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Old July 23, 2009, 03:35 AM   #1
Marktron
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Purchase DENIED! (Advice?)

Howdy All,

I've got a question for those of you who are knowledgeable and/or interested in the legalities of firearms ownership. Much to my surprise, I was recently DENIED on a handgun purchase in Colorado, and I hoped that some of you folks might be able to offer some constructive advice as to what I should do to clear this up.

Background: In 2003 I was arrested for domestic battery in Illinois. Not a typical domestic battery situation in that the so-called victim was a male roommate who picked a fight with me specifically to call the cops and try to get me arrested, a provocation which I, in my callow and impulsive youth, stupidly responded to. In other words, I gave the guy what he wanted and kicked his !@#, and got arrested in the bargain. Since we lived in the same house, it was considered "domestic battery," even though he was twice my size and had really instigated things by any reasonable measure... I digress.

At any rate, I was 20 at the time and had an otherwise clean record, so the charge was quickly reduced to "simple" battery (not domestic battery), and I was thankfully granted court supervision and so NO CONVICTION was ever entered on my record. Though I still feel like the original arrest was not entirely fair, I have accepted my own role in the whole debacle and have tried to learn from it. As a result, I have scrupulously avoided any illegal conduct ever since, and have never been arrested for any other offense.

With all of this behind me: no convictions on my record, the terms of my court supervision satisfied years ago, and no further trouble with the law, in Summer 2008 I applied for and received an Illinois Firearm Owner's Identification Card (FOID), which requires a background check and disqualifies anyone with a conviction for domestic battery. I received the FOID with absolutely no problem or delay, which should reinforce my statement that there is no disqualifying conviction on my record. In addition, a few months AFTER receiving my FOID, I petitioned the State of Illinois for expungement of the arrest records, which was handily granted. I received documents from the Illinois State Police confirming that the arrest record had been destroyed, and that my record was officially clean. Sounds good, right?

Well, I never actually purchased a firearm in Illinois, and about a year ago I moved to Colorado for professional reasons, so now I am officially a Colorado resident. Since I already had no convictions on my record, and as of winter 2009 now have no arrests on my record, plus I had undergone a background check last year to receive the FOID card in the first place, I assumed there would be no problem purchasing a firearm in Colorado, particularly since Colorado's firearms laws seem much less stringent than the Land of Lincoln's. Wanting to do things the right way, I trained with a fantastic former police firearms instructor in Colorado to fulfill Colorado CCW requirements, but didn't want to apply for a CCW permit until I legally possessed and trained with my own firearm for some time. Ok, sounds good, right? The next step was to buy a firearm, which I did through an excellent local shop in Colorado, but the guys at the shop were sorry to inform me that my purchase was denied through whatever Federal database Colorado purchases are approved through.

So my question is this: What is the process by which I can remedy this situation? Since I haven't gotten so much as a speeding ticket on my record since 2003, and don't have any of the other issues mentioned in form 4473 (no mental, drug, or US loyalty issues), I assume that there is nothing else besides maybe identity theft that could be disqualifying me. The guys at the gun shop told me that the Federal databases record all arrests as well as convictions, and that sometimes if there is a disqualifying arrest still on the record even with no disqualifying conviction, the database errs on the side of caution and denies a purchase request even if the applicant's criminal record is now technically clean.

Anyway, I've been very careful to avoid any illegal conduct since this whole sorry incident in 2003, have no convictions on my record for any offense, recently got the arrest removed from my state record, was granted an Illinois FOID with no trouble whatsoever, but still was denied in Colorado. I assume this is because the Federal database still has my original 2003 arrest, but has not been updated to reflect the outcome of the case. (i.e. no conviction, arrest expunged). I've made a real effort to stay on the right side of the law ever since, and have paid a substantial sum in legal fees to get the arrest off my record, as well as paying to get proper CCW training in Colorado and several hundred bucks to buy the firearm that I am now apparently not allowed to have. What is the process by which I can appeal this denial and legally receive the firearm and go about my business? (And specifically, how can I do this WITHOUT paying exorbitant fees to a lawyer to take care of this?) Thanks, your advice is really appreciated!
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Old July 23, 2009, 03:49 AM   #2
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If everything you say is correct then you're probably overthinking the situation.

