and have read it but all the information that NICS has sent me shows no probation statements. I am not frustrated just would like some clarity. Thanks all that answer.

It would help to know your age at the time as well as your current state of residence (some states have their own "point of contact" instead of using the FBI NICS).

If the charge you were found guilty of carried a POSSIBLE sentence of more than one year you would be a "prohibited person", regardless of the actual time served. Probation does not count.

What did NICS tell you when you submitted your inquiry? They have five days after you submit your inquiry to tell you the reason you were denied.
If it is a question of identity all you would do is submit fingerprints and supporting documentation. If it is due to possible prohibiting information then you would need to submit documentation showing the disposition of your case.

<,,,,,,,,,,,,>

bikemutt ....I don't know if Active probation is looked at differently, that is, considered to be included in time sentenced.

It doesn't matter whether his probation was active or inactive............what matters is what was the MAXIMUM possible sentence he could have received.

If it was "a felony, or any other crime, for which the judge could have imprisoned you for more than one year".....he is a prohibited person and ineligible to purchase firearms from a licensed dealer.

 

[Jim K]

Watch that word "punishable." It does not mean what the sentence was, but what it could have been at the maximum. If I am convicted of strong arm robbery, and that crime is punishable by a 1-3 year prison sentence, but I have a good lawyer who gets the sentence reduced to six months and 12 months probation, the crime was still punishable by a 3 year sentence, and my conviction is on the books that way.

MrWesson, the FBI employees who do the check don't (can't) exercise discretion to "care about" any crime more than any other; they are not judges or jurors. They look only at the record.

As to "just buy a gun and find out", the problem is that it is illegal for a person not eligible to own a gun to attempt to buy one, so just filling out the 4473 could result in being arrested if the check results in a rejection. Some dealers will run the check before doing the 4473 to avoid that problem where there may be a question.

Jim

 

[bikemutt]

Watch that word "punishable." It does not mean what the sentence was, but what it could have been at the maximum. If I am convicted of strong arm robbery, and that crime is punishable by a 1-3 year prison sentence, but I have a good lawyer who gets the sentence reduced to six months and 12 months probation, the crime was still punishable by a 3 year sentence, and my conviction is on the books that way.

MrWesson, the FBI employees who do the check don't (can't) exercise discretion to "care about" any crime more than any other; they are not judges or jurors. They look only at the record.

As to "just buy a gun and find out", the problem is that it is illegal for a person not eligible to own a gun to attempt to buy one, so just filling out the 4473 could result in being arrested if the check results in a rejection. Some dealers will run the check before doing the 4473 to avoid that problem where there may be a question.

Jim

I'm not so sure a FFL has the discretion to "run the check" before doing the 4473. Just from overhearing FFL-to-NICS calls they sound pretty scripted to me, like right off the 4473.

Around here they won't make any call until 4473 is filled out, and money has changed hands, then if the transfer is denied they keep $40 for their trouble.

 

[stchman]

This whole thing sounds mighty fishy.

The OP had been getting a delay then all the sudden they get a deny?

From what I have read here are the only reasons you can be denied a firearm:

1. have been convicted of, or are under indictment for, a felony;
2. are fugitives from justice;
3. are unlawful users of, or addicted to, any controlled substance;
4. have been adjudicated as mental defectives or have been involuntarily committed to a mental institution;
5. are illegal aliens or aliens admitted under a nonimmigrant visa;
6. have been dishonorably discharged from the military;
7. have renounced their citizenship;
8. are subject to certain domestic violence restraining orders; or have been convicted of a misdemeanor crime of domestic violence.

The OPs criminal offenses sound as though one was dropped and the other was plea bargained down to a misdemeanor with 18 months probation.

Sounds like your state has a new computer system and your conviction was interpreted as a felony when in actuality you don't. Do you still have your court transcripts from 1998?

 

[dogtown tom]

Jim K ....Some dealers will run the check before doing the 4473 to avoid that problem where there may be a question.

Highly doubtful. (those that do won't be dealers for long)

Any dealer who runs an "unofficial" NICS check may be committing a crime.

If they want to keep their FFL and access to the NICS they don't make the call until after the customer has completed and signed the 4473 (the Form 4473 states this in the instructions). In order for the dealer to provide NICS the required information he would need to know:
Last name
First name
Middle name
Cadence (Jr,Sr, III,etc)
Place of Birth
Height
Weight
Gender
Birth date
Social security # (optional)
Race/Ethnicity
State of Residence
Country of citizenship
Type of firearm

NICS will then:
-give the dealer an "NTN" (NICS transaction number) that must be recorded on the 4473 and in the dealers bound book.
-NICS will also give a PROCEED, DELAY or DENIED response on the transaction. The dealer records this on the Form 4473.

The FBI keeps a record of DENIED transactions on file AND reports them to the ATF. During a compliance inspection the dealer may be asked for a copy of those 4473's from his denied transactions. 4473's from denied transactions are required to be kept on file for at least five years.


