Fed to seize guns from people who failed background checks

[Jusme]

This is really nothing new but it is getting a lot of attention. Let me explain, customer comes in to purchase a firearm and fills out the 4473. The NICS background check is run and comes back as delay. There is a 3 business day waiting period (which is actually 5 days since the first and last day do not count. It ends up being more during holidays but I digress). So let's suppose they came in on a Monday and it got delayed, legally I can transfer the firearm on Friday if there are no updates and it still shows delay.
The way NICS works is that the initial background check info goes to an employee at the FBI that has no access to look into someone's criminal records. They simply look for flags on the 4473 with their database and if anything pops up they give up to employees that have proper access to look into the individual (this was explained in a training class by the lady that runs NICS). So let's suppose that the customer filled out the 4473, I submit it to the FBI through E-Check and it goes to the FBI employee (or computer) looking over the 4473 and something shows up. Perhaps a person with the same name has a felony - so it goes to delay while they forward to another person who has the clearance to look into the background and see if that is this person. So they have until Friday morning to find out if this person who filled out the 4473 is a prohibited person that the have in their database, program, NCIC or whatever they use at the FBI. They then have to look into records or contact local law enforcement to verify whether or not they are prohibited. They do not always get answers back in three days for their requests. I have had some NICS checks stay open for a month.
So now we are at Friday and I tell Joe Blow to pick up his handgun, legally I can transfer it. Joe Blow picks it up and I never see him again. Two days later NICS gets a response to their request and find out Joe Blow had a stalking complaint (or arrest or dishonorable military discharge or anything else disqualifying). So NICS changes the status (which was "open") to "deny" and call me and ask if I transferred the firearm to Joe Blow. I tell them I transferred after 3 days like I legally can and that Jow Blow now has the firearm. NICS contacts ATF to retrieve the firearm since Joe Blow was a prohibited person. Keep in mind that although an FFL can transfer after three days if they do and the person ends up being prohibited and ends up committing a crime the media will try to ruin that FFL with all the negative attention. I think this is why places like Academy will not transfer until they get a "proceed".
So now let's talk about those that are prohibited. I have had a handful of deny status since I have been selling firearms and not one of those people did not know they were prohibited. One guy asked me after getting denied if I think that the felony he had as a teenager was still on his record. Yes, he really asked that. Another guy had a family related charge for assault that he "thought wouldn't have shown up". Those that are prohibited know it when they fill out the 4473. From what I see this is not the case of the government trying to seize guns. If someone were committed to a mental institution they know they were and they are responsible for reading the 4473 and knowing what they are signing. I have had people who were not sure if they qualified ask me and I refer them to an attorney (it is normally people who have had problems as a teenager and think the charges can no longer be seen or should have been dropped). I do not see this as a gun grab but normal business as usual.

I agree with this total assessment and your experiences mirror mine in the limited time I have been in the business. My only question is, what authorizes the ATF to seize real property, without compensation? I understand that if the person is actually prohibited, then they should not possess guns, but what happens to the seized guns? As an American citizen, they should belong to all of us. Also wouldn't there be a risk that the person, in question, has been the victim of stolen identity, or some other administrative foul up, and would then be unlawfully denied their right to keep and bear arms. What avenues are available to innocent people who have guns taken?


This is just my opinion, but the whole story sounds a lot like political posturing, to give the general public the impression that "something" is being done, when they freely admit, that even if they had the manpower, few have the guts to kick in doors of armed citizens.

[ninjabread]

Unless they can prove that the buyer KNEW he was ineligible, the system might have failed, but he committed no crime that I’m aware of. The upshot is that, in my opinion, you can’t just seize something without compensation, when that thing was purchased in good faith. If gov’t is going to seize a gun that I bought in good faith, not knowing I was ineligible, then I expect the gov’t to refund the entire cost to me of buying that gun, including sales tax paid. Otherwise, it’s a taking, which is unconstitutional.....not to mention ain’t right.

