Question about NICS delay

[crsuribe]

Hey guys, didn't know where to post this so I did it here. This is also my first post. I've been lurking these forums for a while though..

I was delayed by NICS when trying to purchase a G.20SF. Initially the delay happened because my dealer didn't know what to answer when they asked him if he had seen proof that I had been a resident of the state for 90 days. He told them he had seen my driver's license but didn't know what else he needed to look at, and that's when they put me on delay.

Now, let me explain a bit more about my situation. I am a Lawful Permanent Resident or Green Card holder and have been in the States for 5 months now. My dad and wife are American citizens and I should be too but I never really did anything to pursue citizenship when I was younger (something I regret), just because I never thought I would move here since I had a very successful career where I came from and didn't think I would throw that away to move here. But I did and don't regret it at all.

Anyway, here is my concern..

My wife, who has been on psychiatric meds since she was 6 got her medications changed very abruptly. To make a long story short, this caused her to have a real bad mental episode and she flipped out, attacked me and then called the cops and told them a bunch of lies. When the cops came they called me upstairs and I talked to them very calmly and explained what happened, then they went and asked her if what I said was true and she admitted to it. Then we BOTH got arrested. AND the cops took my Ruger 10/22 for "safe keeping".

We spent 6 days in the County Jail waiting for initial hearing. Then, when we saw the judge, he released her on her own accord and set my bond to $5000 and put a restraining order on me. I had to pay $548 to get out of jail and find a place to live for a week until our next court date.

During this time, my wife, who was back to her usual self, talked to her public defender and explained everything that happened and showed proof of her mental problems and the therapy she's in, etc.. so when we went back to court, the attorney representing the state of Ohio met with her public defender and they decided to dismiss the cases under the condition that we went to a court-appointed mental health unit to be evaluated and follow any recommendations made by them.

The result of this evaluation was that the incident was an isolated one and that we needed no further treatment from them but my wife was told to continue with her regular therapy. And this meant that the cases were COMPLETELY dismissed and the whole thing was over.

In fact, I had her public defender file a written motion with the court to have my 10/22 released and the judge sustained the motion and stated "all legal firearms may be returned to the defendant". The Police department, when we showed them the court order to release my rifle, had no problem with it. They were actually really really nice and professional.

So, in theory, my eligibility to own firearms shouldn't be affected by this, right?

Well I'm concerned about this delay because if I get a denial from the NICS, I will have to appeal it and that's just gonna be a pain in the butt!

What do you guys think? Will I get denied? What should I do in that case? I've been waiting all my life to own my own handgun since they're banned where I used to live so this is a pretty important thing to me...

 

[NavyLCDR]

1. Wait and see what happens with the delay. Did you show the 90 days required residency proof? That is the first situation that needs to be cleared up.

2. If you are denied, you will have to go through the standard appeals process.

3. If your appeal is denied, you will have to get a lawyer to clean up your record.

4. Once that is all cleared up, get the Unique Personal Identification Number from NICS and submit a Volunteer Appeal File to NICS. The Volunteer Appeal File will put the court documentation releasing you to own firearms on file with NICS and prevent further delays, possibly.

My personal opinion is that your are screwed until you do step 3, but confirmation won't come of that until the delay turns into a proceed or deny and the results of the appeal if needed.

The FFL can transfer the gun to you if they don't hear back from NICS within 3 business days, but I doubt that they will - it's their choice.

http://ecfr.gpoaccess.gov/cgi/t/tex...v8&view=text&node=27:3.0.1.2.3.6.1.12&idno=27

§ 478.102 Sales or deliveries of firearms on and after November 30, 1998.