ATF & the FBI are VERY clear.....dealers CANNOT do "trial runs" of the NICS background check.http://www.atf.gov/publications/newsletters/ffl/ffl-newsletter-1999-09.pdf

 

[stchman]

I was under the impression that the NICS database is expunged every 24 hours.

 

[stumpers]

I have recently had a NICS issue as well and have been reading up on everything I can find and talking to people who know.

NICS was very quick with the reason for my denial, certainly within 5 business days. Without the reason, there's no way to know or go about fixing it.

That being said, if you were convicted of a state misdemeanor that carries a penalty of 1 year imprisonment, then you are ineligible to transfer firearms.

If you plead things down, or had charges dismissed, the FBI may be using incomplete data for their search.

I had charges dismissed, and the state of Wisconsin has the correct record and sells me handguns, but the FBI has the charges on file without the final disposition and I got a denial. So it behooves you to find out what the record in question is and send the FBI a certified copy of anything that proves you were not convicted of an offense that prohibits you from transferring a firearm.

Again, if you were convicted of a class of misdemeanor in a state that punishes that crime with a year's jail time, then there's nothing to be done about it and you are definitely prohibited.

Edit: Talking to a couple of my friends who are lawyers, I also learned that some states do have pretty stiff penalties even for misdemeanors - Massachusetts goes up to 2.5 years, while many states go up to a year. 4473 says "more than one year", so legally speaking if the crime is punishable by up to one year, the misdemeanor may not be prohibitive.

 

[bikemutt]

I was under the impression that the NICS database is expunged every 24 hours.

I think you are correct, NICS is cleared daily or something close to that. FFLs on the other hand, must hold on to the the paperwork for a longer period.

 

[bikemutt]

I have recently had a NICS issue as well and have been reading up on everything I can find and talking to people who know.

NICS was very quick with the reason for my denial, certainly within 5 business days. Without the reason, there's no way to know or go about fixing it.

That being said, if you were convicted of a state misdemeanor that carries a penalty of 1 year imprisonment, then you are ineligible to transfer firearms.

If you plead things down, or had charges dismissed, the FBI may be using incomplete data for their search.

I had charges dismissed, and the state of Wisconsin has the correct record and sells me handguns, but the FBI has the charges on file without the final disposition and I got a denial. So it behooves you to find out what the record in question is and send the FBI a certified copy of anything that proves you were not convicted of an offense that prohibits you from transferring a firearm.

Again, if you were convicted of a class of misdemeanor in a state that punishes that crime with a year's jail time, then there's nothing to be done about it and you are definitely prohibited.

Edit: Talking to a couple of my friends who are lawyers, I also learned that some states do have pretty stiff penalties even for misdemeanors - Massachusetts goes up to 2.5 years, while many states go up to a year. 4473 says "more than one year", so legally speaking if the crime is punishable by up to one year, the misdemeanor may not be prohibitive.

Mine was even more bizarre; neither WA nor FBI had a record of my offense (which was not a prohibited one), I filed a VAF because I was always delayed and noted the offense in my application. FBI says "how come we didn't know about that?". They investigate and has the arresting agency send them the record. That agency sends them the information on another guy, a career felon. That gets tucked into my record with a note saying I use this guy's name as an alias.

So instead of filling out a VAF honestly and getting a UPIN, I get denied, nice.

It's all cleared up now but what a mess that was. I now have little confidence LEAs are able to report things correctly or correct mistakes.

 

[dogtown tom]

stchman I was under the impression that the NICS database is expunged every 24 hours.

FBI NICS does expunge all transactions that were "Proceeds" at the close of the NICS business day.

Transactions that were "Delayed" are not expunged until they have been changed to a "Proceed" status.

Transactions that were "Denied" are not required to be expunged. That information would be needed in the event of a NICS appeal or criminal prosecution (when ATF kicks in your door, shoots your dog and gives out your email address to their rich Nigerian uncle)

 

[mgkdrgn]

I'm not so sure a FFL has the discretion to "run the check" before doing the 4473. Just from overhearing FFL-to-NICS calls they sound pretty scripted to me, like right off the 4473.

Around here they won't make any call until 4473 is filled out, and money has changed hands, then if the transfer is denied they keep $40 for their trouble.

Being an FFL, and having asked that question directly of ATF, I can assure you he does NOT have the "discretion" to run the check w/o a 4473 being filled out.

This WILL come back to Bite the FFL in the posterior IF the transaction in question is a DENY. On their next inspection, AFT will show up with all the DENYs, want to see the 4473's, and want to see where the guns in question went.

 

[mgkdrgn]

This whole thing sounds mighty fishy.

The OP had been getting a delay then all the sudden they get a deny?