What if the gun you bought was stolen? Does the government have to refund your money when they take it?

What if somebody in Colorado buys weed and the DEA comes along and seizes it? Should the DEA have to reimburse them? What if they say, "Bruh, I thought it was legal in Colorado." Does that mean they can't be prosecuted unless the DEA can prove that the buyer KNEW it was illegal?

[K.Mooneyham]

Unless they can prove that the buyer KNEW he was ineligible, the system might have failed, but he committed no crime that I’m aware of. The upshot is that, in my opinion, you can’t just seize something without compensation, when that thing was purchased in good faith. If gov’t is going to seize a gun that I bought in good faith, not knowing I was ineligible, then I expect the gov’t to refund the entire cost to me of buying that gun, including sales tax paid. Otherwise, it’s a taking, which is unconstitutional.....not to mention ain’t right.

What if the gun you bought was stolen? Does the government have to refund your money when they take it?

What if somebody in Colorado buys weed and the DEA comes along and seizes it? Should the DEA have to reimburse them? What if they say, "Bruh, I thought it was legal in Colorado." Does that mean they can't be prosecuted unless the DEA can prove that the buyer KNEW it was illegal?

I don't think you can equate guns and weed. Guns, in and of themselves, are not illegal. Weed, at the Federal level, is illegal.

[The Annoyed Man]

Unless they can prove that the buyer KNEW he was ineligible, the system might have failed, but he committed no crime that I’m aware of. The upshot is that, in my opinion, you can’t just seize something without compensation, when that thing was purchased in good faith. If gov’t is going to seize a gun that I bought in good faith, not knowing I was ineligible, then I expect the gov’t to refund the entire cost to me of buying that gun, including sales tax paid. Otherwise, it’s a taking, which is unconstitutional.....not to mention ain’t right.

What if the gun you bought was stolen? Does the government have to refund your money when they take it?

What if somebody in Colorado buys weed and the DEA comes along and seizes it? Should the DEA have to reimburse them? What if they say, "Bruh, I thought it was legal in Colorado." Does that mean they can't be prosecuted unless the DEA can prove that the buyer KNEW it was illegal?

There is also a substantive difference between buying a stolen article, and buying one through an FFL with a 4473 and a NICS check. If it is stolen, it doesn’t matter if it’s a gun or stereo, or a bicycle. The original owner has a right to get it back. As long as you didn’t knowingly buy a stolen article, you don’t get prosecuted, but you don’t get to inflict loss upon the victim by making HIM pay you, and it’s not gov’t’s job to reimburse you for having purchased stolen property. That’s just the luck of the draw. But when you do to a gun store, pick out a gun (new or used, it doesn’t matter) that is in that store’s inventory, the gun has presumably been properly vetted before it is ever put on the shelf. It is a safe and reasonable assumption that it isn’t stolen property. In good faith, you fill out the 4473, go through the NICS check, pass, and take the gun home, and THAT gun is confiscated without compensation, that is a taking. YOU are the victim, not someone who had their gun stolen and then sold to you.

[mrvmax]

Unless they can prove that the buyer KNEW he was ineligible, the system might have failed, but he committed no crime that I’m aware of. The upshot is that, in my opinion, you can’t just seize something without compensation, when that thing was purchased in good faith. If gov’t is going to seize a gun that I bought in good faith, not knowing I was ineligible, then I expect the gov’t to refund the entire cost to me of buying that gun, including sales tax paid. Otherwise, it’s a taking, which is unconstitutional.....not to mention ain’t right.

What if the gun you bought was stolen? Does the government have to refund your money when they take it?

What if somebody in Colorado buys weed and the DEA comes along and seizes it? Should the DEA have to reimburse them? What if they say, "Bruh, I thought it was legal in Colorado." Does that mean they can't be prosecuted unless the DEA can prove that the buyer KNEW it was illegal?