(a) Background check. Except as provided in paragraph (d) of this section, a licensed importer, licensed manufacturer, or licensed dealer (the licensee) shall not sell, deliver, or transfer a firearm to any other person who is not licensed under this part unless the licensee meets the following requirements:

(1) Before the completion of the transfer, the licensee has contacted NICS;

(2)(i) NICS informs the licensee that it has no information that receipt of the firearm by the transferee would be in violation of Federal or State law and provides the licensee with a unique identification number; or

(ii) Three business days (meaning days on which State offices are open) have elapsed from the date the licensee contacted NICS and NICS has not notified the licensee that receipt of the firearm by the transferee would be in violation of law; and

(3) The licensee verifies the identity of the transferee by examining the identification document presented in accordance with the provisions of §478.124(c).

 

[crsuribe]

Step 3- Meaning get a lawyer?

The only proof of residency I provided was my green card which says "Resident since 04/10/2010" and my driver's license which says "Issue date: 05/21/2010"

Both show I've been a resident for over 90 days.

In my own personal opinion, I think if there was anything related to the Domestic Violence charge then they would've denied me immediately. Or maybe not necessarily?

I can't wait to find out what's gonna happen.

Also, I can't afford a lawyer.

 

[mickeygrimreaperblueeyes]

Not to flaunt the Citizenship thing, but you have a green card and most states have the option to deny you on that alone. It's something to consider and if you have to appeal, like my wife did from a denial, then you can appeal it and find out exactly why it was held or postponed...NICS checks are conducted at the state level and then appealed at the federal level.

Just so you know, you can get your background run at your local P.D. and find out what is exactly on your record.

 

[crsuribe]

Could you please provide any sort of proof that a State can deny me based on me being a legal permanent resident? I do not believe this and would be very grateful if you could provide me with proof.

Thank you.

 

[dogtown tom]

crsuribe: ...Initially the delay happened because my dealer didn't know what to answer when they asked him if he had seen proof that I had been a resident of the state for 90 days. He told them he had seen my driver's license but didn't know what else he needed to look at, and that's when they put me on delay...

Shame on your dealer. All he needs to do is read the instructions on that Form 4473.

From Form 4473 (this is from Section B that is completed by the FFL)

Question 20c. All Aliens: Type and dates of documents that establish 90-day residency (e.g., utility bills or lease agreements). (See Instructions for Question 20.c.)
Type of document___________Dates of residence indicated on documents________

For your reading enjoyment: (see pg 6 for 20.c. instructions)
http://www.atf.gov/forms/download/atf-f-4473.pdf

mickeygrimreaperblueeyes: ...NICS checks are conducted at the state level and then appealed at the federal level.

Nope.
In the majority of states the dealer will contact the FBI NICS Center directly. The State of Texas has no idea who buys guns here.

http://www.fbi.gov/hq/cjisd/nics.htm







.

 

[crsuribe]

Yeah my dealer had never sold a gun to somebody who wasn't a U.S Citizen. He's a pretty small dealer, and a really nice decent guy. I really can't blame him for anything. He said he's gonna do everything he can to see that I get my gun because he understands how much it means to me.

 

[Riana]

The only proof of residency I provided was my green card which says "Resident since 04/10/2010" and my driver's license which says "Issue date: 05/21/2010"

Both show I've been a resident for over 90 days.

Any dealer I've worked with has a green card holder show proof of residency via utility bills - the last three, most current bills should show 90 days of residency.

 

[NavyLCDR]

Yeah my dealer had never sold a gun to somebody who wasn't a U.S Citizen. He's a pretty small dealer, and a really nice decent guy. I really can't blame him for anything. He said he's gonna do everything he can to see that I get my gun because he understands how much it means to me.

That's good. Maybe if NICS doesn't come back in three days he will transfer the gun to you as allowed by law!

Any dealer I've worked with has a green card holder show proof of residency via utility bills - the last three, most current bills should show 90 days of residency.