From what I have read here are the only reasons you can be denied a firearm:

1. have been convicted of, or are under indictment for, a felony;
2. are fugitives from justice;
3. are unlawful users of, or addicted to, any controlled substance;
4. have been adjudicated as mental defectives or have been involuntarily committed to a mental institution;
5. are illegal aliens or aliens admitted under a nonimmigrant visa;
6. have been dishonorably discharged from the military;
7. have renounced their citizenship;
8. are subject to certain domestic violence restraining orders; or have been convicted of a misdemeanor crime of domestic violence.

The OPs criminal offenses sound as though one was dropped and the other was plea bargained down to a misdemeanor with 18 months probation.

Sounds like your state has a new computer system and your conviction was interpreted as a felony when in actuality you don't. Do you still have your court transcripts from 1998?

Or, their identity is confused with someone else who DOES have one of the above mentioned problems.

Could happen to ANYBODY tomorrow.

 

[mgkdrgn]

I was under the impression that the NICS database is expunged every 24 hours.

It is ... of "proceed" transactions. DENY's are not purged.

 

[lilsean95]

Thanks more Confused than ever!!!!!LOL

That being said, if you were convicted of a state misdemeanor that carries a penalty of 1 year imprisonment, then you are ineligible to transfer firearms.

See, this is what is confusing quotes like this. If you read the law and I have this is what it said "EXCEEDING" to go beyond in quantity, degree, rate, etc.: to exceed the speed limit. 2. to go beyond the bounds or limits of: to exceed one's understanding. 3. to surpass; be superior to; excel: Her performance exceeded all the others. Sorry for the definition but my confuse is people on here giving their opinion and not fact. So, you are wrong by definition and the law which is 18, U.S.C. §922 (g) (1)Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.", No disrepect "Stumper"

Dogtown Tom

What did NICS tell you when you submitted your inquiry? They have five days after you submit your inquiry to tell you the reason you were denied.
If it is a question of identity all you would do is submit fingerprints and supporting documentation. If it is due to possible prohibiting information then you would need to submit documentation showing the disposition of your case.

They have all my information court documents, fingerprints, and appeal form. I have nothing to hide from them and the easier I can make their job the better.

The denial was for and I quote "I have similar quality or like quality of a person that could or could not be me" LOL Really is this the best explanantion that the Feds could give me LOL. If I went to court and that was my defense the judge would laugh first and put me in the crazy house 2nd. I think I will wait the process out and stop listening to everyones opinion, but thanks for all the post. I have nothing but time and hell it hunting season time to sit in the wood and bow hunt.

Oh by the way there are 4650+ people with my name in just the MIdwest so i guess all of them are "prohbited" from purchasing a firearm becasue they all have similar quality or like quality as me!!!!

 

[bikemutt]

Huh?, they never said anything about quality to me. Well, who knows, maybe the keep changing the game.

Truth is they won't tell you much until they get the 'prints and run 'em. It's all part of privacy concerns, which makes sense I suppose.

 

[stumpers]

Yeah, lilsean95, if you read what I wrote, and I have, and read the pdf copy of the 4473 I did, you would know it asked:

"Have you been convicted in any court of a felony, or any other crime, for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation? (See Important Notice 6, Exception 1.)

Notice 6, Exception 1: "The transferee of a firearm should be familiar with 18 U.S.C. § 922. Generally, § 922 prohibits the shipment, transportation, receipt, or possession in or affecting inter- state commerce of a firearm by one who: has been convicted of a misdemeanor crime of domestic violence; has been convicted of a felony, or any other crime, punishable by imprisonment for a term exceeding one year (this does not include State misdemeanors punishable by imprisonment of two years or less)..."

So it seems I was mistaken on the misdemeanor anyway, it seems like the 4473 spells it out pretty well that state misdemeanors do not prohibit firearm transfers. I should haev looked further into the paperwork myself and not relied on others.

 

[lilsean95]

Stumper

No worries Stumper........it all confusing to us lay people that just want to hunt and shoot. The government is a turning and its up to us to determine the course of action by talking to our Congress men and women and Senators......Once again I appreciate all your help and like I said it is deer season in MI and bow hunting is my choice of sport right now I have all the time in the world to wait NICS out and get my gun and UPIN!!!!!!!!!!!

 

[stchman]

So if you are convicted of a state misdemeanor that CAN carry 1 year or greater than you are prohibited for LIFE for firearm transfers? That's as good as a felony.

I find that difficult to believe.

 

[bikemutt]

So if you are convicted of a state misdemeanor that CAN carry 1 year or greater than you are prohibited for LIFE for firearm transfers? That's as good as a felony.

I find that difficult to believe.

Many states have laws on the books where second amendment rights can be restored in spite of disqualifying convictions.

Redefining sentencing guidelines for misdemeanor convictions may well be a sneaky way of enrolling more citizens in the prohibited persons class. I find it troubling too.

 

[Art Eatman]

For now, let's go with this comment from the OP: "I think I will wait the process out..."