NICS Appeals Not Being Processed Results in Lawsuit

Here’s an interesting story that I recently saw posted on Concealednation.org (https://concealednation.org/2018/06/fbi-sued-for-not-bothering-to-process-ncis-appeals/) that discusses a lawsuit that was recently filed against the FBI for not processing NICS appeals. So here’s a little backstory: Most states (although some will accept alternatives like an FOID card or a CCW permit in lieu of the NICS check) have a requirement that a NICS check be conducted on a person when they are buying or transferring a gun. While most law abiding citizens have no issue passing a NICS check, denials can and do occur.

Take a look at the article below (quoted in bold italics), and then have a look at our thoughts, along with a real-life example of this issue in action:

“Every now and then, a NICS check will get denied for a reason that’s not legitimate. It could be that a criminal has stolen someone’s identity, or something as simple as a bad guy having a similar name as a law-abiding citizen. No system is perfect.

That’s why the FBI should be examining NICS appeals — which they just decided to quit doing in late 2015, at least for some, according to a legal complaint lodged by Stamboulieh Law, PLLC.

Take a look at their statement to the press below:

The FBI simply must fix its NICS appeals system. After it was reported that the FBI stopped processing firearms denials in early 2016, we filed a FOIA for that information. It was recently received. We have had at least a hundred people contact us to help vindicate their rights in court. So, today we filed a lawsuit on behalf of five individual plaintiffs from across the country that were erroneously denied their firearms purchase. Of interest, there are two suppressor denials in here as well. The Complaint is attached for your review. We will update the public as we receive more information.

We have also alleged that even if the government provides the relief sought in the complaint, that the Court should retain jurisdiction due to this issue:

However, the Defendants and FBI in particular, is improperly shifting their burden to the individual to follow up with various courts or jurisdictions. This is the same scenario found in, 903 F. Supp. 2d 333, 341 (D. Md. 2012).In , the district court found that the defendant was improperly shifting the burden and that:

“[t]he regulations make clear that the burden falls on the NICS Section to conduct additional research ‘to determine whether the prospective transferee is disqualified from possessing a firearm by Federal or state law.’”

In other words, the FBI was saying in the event of a NICS denial “hey, it’s your problem, bud,” despite the fact that it’s clearly theirs. If someone is denying a Constitutional right, they darn well better be able to shoulder the burden of proof. I mean, come on.

It’s pretty obvious that what we’re seeing here — and what we’ve been seeing here — is the laziness that is bred from any deeply-entrenched bureaucracy. These guys work for us, and hopefully Stamboulieh Law can remind them of that.

Quoted from:  concealednation.org

Our Thoughts:

First, this information is no way meant to bash the FBI or the NICS system in any way, but facts are facts. Now, to be fair, we have an FFL and have always had positive experiences dealing with the NICS staff. That being said, NICS checks are running at an all-time high with the FBI reporting nearly 2 million NICS checks being requested and completed each month. If they are averaging 2 million checks a month, the math works out to around 66,000 checks per day in a 30 day period. According to data published by the FBI (and that data can seen here at the FBI document Repository), the number of NICS checks that are processed monthly has nearly doubled over the last 10 years. The 2007 NICS data has the FBI processing an average of 1 million NICS checks per month, and the 2017 numbers have them processing just under an average of 2 million checks per month.

While I’m betting that most of the NICS denials are valid and are based on an appropriate reason, as with most large bureaucratic organizations, I’m sure there are also cases where mistakes are made. If someone is denied through a NICS check, the NICS examiner who made the denial is not permitted to reveal the reason for the denial to the FFL requesting the NICS or to the subject of the denial. Anyone denied via a NICS check has the right to file an appeal. More information about the NICS appeals process can be seen here.

However, if appeals are not being processed, then how does someone who was denied determine the reason for the denial? And, if the denial is the result of a mistake, then how does one go about getting it corrected?

As I mentioned before, although gun holsters are our main focus, we also have an FFL, and do handle FFL transfers for local customers. Last year, we had a situation where a local customer ordered a long gun online and had it shipped to our store to handle the FFL transfer. This was a new customer that we hadn’t previously dealt with, and his NICS check was a denial on the first level, then escalated to a Level 2 NICS examiner, who confirmed the denial. Due to their internal rules and regulations, the NICS examiner was not able to release any information to either us or the customer as to the reason for the denial. Although the customer opted to return the firearm, he was interested in filing an appeal as he had no idea why he would be denied as he had made prior firearms purchases before. We provided the customer with all the necessary information for an appeal, and he filed a written appeal a few days later. Out of curiosity, we periodically checked in the with customer to follow-up. 60 days after the appeal was filed, he received a confirmation that his notice of appeal had been received by the FBI. I reached out to him recently, and he reported that he still had not received any additional information about his appeal (which dates back to November of 2017).

Let’s hope this lawsuit ruffles enough feathers on Capitol Hill to get this issue corrected.