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As much as the Brady Campaign, Bloomberg’s Everytown, and the Obama administration contend that submitting oneself to the FBI’s National Instant Criminal Background Check System (NICS) is a fast and simple process that does not significantly burden lawful firearms transferees, the fact is that for many of Americans that simply isn’t true . . .

Each year thousands of Americans are wrongfully denied their Second Amendment rights when NICS incorrectly determines that they are prohibited from firearm ownership. Compounding this grave injustice, this week the FBI made public that they have stopped processing NICS denial appeals.

In what was dubbed a “makeshift reorganization” in a January 20 USA Today article, employees tasked with reviewing NICS appeals have been “temporarily” reassigned to assist with the considerable increase in background checks. According to the article, this has created a backlog of 7,100 denial appeals.

News of this personnel shift comes on the heels of Barack Obama’s much-publicized executive actions on gun control. Included in these actions was an intent to “hire more than 230 additional examiners and other staff to help process [NICS] checks.”

When asked about this action in a January 20hearing of the Senate Appropriations Committee’s Subcommittee on Commerce, Justice, Science, and Related Agencies, Attorney General Loretta Lynch made clear that this plan would require some Congressional cooperation for funding, noting, “With respect to the 230, we do hope to begin hiring of that with using this fiscal year’s appropriation.

And then the 2017 request would allow us to maintain that.” Given the circumstances surrounding the public disclosure of the suspension of processing denial appeals, the personnel maneuver has the appearance of being a cynical bargaining chip in the pursuit of more resources.

It is important to understand the severe scope of the problem of erroneous denials, and thus the need for a well-functioning denial appeals process. FBI’s own informational materials provide evidence of the system’s potential for mistakes.

The agency’s 2014 NICS operations reportfor example, explains that a denial merely “indicates the prospective firearms transferee or another individual with a similar name and/or similar descriptive features was matched with either federally prohibiting criteria or state-prohibiting criteria.”

In 2014, 90,895 federal NICS checks resulted in a denial. That same year, 4,411 NICS denials were later overturned through the appeals process, or close to 5 percent of total denials that year.

Moreover, there is significant reason to believe that the number of erroneous denials is far greater than those overturned on appeal. Some individuals incorrectly denied may feel intimidated by the appeals process or simply dealing with the federal government in this capacity.

In her book, Brady Denial? You CAN Get Your Guns Back!, Attorney Cindy Ellen Hill, who has helped clients navigate the NICS denial appeals process, writes, “people who don’t appeal their Brady denials make that choice based on a lack of information, lack of money to hire a lawyer or investigator to assist them, or out of fear of drawing further unwanted attention from federal and state law enforcement authorities.”

Suspending the NICS denial appeal process takes on an even more sinister character when one contemplates the chief gun control measure advocated by the Obama administration. Under a “universal” background check scheme, individuals would be unable to lawfully obtain firearms without subjecting themselves to a NICS check.

If such legislation was currently in force, an individual who found themselves erroneously flagged by NICS, no matter how law-abiding, would have no avenue to legally acquire a firearm and no means to challenge their incorrect NICS status, obliterating their ability to exercise their rights in perpetuity, short of judicial intervention.

The Constitution guarantees that an individual cannot be deprived of liberty without the due process of law. When the FBI, or any other arm of the state, erroneously deprives a person of their rights without due process it should be the paramount concern of the government to correct the error.

While there has been a sizable increase in NICS checks in recent years, resulting from record demand for firearms, suspending the NICS denial appeals process is not an acceptable means of meeting new demand. NRA will continue to monitor this gross disregard for those illegitimately denied their Second Amendment rights and will work to ensure an available, fair, and timely NICS denial appeals process.

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  1. Creeping incrementalism. It works, although you have to be patient. The statist is well funded, organized and smart, and as such they are able to use this process and be patient. Look how long it took them to get the health insurance law passed, and we all know this is meant to lead to single payer.

    We need to reverse the creeping process direction.

    How to do so is a difficult problem to solve.

    • As an executive action in and of itself, yes.

      Given that it effectively denies RKBA contrary to the established judicial interpretation of the Second Amendment, I don’t think so.

      The problem is that someone who has standing needs to sue first. And it better be a model case – as in someone who knows they’ve been wrongly denied.

      As a “non-resident alien”, I have been denied twice before (for a grand total of ~35 purchases), both times solely due to FBI fuck-ups, so I’ve been in that position before. If I’m denied again while this instruction is in force, and they will refuse to process my review application, I will take this to court, and we’ll see how far it gets.