But when you do to a gun store, pick out a gun (new or used, it doesn’t matter) that is in that store’s inventory, the gun has presumably been properly vetted before it is ever put on the shelf. It is a safe and reasonable assumption that it isn’t stolen property.

What "vetting" is there that a gun store or pawn shop can do on a used firearm? With no access to any type of stolen firearm database the FFL has no way of really verifying whether a used firearm is stolen or not, it is really a guess. There may be some visual signs that the person may not be legit but besides that it is really a gamble. I can see where the consumer assumes it is not stolen if it is for sale but that is not always the case since there are no sure ways to ensure it is not stolen.

[MaduroBU]

This is a good thing only if it precedes the NICS actually doing its job. I have met people who have had dealings with ATF agents....and found them to be both extremely reasonable and focused on actual gun crimes rather than hassling people who aren't breaking the law.

Aggressive and successful enforcement of extant gun laws is virtually the only thing that can head off action on the inevitable calls for more gun control from people who harbor an irrational hatred for guns.

[Jusme]

Unless they can prove that the buyer KNEW he was ineligible, the system might have failed, but he committed no crime that I’m aware of. The upshot is that, in my opinion, you can’t just seize something without compensation, when that thing was purchased in good faith. If gov’t is going to seize a gun that I bought in good faith, not knowing I was ineligible, then I expect the gov’t to refund the entire cost to me of buying that gun, including sales tax paid. Otherwise, it’s a taking, which is unconstitutional.....not to mention ain’t right.

What if the gun you bought was stolen? Does the government have to refund your money when they take it?

What if somebody in Colorado buys weed and the DEA comes along and seizes it? Should the DEA have to reimburse them? What if they say, "Bruh, I thought it was legal in Colorado." Does that mean they can't be prosecuted unless the DEA can prove that the buyer KNEW it was illegal?

But when you do to a gun store, pick out a gun (new or used, it doesn’t matter) that is in that store’s inventory, the gun has presumably been properly vetted before it is ever put on the shelf. It is a safe and reasonable assumption that it isn’t stolen property.

What "vetting" is there that a gun store or pawn shop can do on a used firearm? With no access to any type of stolen firearm database the FFL has no way of really verifying whether a used firearm is stolen or not, it is really a guess. There may be some visual signs that the person may not be legit but besides that it is really a gamble. I can see where the consumer assumes it is not stolen if it is for sale but that is not always the case since there are no sure ways to ensure it is not stolen.

The "vetting" is done, by a gun store or pawn shop by submitting the serial number, to the local law enforcement agency. The number is entered into the national data base to see if it is stolen. The gun store or pawn shop must hold the gun for 30 days before reselling it, so that there is time for a report to be submitted, if it was recently stolen. If the gun is stolen, the gun store/pawn shop loses possession of the gun. They of course, provide the LEO the information on the person they bought from. However, being reimbursed is a civil matter.

[OldCannon]

I do not see this as a gun grab but normal business as usual.

I agree. Most of you know I ran an FFL biz for many years (and I'm grateful for mrvmax for his sage advice when I first started it!). In those seven or so years, I had two firearms that were in delay mode, then went "Denied" AFTER the waiting period expired and I transferred the gun to the buyer.

In one case, I was able to reach the guy that day and he sheepishly brought it back. Although he didn't admit it, it seemed from the look on his face that he was hoping he'd be able to slide by.

The second one was a little more difficult. He kept ignoring my calls and I was going to just let the ATF handle it (FFLs are in NO WAY required to retrieve a firearm once its transferred, BTW). I finally decided to leave a voice mail for the guy and let him know the plain truth -- the ATF was likely to come up to him in the most embarrassing circumstance, probably at work, and question him about the firearm . He brought the firearm in a couple days later.

