Welcome back to The Legal Brief, the show where we CRUSH the various legal myths and
misinformation surrounding various areas of the gun world.
I'm your host Adam Kraut and today we're talking about USA Today's article regarding firearm seizures.
The NRA Board of Directors election is right around the corner.
I know a lot of you are very interested to hear about my stance on the problems gun owners
face.
Head on over to my website adamkraut.com to learn more about my views on the issues.
The link is in the description.
I know a lot of you guys are anxious to discuss National Reciprocity since it has gotten out
of committee.
Given that by the time this airs, it will likely have been voted on by the House, I
feel that I'd be doing you a disservice by trying to film an episode on it now.
We'll come back to it after the dust has settled.
Now, USA Today published an "exclusive" article which found that the FBI issued more than
4,000 requests last year for ATF agents to retrieve firearms that were transferred to
individuals who turned out to be prohibited persons.
That number was actually 4,170.
If you don't know what a prohibited person is, be sure to the check out the video we
did on that previously.
It's worth mentioning the largest category of individuals who are prohibited are those
that are encompassed in 18 USC 922(g)(1).
Remember, that's the category of individuals who were convicted of a crime punishable by
more than one year imprisonment.
And that crime also includes a state law misdemeanor punishable by more than two years imprisonment...because
two means one and ah hell, politicians probably aren't good at math right?
That also means that things like DUI, making a false statement on a government form, etc.,
can all be prohibiting offenses.
Not just violent felonies.
If you weren't aware, FBI is the agency responsible for running the National Instant Background
Check System or as you probably better know it as, NICS.
ATF is responsible for enforcing gun control regulations, which is why FBI sends ATF to
retrieve firearms mistakenly transferred to prohibited persons.
So we have a background check system intended to stop prohibited persons from obtaining
firearms, but yet, in certain instances prohibited persons are still able to get them after submitting
to a background check.
How is that possible?
The most likely answer to this question is that federal law does allow for the transfer
of a firearm three business days after no response from NICS.
The law only states that a licensee shall not transfer a firearm unless they receive
a unique transaction number OR three business days have passed.
The law does not force a licensee to transfer a firearm after those three business days.
As a result, most dealers tend to shy away from this allowance in the law because they
are concerned with the individual being a prohibited person and the liabilities that
may be associated with such a transfer.
So how does this all work?
When a gunshop contacts NICS, they get one of three responses.
Proceed, Delay and Denied.
Options one and three are very clear.
However, if a gun shop contacts NICS and receives a delay response, that starts the clock for
the three business day countdown which is found in the Gun Control Act.
If the shop does not receive an updated response after the third business day, they are able
to lawfully transfer the firearm to the individual.
For example, if Bubba, our favorite resident criminal, went to the shop to buy a gun and
got a delay response on Monday, the shop could lawfully transfer the firearm to him on Friday,
if they had not received an updated response from NICS.
Which begs the question, what if Bubba was actually a prohibited person and the firearm
was transferred after NICS failed to give a response within three business days?
NICS does not stop researching the individual until they reach a determination as to that
individual's status.
So, if the NICS examiner turns up information that Bubba was prohibited, they then issue
a request to ATF to retrieve the firearm, assuming it was transferred.
Alternatively, if they examine the records and find that he was not prohibited, they
would update the status to Proceed.
The article also points to a 2004 and 2016 Office of the Inspector General report which
reviewed ATF's firearms retrieval.
I've included links to those in the description.
The 2016 report found that out of the 125 firearms retrieval instances sampled, 116
firearms were recovered, roughly 93%, which included all of the firearms FBI erroneously
approved the transfer of.
Interestingly, and somewhat relevant to a different topic, the OIG also identified a
group of approximately 50,000 transactions where ATF and the FBI have an ongoing dispute
that should be resolved as to whether certain transactions involving the prohibited category
"Fugitives from Justice" should be denied.
We'll likely circle back to that in the future.
And that ladies and gentlemen, is how a prohibited person may actually be able to get through
a background check and obtain a firearm that the law prohibits them from having.
Of course, that doesn't mean ATF won't be knocking on their door later on to correct
FBI's mistake.
I hope they don't have a dog.
Tired of old wives tales being whispered around the gun counter?
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And as always thanks for watching!
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