  2. Someone should file a lawsuit based on their right to due process and second amendment rights being effectively removed. See what the govt does then.

    • Fedzilla will continue to do what it has always done: whatever the Hell it wants.

      Fedzilla knows full well that, in the worst case, someone will eventually file a lawsuit. And then the matter will bounce around various courts for years until the U.S. Supreme Court eventually refuses to hear the case … after rescheduling the case for reconsideration three or four times of course. Meanwhile the feds will have been ignoring the U.S. Constitution and any lower court decisions … and probably continue to do so regardless of any decisions.

      In other words Fedzilla can ignore the United States Constitution and screw us with impunity.

    • ^This^

      And again they make fine evidence that the anti-anti’s aren’t so wrong.

      You’re not paranoid if they really are out to get you.

    • Probably because they know if they tried to prosecute one of the wrongly-denied folks, it could have a judge inserting his/her nose (or an order or two) right where they don’t want it to be.

  3. This is the EXACT same BS that happened to me several years ago. As a former school teacher, who has already had a very thorough background check, I was shocked when I was denied on a NICS. Embarrassed, and feeling like I had done something wrong, I called the number that the apologetic LGS owner gave me. To my surprise, it was the FBI help desk. Who knew there was such a thing?!

    I was slightly intimidated at first, but just knew if I called them, explained that I was a school teacher and upstanding citizen, that it’d be sorted out in just a bit. NOPE! I had to go get re-fingerprinted (my dime), submit forms to the FBI for a more thorough background check, wait for them to contact the ATF, and wait for the ATF to send me a PIN number that I’d have to use on every single gun transaction from that point forward, for the rest of my life. At that point, it was an estimated 6 month wait.

    There had been several things in my life, in dealing with government, that contributed to this personal turning point, but this was the big moment for me. I was being treated like a criminal, and stripped of my rights, because I apparently had some type of slight similarity to a criminal! I was furious, and embarrassed, because I couldn’t perform a common and guaranteed American activity, buying a gun.

    Since that day, I’ve become an active participant in gun rights lobbying, walks, groups, militia, and a political donor. I now own a plethora of guns, from .17s to .338s, 9mm to .460R. Not one of them done with a background check. I refuse to get a CHL (paying for rights is for slaves), yet carry 90% of the time. I calmly and logically explain the Constitution to anyone that asks. I do all I can to educate people, and on more than just what the Constitution says about guns.

    Thanks government! Through your own abuses, you woke me up. All because you treated an innocent person like a criminal.

    • Hell yeah Dale. Always good to see people who recognize the very real threat from the state. Too many damn ostriches out there.

      • I know its just an example, and a good one, but even the ostrich isn’t fool enough to really stick its head in the sand. What it actually does is stand still and hide irs head under its stubby little wing, while watching the threat and pretending to be a shrub. Then, if it decides the threat isn’t buying the deception, it beats feet.
        Only humans are stupid enough to ignore obvious threats because they’d rather hope( and sometimes pray) that the threat will ignore them and eat someone else instead.

    • I’m in the same boat as you. But I’m never going to appeal it; they screwed up once already, I’m not going to pay for their f-up, and no way do I want the .gov being up in my business more than they already are. I do wonder why I got denied, but even trying to find that out would give me an ulcer the size of Vesuvius. Beyond a criminal stealing my identity perhaps, the only other thing I can think of is that the VA might have something to do with it…. they tried to label me as having PTSD some time ago, and I’ve been fighting them on it ever since.

      • A person I know has the ability to run federal background checks. There is apparently a violent felon, in Florida, that shares my DOB, first initials, last name, and has a similar physical description. While some similarities exist, it’s not me, and I’ve been treated as a criminal. I haven’t been to Florida since I was 16, for a family vacation. Nor do I even live anywhere near Florida.

        Our judicial system is based around the idea that it’s better to let a guilty person go free, than convict an innocent. That idea is SUPPOSED to include things like this, but it obviously doesn’t. They can go Fnck themselves now, because I, like you, refuse to play their game.

  4. How the hell does that even happen? I’m not even remotely surprised, but isn’t that why the NICS asks for your SSN? To avoid being mixed up with somebody who has the same name? Sounds to me like a subtle but deliberate move by certain people who control the system, rather than an accidental glitch.