That is what is required by Federal regulations (27 CFR 478.124(3)(ii)). Green card and/or driver's license is not good enough. (Heck, I have a Wyoming driver's license and I haven't lived in Wyoming for 26 years!)

http://ecfr.gpoaccess.gov/cgi/t/tex...iv8&view=text&node=27:3.0.1.2.3.8.1.4&idno=27

(3) After the transferee has executed the Form 4473, the licensee:
(ii) Shall, in the case of a transferee who is an alien legally in the United States, cause the transferee to present documentation establishing that the transferee is a resident of the State (as defined in §478.11) in which the licensee's business premises is located, and shall note on the form the documentation used. Examples of acceptable documentation include utility bills or a lease agreement which show that the transferee has resided in the State continuously for at least 90 days prior to the transfer of the firearm;

 

[killchain]

Those NICS checks are interesting, and not in a good way.

Do you possibly have anything on your record that could flag you for delay?

I have a friend who recently got a misdemeanor DUI and now he gets delayed every single time he goes to buy a gun, without fail. I personally think it's because he's flagged as having that DUI, and then they have to check to make sure it's not a felony.

 

[crsuribe]

Would bank statements work? I could also provide paystubs.

 

[Six]

As an alien, you will always get a Delayed because they have to verify your immigration status with USCIS. If you don't get a delayed, someone screwed up.

I typically use utility bills. The 4473 explains what documents are acceptable.

If you get approved without utility bills and go get the gun, and your FFL gets audited by BATFE, he might be in trouble.

I'd start the process over the right way. Just bring in utility bills spanning 90 recent consecutive days.

 

[duns]

First of all don't panic.

My experience as a Green Card holder was that I was always delayed. Then approved.

You seem to be misunderstanding the proof of residency requirement. To show that you were resident in the state for the last 90 days, you just need to produce some utility bills*** bearing your name and address. I use my electricity bills. I present my most recent bill and then the previous monthly bills until the earliest bill date is purchase date minus 90 days or earlier. So that's the last three or four bills. No big deal.

Get your CHL and then you won't need a background check though you will still have to prove residency in the state for the last 90 days.

***Doesn't have to be utility bills - anything with your name and address will do, but you need at least a recent document and one 90 or more days ago. Monthly issued documents (bills, bank statements, etc) are ideal.

 

[crsuribe]

Not everybody pays utility bills, Six. I don't. I'm not gonna discuss my housing situation here but I don't pay bills.

I have Pay Stubs though and that should suffice. I don't think we can start the whole process over. My FFL can't just call again for the same transaction and say he's seen my pay stubs this time. Maybe if I get a denial we can try that.

@duns:
No panic here, just a concern.

Yeah I did misunderstand the proof of residency when we started the transaction. My FFL had no clue about it either. But like I said above, I don't pay bills and would not be able to produce a utility bill on my name. However, there are other types of documents which are valid that I can provide, like pay stubs and bank statements.

I will bring all those documents the next time I try to purchase a firearm. But right now I'm mostly concerned about the transaction I already initiated and which was delayed by NICS.

Also, in Ohio, even if you hold a CCW you still have to go through NICS everytime you purchase a firearm.
--------------------------
In case of a denial, can my FFL start all over and make the call again but this time having seen all the documents that prove that I have been a resident for at least 90 days? Or would I just have to provide those documents along with my appeal?

 

[Six]

crsuribe, I understand that, and I'd think that other forms of proof like bank statements should be fine.

I don't think you're in any kid of trouble - but I wouldn't pick up the gun on that transaction even when/if you're approved, or approved by default (never hear back).

 

[dogtown tom]

crsuribe Would bank statements work? I could also provide paystubs.

You didn't go to the link posted above and read the instructions for Question 20.c. did you?
Every document that is acceptable to ATF is listed there.

For your reading enjoyment: (see pg 6 for 20.c. instructions)
http://www.atf.gov/forms/download/atf-f-4473.pdf

NavyLT:...That's good. Maybe if NICS doesn't come back in three days he will transfer the gun to you as allowed by law!

