The New FBI Background Check Policy You Should Be Aware Of - Issue #38 - 2022

From Guns: NICS Denial Notification Act Starts

There will be changes starting next week to how firearms dealers interact with customers who receive non-approvals on their background checks. As things stand right now, if a person tries to buy a firearm in a gun store and is denied on their NICS (background) check, the sale is rejected by the vendor, and the customer is turned away.

This process is sometimes called a "lie and try" because this is when a felon or someone with a restraining order against them lies on the ATF Form 4473 (Firearm Transaction Record) and tries to slip through the cracks for the purchase of a firearm. It's relatively common to see this in the day-to-day operation of a gun store, and it poses a legitimate risk for the firearms dealer in terms of legal liability.

Lying on the background check questionnaire and hoping for an error or oversight in the background check system has always been a low-risk way for felons to try and buy guns on the white market. But this will change next week.

On or after Monday, if a person is denied a firearm sale due to their background check, the FBI will be required to refer the incident and the customer's address to state and local law enforcement. The updated procedure has to be in effect by October 1st, and so it's being rolled out a week prior, presumably to iron out any software or procedural glitches. The new policy is mandated by what's called the "NICS Denial Notification Act" (H.R. 1786), and it's part of the Consolidated Appropriations Act of 2022, a budget bill that passed earlier this year.

At present, 37 states rely on the FBI to process NICS checks for firearm sales. The remaining 13 states rely on state law enforcement agencies to facilitate the NICS check. Some – but not all – of the states that facilitate their own NICS checks already require that non-approvals are referred to local law enforcement.

The NDNA will close the gap, and local law enforcement in the 37 states that use the FBI's NICS system will begin receiving notifications that felons or otherwise prohibited persons are attempting to obtain firearms illegally.

in the 37 states and the District of Columbia that rely on the FBI to run some or all their background checks, local authorities generally are not aware when a person in their area fails a background check. Individuals who are willing to “lie and try” to buy a gun may be dangerous and more likely to obtain guns through other means. As a result, these states and D.C. lack crucial law enforcement intelligence that could be used to keep their communities safe.
 
The NICS Denial Notification Act:
 

• Requires federal authorities to alert state and local law enforcement of background check denials, so that these authorities can decide whether to investigate or prosecute these denied individuals.
   
• Requires the Department of Justice to publish an annual report with statistics about its prosecution of background check denial cases, so Congress and voters can hold officials accountable.

Concerns

NICS denial reporting is one of those ideas that sounds decent to the general public but may have some seriously negative consequences for people who have done nothing wrong.

In my experience, there's a pretty high chance that a person who gets a NICS denial is not actually a felon or prohibited possessor. My take is anecdotal, but probably 10-30% of the time that someone gets a non-approval, it's because they have a common name and have been misidentified, share a name with a family member who is prohibited (usually this is a father/son/junior/senior thing), or have been involved in misdemeanor crimes that are not 'closed out' properly or are from a pre-digital era and a NICS examiner simply marks them as a non-approval out of caution when digital records are not readily available.

I can see this new vigor for law enforcement to scrutinize NICS denials being a fresh source of leads for wrong address no-knock raids, innocent people getting shot in their sleep (the officer was in fear for their lives), or other varieties of law enforcement abuse. The simple matter of fact is that the NICS system is nowhere near foolproof. So while this law may seem to make sense at face value to normies, my guess is that it will be misused by activist sheriffs in anti-gun jurisdictions and innocent people will suffer for it somewhere along the way.

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