In both cases, I paid for their firearms at a HIGHLY discounted rate, because they couldn't transfer them back to the seller. They lost money but avoided having their toy confiscated (both were lowers that I ultimately decided to keep). I don't feel the least bit guilty about it -- it seems pretty clear that both KNEW they had a shady past and were hoping they could feign ignorance.

This kind of thing is why I think there should be a pretty rapid response to people buying guns when they are in denial state, and extremely severe punishments for hiring a straw purchaser. On the other hand, I think people deserve to know their status before they attempt to purchase. Right now, there's no effective way to run a NICS on yourself without actually purchasing a firearm. Catch 22. Kind of the same problem with dealers -- we (usually) have no effective way to determine if a used gun was stolen before buying or transferring it.

[mrvmax]

Unless they can prove that the buyer KNEW he was ineligible, the system might have failed, but he committed no crime that I’m aware of. The upshot is that, in my opinion, you can’t just seize something without compensation, when that thing was purchased in good faith. If gov’t is going to seize a gun that I bought in good faith, not knowing I was ineligible, then I expect the gov’t to refund the entire cost to me of buying that gun, including sales tax paid. Otherwise, it’s a taking, which is unconstitutional.....not to mention ain’t right.

What if the gun you bought was stolen? Does the government have to refund your money when they take it?

What if somebody in Colorado buys weed and the DEA comes along and seizes it? Should the DEA have to reimburse them? What if they say, "Bruh, I thought it was legal in Colorado." Does that mean they can't be prosecuted unless the DEA can prove that the buyer KNEW it was illegal?

But when you do to a gun store, pick out a gun (new or used, it doesn’t matter) that is in that store’s inventory, the gun has presumably been properly vetted before it is ever put on the shelf. It is a safe and reasonable assumption that it isn’t stolen property.

What "vetting" is there that a gun store or pawn shop can do on a used firearm? With no access to any type of stolen firearm database the FFL has no way of really verifying whether a used firearm is stolen or not, it is really a guess. There may be some visual signs that the person may not be legit but besides that it is really a gamble. I can see where the consumer assumes it is not stolen if it is for sale but that is not always the case since there are no sure ways to ensure it is not stolen.

The "vetting" is done, by a gun store or pawn shop by submitting the serial number, to the local law enforcement agency. The number is entered into the national data base to see if it is stolen. The gun store or pawn shop must hold the gun for 30 days before reselling it, so that there is time for a report to be submitted, if it was recently stolen. If the gun is stolen, the gun store/pawn shop loses possession of the gun. They of course, provide the LEO the information on the person they bought from. However, being reimbursed is a civil matter.

There may be some way pawn shops can check that I am not aware of but “gun stores” cannot.

[ninjabread]

What if somebody in Colorado buys weed and the DEA comes along and seizes it? Should the DEA have to reimburse them? What if they say, "Bruh, I thought it was legal in Colorado." Does that mean they can't be prosecuted unless the DEA can prove that the buyer KNEW it was illegal?

I don't think you can equate guns and weed. Guns, in and of themselves, are not illegal. Weed, at the Federal level, is illegal.

It is illegal at the Federal level for a felon or other prohibited person to possess a firearm. I don't see why Federal law enforcement should be able to seize illegally possessed marijuana without compensation but not do the same with illegally possessed firearms.

[TexasSully]

It is illegal at the Federal level for a felon or other prohibited person to possess a firearm. I don't see why Federal law enforcement should be able to seize illegally possessed marijuana without compensation but not do the same with illegally possessed firearms.[/quote]

[ScottDLS]

The problem with seizing guns from NICS denials is that a denial is not necessarily evidence that the person is prohibited or ineligible to purchase. That's why there is a procedure for appealing NICS denials. Quick example:

You have a name and birthday same as a convicted felon. You get a denial. You decide to appeal with FBI, which takes forever. In the meantime you buy a firearm in a private sale, and you keep the other 25 that you already have and shoot them. Should the ATF kick down your door and take the guns? Why? You're not prohibited. But they may kill your dog and throw a flashbang in your house at midnight and then shoot you when you try to defend yourself with you legally possessed guns.