    • It happens for a variety of reasons, including identity theft or because your personal information – full name, date and place of birth, SSN, etc. – is a close but not exact match to someone who is prohibited.

      One of my customers had to get a UPIN after his brother was convicted of a felony and then started using my customer’s name/info as an alias. IIRC it took almost a year.

    • I got denied for going to behavioral health once. Doctor said I was fine and returned me to the guns I already owned and let me serve 3 more years in the military. Then one day I try to buy a new gun and suddenly I’m in NICS as a 5150. Took me 10 months to clear that. No doctor diagnosed me as mentally unstable. I just magically appeared to be that way

  5. Compounding this grave injustice, this week the FBI made public that they have stopped processing NICS denial appeals.

    Source? I had not heard that. All you linked to was the brochure outlining the appeals process. Is there an FBI press release?

    • RF did link to the USAToday article explaining the dirty scheme, and the article gives the FBI as the source of the info.

  6. This fuels circumventing the abiding people being denied their rights creates a new class of criminal.. The law abiding citizen denied his rights.

  7. The way it’s supposed to work, is that if the Cop refuses to show up for traffic court, you win. But “supposed to” and “government” never did belong in the same sentence, so…….

  8. I currently have a valid CCL and went to buy a new gun about 5 months back and was denied surprised I filed for the appeal and have not heard anything back since then and can’t purchase anymore guns does anybody know any other way to get my appeal processed and my situation resolved ?

    • First, you need to request that they send you a formal letter with reason for denial. Do that here:

      Response will come as a letter, and will contain further instructions on how to challenge it. Unless it’s a clerical mistake on their side, they may demand that you submit fingerprints (your local PD will usually provide fingerprinting as a service).

      Good luck.

      • Thanks for the reply I sent the request letter you mentioned the day after I was denied and also sent a copy of my fingerprints and I have not heard anything in months and don’t know what I can do now that the FBI has stated that they are no longer processing appeals thanks

        • Sorry, I didn’t quite read that properly.

          There’s a phone number that you can get that lets you get in touch directly with someone at NICS processing. I’m not sure how to find it online; when I got denied, I got it by trying to undergo a check again, and asked the dealer to ask the NICS person to give me some contact info. Then I could call them and talk it over directly.

          If that doesn’t work, and if you’re willing to challenge it, I think next step would be the courts. i would get in touch with SAF and NRA (in that order), and see if they would be willing to provide legal assistance to you. They might be interested in pursuing such a case.

        • I tried to call the FBI directly but they won’t talk to me I get automated system that says everything has to go through the mail witch I have already done with no results I will try your other suggestions it’s just frustrating I’ve already been through the whole process and have a handgun permit but can’t buy any guns that’s what I need is a number to talk to a real person and get this resolved thanks for your info

        • Remember that it’s always a “real person” when you make a new NICS check. Since it’s the dealer that’s talking to them, and not you, you need to find a cooperative dealer willing to ask questions and push for answers.

          In my case, they gave that phone number after a lot of prodding by the dealer. I’m pretty sure it was some kind of internal line that goes around all those automated response systems. Wish I had saved it…

          I think quite a few people here on TTAG would love to hear how it goes, so keep us updated!

          And if it comes to courts, well… even if SAF won’t take it pro bono, for a cause like this, you should be able to crowd-fund the legal fees easily. If it comes to that, and you need help, ping me.

        • UPDATE !
          I made another phone call today to the NICS system today and somehow got to talk to a very nice lady. I told her my issue and she didn’t have any problem helping me out. She said let me review your file and give you a call back in about 15 min. She called me back and said ok your good to go your record has been updated in our system. For some reason she said the state system records where not showing up on the federal end. But she said today was my lucky day the system is now updated I can’t thank her enough I’ve been going back and forth for over a year trying to get this fixed.

        • Hi ed. ou commented that called nics again and talked to someone and it was cleared thats awesome news. I am in the same boat and was wondering if you could give me the phone # you called. Would be appreciative. Thanks

        • Hi Joe,
          The number I called is on thre FBI NICS website it’s 1-877-FBI-NICS (324-6427) now keep in mind when you call there are automated choices that you have to select and I don’t remember what I chose but I went through like three choices. Now I have called this number before and never was able to talk to a real real person I was just given automated choices and responses that where of no help at all. Somehow this last time I called I was able to talk to someone and get everything resolved, i got lucky I guess. I wish I could be of more help and you get your issues resolved good luck.