The dealer put himself and crsuribe in a tight spot. The dealer should not have made the NICS check until he had all the information required by the ATF Form 4473 (and he still does not have that information). If the dealer hands the firearm to crsuribe he is waist deep in hot water. I'm surprised that NICS even continued with the check as required information was missing from the buyer.

If the NICS comes back as proceed, or there is no response in three business days he still cannot give the gun to crsuribe as Question 20.c. is missing required information. That is a pretty serious ommission and would probaly get his license revoked if the dealer does not fix it.

If crsuribe cannot or does not provide proof of ninety day residency in that state he cannot take possession of that firearm.

 

[crsuribe]

@Six
Really? How come?

@Dogtown

I don't see a list of documents anywhere on that form. They only mention Utility Bills, as an example.

With all due respect, because I do appreciate you trying to help me, it seems to me like all you guys are doing is come up with reasons why I'm screwed but absolutely no solutions.

Ok so my FFL can't transfer the gun because he hasn't seen proof that I have been a resident of the state for 90 days. So, what can I do about it? Go show him this proof so he can call NICS again and tell them that he's seen the documents and give them the dates, etc and fill out the question on form 4473?

Solutions is what I need, guys. Come on.

 

[Six]

Because if you pick up the gun and your FFL doesn't have the residency requirements on file, he might be in trouble. And I don't think it'd be a good idea to amend the 4473 that's already filled out after the fact.

Granted, no one would ever know... but I don't play around with firearm laws..

The safe way to me would be to cancel the current transaction, shred the 4473, fill out a new one with the information, get delayed for USCIS check, get approved, take my gun home.

 

[crsuribe]

Well I care a lot about obeying the law, as I respect this country and its Government very much. I will talk to my FFL about it tomorrow, since today is a holiday and I wouldn't wanna bother him.

Can my FFL just call an cancel the transaction?

 

[DenaliPark]

Those NICS checks are interesting, and not in a good way.

Do you possibly have anything on your record that could flag you for delay?

I have a friend who recently got a misdemeanor DUI and now he gets delayed every single time he goes to buy a gun, without fail. I personally think it's because he's flagged as having that DUI, and then they have to check to make sure it's not a felony.

Thats because a DUI can be issued for operating under the influence of "illicit drugs," a predicate disqualification.

 

[Six]

I don't think you need to notify BATFE at all.

Because of the residency misunderstanding, odds are that they believed on your end that your FFL had the documentation - or they would just not have proceeded at all. Right now they're probably waiting on USCIS, who will verify your status, and let NICS know that you are in fact legal. When NICS gets that, they'll call your FFL with a Proceed or a Denied. At that points NICS is done and will never know whether you picked up the gun or not.

You will hear from NICS in a couple of days, tough as it may be, I'd just wait for that before doing anything.

If you get denied, you can contact NICS directly to figure out why and solve it from there. I'll bet a buck that you'll get approved though.

Of course, I'm not a lawyer and this might be completely the wrong way to do it. But to me it seems like the safest option to avoid making an honest mistake worse.

 

[DenaliPark]

The OP will require the services of an attorney, at least thats my take on his situation, to many red flags, this is a likely denial.

 

[crsuribe]

Yeah the third business day will land on Wednesday. I bet we'll hear from them before then.

 

[duns]

Because if you pick up the gun and your FFL doesn't have the residency requirements on file, he might be in trouble.

The FFL is not required to keep the residency details on file. He just has to write "Utility bills", "Bank statements" or similar in the part of the form that asks about proof of 90 day residency. All my FFL's gave me my documents back after they glanced at them.

 

[crsuribe]

Denali, like I've said before, I'm perfectly legal to own firearms, or else the court wouldn't have returned them to me.

Let's see.. I have never been convicted of a crime, and have been a resident in the state in which I'm purchasing this firearm for almost 150 days.

What should I do in case of a denial, though? Try to start a new transaction but this time showing proof of residency? Or appeal right away?