Appeal of NICS Denial

[Reilandlaw]

Has anyone ever appealed a FBI NICS denial? If so, would you mind sharing your experience? (PM if you feel more comfortable).

Thanks,

Bill

[Capt_Communist]

Usually it's pretty cut and dry as to the reason why....

If you don't mind posting, why were you denied?

[bwiese]

Well, the question you asked is "depends"....


1.) If the NICS denial is the proper result of felony conviction, Lautenberg DV conviction, etc. then appealing
the actual NICS denial is useless and moreover not possible: the actual underlying conviction must be addressed
(if even possible, depending on nature of felony, etc.)

[Other edge conditions could be some sort of green card issue for legal residents that needs to be cleared up etc.]


2.) If the NICS denial is because your name is John Smith and you're just being confused with a bad
dude of the same name, then there's a path to relief. See:

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

This is actually quite common and seems to get fixed readily without a whole lotta grief. This is also
why some folks have to put their SSN# on the 4473 so they don't keep getting drama everytime
they buy a new gun.

[In cases where a state 'wobbler' felony got set back to a misdemeanor court record may need to be
cleaned up and coordinated with Cal DOJ too.]

[Reilandlaw]

It's not for me, but a client. He was denied due to a prior conviction, but his conviction does not prohibit him from owning a firearm, unless I'm missing something. CA DOJ indicated that I have to appeal NICS' determination.

To be specific, it's a 15-year old misdemeanor conviction of PC 243(e), battery against spouse, which should be a 10-year prohibition.

Bill

[Untamed1972]

To be specific, it's a 15-year old misdemeanor conviction of PC 243(e), battery against spouse, which should be a 10-year prohibition.

Bill

I think under federal law, ie Lautenberg act, all DV convictions are a lifetime prohibition. That might be a tough one to get tossed unless Lautenberg gets tossed first.

[Reilandlaw]

I think under federal law, ie Lautenberg act, all DV convictions are a lifetime prohibition. That might be a tough one to get tossed unless Lautenberg gets tossed first.

If that's the case, how can CA law say that certain convictions are only 10 years?

From my research, federal law excepts from federal prohibitions in certain circumstances when state laws provide for restoration of firearms rights. That's what I'm thinking is my hook.

Bill

[ke6guj]

If that's the case, how can CA law say that certain convictions are only 10 years?

because CA does not take into account federal restrictions when they write their laws. The CA "10-year" rule for those specific misdemeanors was around before the lautenberg amendment was passed. Note that the CA law does not deal with DV, just that the crime was a battery, the 10-year ban is because it was a battery, not that it was a DV battery. The feds have a separate law that says that any DV is a lifetime ban.

From my research, federal law excepts from federal prohibitions in certain circumstances when state laws provide for restoration of firearms rights. That's what I'm thinking is my hook.

Bill

The mean "restoration of firearms rights" as in an expungement of the conviction or a pardon, not that a time limit of a "probation" ran out.

[Untamed1972]

If that's the case, how can CA law say that certain convictions are only 10 years?

From my research, federal law excepts from federal prohibitions in certain circumstances when state laws provide for restoration of firearms rights. That's what I'm thinking is my hook.

Bill

Lautenberg is a lifetime prohibition. You're dealing with to different entities and when it comes to firearms the requirements of both state and fed must be met. Even if state law says it's only a 10yr prohibition, the fed law says it's lifetime which applies across the board to all states regardless of what the individual state laws say because a state may pass a law that is MORE restrictive then the feds but not one that is LESS restrictive.

Trust me.....there are plenty of people who have been bitten by Lautenberg.....and what really sucked about it is that it was applied retroactively. So even if your conviction was prior to that act taking effect the convicted person was still affected by it and suddenly became a prohibited person overnight.

[Reilandlaw]

I understand how conflicts are resolved between state and federal laws, but per 18USC 921 (33)(b), "A personal shall not be considered to have been convicted of such an offense ... if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored...."

Arguably, there is an automatic restoration of his rights after ten years. It's not a probation condition, but a term of the judgment entered. On top of that, his conviction was expunged after ten years had elapsed. Therefore, under CA law, his firearm rights have been restored and he should be subject to the 18 USC 921(33) exception.

An alternate view of how these laws read together (and one that doesn't help me) is that after ten years he is no longer in violation of state law if in possession, but could still potentially be prosecuted by the feds.

I understand it's a stretch, but if nobody tries to push these things, nothing will ever get done. I guess with my original post I was looking to see if anyone here has personally tried this argument.

Bill

[bwiese]

You might want to consult with Michel & Associates - they're NRA's law firm in CA (Long Beach; see their banner here) - and Chuck & his crew have dealt with various rights restorations matters. If 'something interesting' were to come up it could be useful to more than just your client.

There have been quite a few folks here that have had nonviolent 'wobbler' felonies resentenced down to misdemeanors, and then they were eligible (with some DOJ processing) to buy guns again.

[yellowfin]

Identity theft may cause some undeserved problems as well.

[glenndf]

You might want to consult with Michel & Associates - they're NRA's law firm in CA (Long Beach; see their banner here) - and Chuck & his crew have dealt with various rights restorations matters. If 'something interesting' were to come up it could be useful to more than just your client.
.

IIRC they had a thread sometime in the last two weeks where they were looking for a plaintiff similar to the OP's client.