        • Thanks a bunch Ed. Maybe its my lucky day. Thanks again for the info. I had a DV charge on me from 8 years ago. I was able to get it expunged from peering eyes and there are exceptions to the DV ruling. One being rights are given back if the charges are sealed or expunged. Playing the wait game.

  9. Like Chris Cox & Chuck Cunningham at NRA-ILA care about faulty background checks? Check out the UNLIMITED privacy waiver NRA contract lobbyist for Illinois Donald Todd Vandermyde put in Rep. Brandon Phelps HB183 “NRA backed” carry bill in 2013:

    “a waiver of the applicant’s privacy and confidentiality rights and privileges under ALL federal and state laws, including those limiting access to juvenile court, criminal justice, psychological, or psychiatric records or records relating to any institutionalization of the applicant…” Thanks Todd!

    According to NRA, the IL State Police would never use this invasive and illegal privacy waiver to look at your bank accounts or tax records and share with the feds. Luckily most NRA members in IL are retarded hicks living in trailers who can’t read past G.E.D. level, or are unable to read at all. Vandermyde has explained to them that if you are a Klansman and know the secret handshake, then the police are your friends and “on the same side” since you are “one of the good guys.”

    That’s why Duty to Inform “hasn’t been a problem.” Since DTI is criminal, any cop can lie and say you “resisted arrest” when they “attempted to disarm you” for “officer safety.” Yee-haw!! Send in your NRA life membership so Chris Cox & Chuck Cunningham can hire rats like Vandermyde to sell you out and get you killed! Where’s the NRA booth!

  10. QUESTION: SO, Turned down does that mean can’t try the “buying process” again? or ?

    What about going FULL BOAT ” NFA” item, since that requires fingerprints, photos etc. for the detailed background check .
    I would think that might be a way to get all of ones records looked at, in a different pathway of ownership whereby bypassing the normal appeal process.
    Don’t know what would happen or what you could do if “Denied” at that point.

    I have heard of people wanting ( trying) to buy a ( rifle) in a neighboring ( of their home) State, turned down…. go back to home state “Approved”. I wonder about the reverse, denied home state, approved adjacent state?

  11. I was just denied in February, no criminal record, bought less than two years ago. This is an obvious stall tactic by the powers that be. I am pissed. I have a right!! And these jokers are denying that right. What do you want to make me a criminal buy buying a gun underground? YOU MAKE ME SICK!!!!

  12. I’ve successfully gone through an appeal in the past, and have had a WA CWP for over 20 years. I have been trying to provoke these idiots after years of delays one denial sucessfully won, and now another denial. After many attempts to contact them, online forms, etc. I went another route telling them about the 80% lower I finished. Stupid maybe, but I’m very confident in my ability to lawfully own a gun and I think at this point I’d love some harassment just so I would know those people can at least figure out how to dial a phone.
    They have certified copies of every document possible showing my ability to own firearms, yet no matter who or how I try to contact them, I only get form letters and stonewalling.
    Whatever, turn down my Glock purchase, I’ll make 3 AR15s. Burdon of proof is on them now, and I’m just waiting for that knock at the door (if the idiots can even find an address).
    Do I sound pissed at this point? Hell yes, and I’m a Bhuddist that only wanted to purchase weapons for IDPF with my teens! In reality the ATF us irrelevant to everyone but those who actually want to follow the law; get a clue people!! My name is on here – boogey woogey – you’re it!

  13. Attempted to purchase a firearm was denied on Adjudicated Mental Defective/Committed to a Mental Institution. I’ve purchased firearms in the past and the dates provided; I wasn’t even in the country. There are three different records, found w/ my name and SS# stating that I was committed (pretty sure i would have remembered that). I have documentation that I wasn’t in the country, was in Iwakuni (stationed) and in Bahrain. How long could the appeals process take if I have government paperwork showing that I wasn’t even in the country? My car was stolen while I was in Japan, and there could have been paperwork with my information on it. But no other hits were found on my credit report. Who steals an identity to then be committed??

  14. I have bought guns my entire life my last purchase was 2 years ago. I recently ordered a gun custom built from another state shipped to my ffl dealer. I went down completed paperwork, and I was denied. There are no changes in my history… I appealed on line, the response was my name came up like some one who is prohibited to purchase a firearm. So just appeal right??? well the fbi stopped processing appeals in January of 2016. Today I retained an attorney and we are suing the government for my rights to due process. This lawsuit can take anywhere from 6 months to a year But I will get my gun in the end..


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