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NICS Denials and Appeals

If you were denied by NICS for an event that took place in New York State, whether it was related to police contact, family court, or a hospital visit, we can help you restore your Second Amendment rights.

As many of you know, the purchase of a firearm in New York requires approval through the National Instant Background Check System (“NICS”). Put differently, the background of the purchaser is required to be checked through NICS to ensure that s/he is legally eligible to possess firearms.

Many times, when a person is told by the FFL that their NICS check result is “Denied”, after their initial embarrassment, they are often confused because they cannot think of any event that would be a prohibitor to firearm possession. Some individuals even already own rifles and/or shotguns and now learn that they cannot legally possess a firearm in New York.

First, obtain the transaction number for the purchase (the “NTN”) , which is available from the Federal Firearms Licensee (FFL/gun shop) that performed the NICS check . The NTN is required to find out why NICS denied the transaction.

A denial by the NICS system is triggered by an underlying event or condition – or what NICS perceives as such. There are many underlying conditions and events that could trigger a NICS denial. The most common are consistent with the statutory federal prohibitors: felony conviction, misdemeanor conviction of domestic violence, current order of protection, dishonorable discharge from the military, etc.

In New York, a conviction of any type of “serious offense” misdemeanor is a prohibitor to firearm possession under Penal Law 265.00(17). “Serious offense” misdemeanors include Criminal Possession of a Controlled Substance and Criminal Possession of a Weapon, among many others on the list. So, the arrest you had for a pocketknife when you were hanging out with your buddies in high school may have actually resulted in a conviction for a serious offense that terminated your 2A rights. Getting your firearm rights restored with a Certificate of Relief is a related topic that generally goes hand-in-hand with the NICS denial. Once your rights are restored, the issue that caused your NICS denial will be resolved.

NICS denials come about as a result of information in the databases of the New York State Division of Criminal Justice Services (“DCJS”) and /or the New York database for mental health related issues.

The DCJS database contains all of the information related to arrests, charges, summonses, dispositions, and orders of protection issued against an individual. Some NICS denials are caused by court failure or human error. For example, an order of protection is issued against you but is ultimately vacated by the court or has expired. If that information is not properly reported by the court to DCJS (or is entered incorrectly by DCJS), NICS will deny your purchase. If you were arrested for a charge that is a prohibitor but the charge was dismissed or you were convicted of a non-prohibitor, but there is no disposition reported by DCJS on your criminal history, you will be denied by NICS.

On the mental health frontier, federal and state laws identify involuntary commitment and adjudication of a mental illness as prohibitors. Note – I did not say being involuntarily taken to a hospital. “Commitment” and “adjudication” are specific legal terms identifying due process – a guarantee under the Fourteenth Amendment.

In New York, if you go to a hospital – voluntarily on your own or with a family member or with the police – and someone there thinks you are feeling a bit down, be prepared to be on the SAFE Act list and denied by NICS. You would have received no due process involved, no notice, not even a piece of paper in your medical chart to alert you that you are on the SAFE Act list. Many people only learn they are on the SAFE Act list when they try to purchase a firearm, or apply for a position with law enforcement or the federal government – and none of them received due process, none of them were committed to any mental institution, and none of them were adjudicated as having any mental illness. A clear and obscene 14th Amendment violation.

At this moment, most of those I have been in contact with are located out side of New York and unable to pursue a federal lawsuit against the State. I encourage anyone in the Southern or Eastern Districts of New York who has encountered this situation to contact me to discuss bringing a federal lawsuit.

Whatever the reason for your NICS denial, I have probably encountered it before and, most likely, have helped other clients overcome the same hurdles to lawful firearm possession. Stay safe and God bless you.

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