Or even closer to the scenario being discussed...you get a delay, it lasts longer than 3 business days, the FFL does the transfer and you take your gun home. Later the FBI decides you're prohibited (you are not), and tells ATF to go get your gun. So how do they go about retrieving the gun? The proper way would be to investigate whether the denial was legitimate, perhaps by talking to you, the FFL, and the FBI. If ATF has enough probable cause to believe that you're prohibited (remember, you're not), they take it to a federal magistrate for a warrant to search your house or person for the gun and retrieve it, to be used as potential evidence in a case of illegal purchase/possession of a firearm (which they will ultimately lose).

Now you see that investigating the all the NICS denials may not be as exciting as making other cases and why it may not be a high priority for ATF. There are probably thousands of "false positive" denials per year and the denials need to be thoroughly investigated in order to make a criminal case. In fact, this is one of the reasons why illegal possession cases are rarely investigated or made by Federal law enforcement. They don't want to waste their time, just like the DEA won't waste their time making a simple possession case on 1/4 oz of weed in Colorado.

The other issue of the NICS system is that it can theoretically be used to deny purchase to non-prohibited persons. It is possible to get a denial in NICS if you are an "unlawful user" of illegal drugs. But this is not a prohibiting factor in your ownership. So if you were to lie or make an error on 4473 and get a firearm when you are an unlawful user of drugs...the appropriate crime to be charged would be lying on the 4473. Same for straw purchase for a non-prohibited individual.

There's lots of people lining up to make NICS (that's YOU, Sen. Cornyn) into a bigger overreach and denial of rights. Oh you took Duloxotine (Cymbalta) for nerve pain? You are adjudicated mentally defective, no guns for you. Chantix to quit smoking? That's a SSRI, you must be bipolar. Had a hard time when you came back from Iraq, you're PTSD, no guns for you.

[K.Mooneyham]

What if somebody in Colorado buys weed and the DEA comes along and seizes it? Should the DEA have to reimburse them? What if they say, "Bruh, I thought it was legal in Colorado." Does that mean they can't be prosecuted unless the DEA can prove that the buyer KNEW it was illegal?

I don't think you can equate guns and weed. Guns, in and of themselves, are not illegal. Weed, at the Federal level, is illegal.

It is illegal at the Federal level for a felon or other prohibited person to possess a firearm. I don't see why Federal law enforcement should be able to seize illegally possessed marijuana without compensation but not do the same with illegally possessed firearms.

The difference is in the items themselves. Again, weed is illegal at the Federal level, for individuals to have, in and of itself, regardless of the person being previously adjudicated a felon or not. Firearms are NOT illegal at a Federal level for individuals to have, in and of themselves. The adjudicated actions of the individual make it illegal for them to have a firearm. If the individual in question has been adjudicated a felon, and the firearm is seized, then that would be acceptable. If they have not been adjudicated a felon, it may not be acceptable. So, I maintain that there is a difference between the two.

[treadlightly]

Gee, this seems so simple and so common. If you posses stolen property, whether you know it or not, you don't have rights of ownership.

You might have a great case in civil court against whoever sold you the stolen property, but think government "confiscation" through just a little farther.

If I have a stolen gun - very unlikely scenario - do I have the right to keep it from the lawful owner?

If so, would it be theft to take it from me?

If stealing it would be theft, would police be obliged to investigate and defend my rights to somebody else's loss, or would they have a greater obligation to the rightful owner to investigate and recover his loss?

I'm pretty sure that old saw about possession being nine points of the law is more anecdotal than canon where ownership can be proven.

[OldCannon]

Gee, this seems so simple and so common. If you posses stolen property, whether you know it or not, you don't have rights of ownership.

I don't think anybody in this thread was arguing otherwise