It's possible someone with the same name (and a record) is popping up when they run your check. It happened to a guy I work with. Took him a month or so to get it sorted out and pick up his gun.
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Old July 23, 2009, 05:58 AM   #3
tomgun
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try this

i had a simalar sit on my 3rd gun purchase....call the state police and request a reverse denial fourm.
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Old July 23, 2009, 01:21 PM   #4
NavyLT
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Since I do not believe that Colorado uses a state database, but instead uses NICS, simply file a NICS appeal. The gun dealer should be able to help you out with that. The computer probably saw the case and automatically denied it and, via the NICS appeal, is going to take an intelligent human to dig deep enough to determine the real circumstance and reverse the denial.

After that, you can get a NICS PIN number (I think) and be able to breeze through the NICS process in the future with no problems.

Here's some more info:
http://www.bugoutwhale.com/forums/showthread.php?t=1194
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Old July 23, 2009, 02:25 PM   #5
sholling
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I'm no lawyer but my understanding is that once arrested for domestic assault, accepting any plea to any lessor charge i.e. simple battery or assault is still a legally a conviction for domestic violence. I would see an attorney specializing in guns because it's probably going to take some expertise to work through the roommate angle and you're likely to do far far far more harm than good to your case by handling this yourself.

http://www.supremecourtus.gov/opinions/08pdf/07-608.pdf

Essentially congress and the SCOTUS adopted the premise behind the Napoleonic Code that it's far better that 10,000 innocent men be stripped of their rights as citizens than one domestic abuser have access to a gun.

Note that some jurisdictions have expanded their domestic violence statutes to include yelling or walking outside (away) and punching a wall.
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Old July 23, 2009, 05:02 PM   #6
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The Internet is not the place to come for legal advice on a real life situation you're in. Contact a qualified lawyer.
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Old July 23, 2009, 06:45 PM   #7
Marktron
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Thanks for the replies and links. I think NavyLT is probably right about just needing to have an actual human (wow, imagine that...) go through the records and straighten it out, so at this point I'll probably try to go through the typical NICS appeal process and see where that gets me. I am calling state offices and looking up websites to get the background info I'll need- looks like it may involve some hassle and I'll be dealing with my lawyer if necessary, but I do think I'll be able to clear the issue up eventually. And Fiddletown, I posted on my situation because I thought there might be some law-abiding firearms enthusiasts who've experienced and dealt with similar issues who could offer some advice, not because I expect to get proper legal services on an internet forum.

Sholling, I dunno what jurisdictions you are accustomed to, and I'm not an attorney either, but it seems to me that nobody (including prosecutors) would want a system in which domestic battery charges couldn't be plead down to convictions or court supervision on lesser charges. Mandating that all arrests for domestic battery result in convictions for domestic battery essentially removes the State's leverage in offering plea bargains, and instead of having first time offenders quietly pleading guilty for lesser charges, paying a fine, and going about their business, they'd all fight it in court and clog up the system because if the state won't offer you a deal, what can you do but fight the charges? Anyway, the whole process sounds crazy to me: You are arrested for crime X, charged with and plead guilty to crime Y, and are convicted for crime X anyway with no mention of the charge you actually pleaded guilty to? I'd be amazed if that were common practice in any US state, and if so, I bet it's counterproductive and of dubious constitutionality. Maybe you can enlighten me on this.

For my part I was only persuaded to plead guilty in 2003 because the state was willing to reduce the charge to simple battery and offer court supervision, thus guaranteeing that no conviction would be entered onto my record. Since then I also got the arrest expunged, which in the State of Illinois means that the original arrest and court records were released to me, and all copies held by the state are supposed to be destroyed, and the arrest purged from the Illinois State Police database. So, theoretically I'm supposed to be totally clean, but the NICS maintains records of all arrests as well as convictions, and doesn't necessarily remove arrest records when they are expunged or sealed at the state level. My understanding is that NICS sometimes automatically disqualifies applicants if the arrest shows up but no non-conviction outcome is displayed. Based on what several knowledgeable people have told me, when the NICS database sees an arrest for domestic battery but no conviction, it sometimes just assumes a conviction and it's up to the applicant to prove that the arrest did not result in conviction. (The ol' guilty until proven innocent thing...)

I am absolutely positive that there is no conviction on my record for domestic battery or anything else- successfully completing court supervision in Illinois results in no conviction for the offense. I've also passed other background checks for professional reasons that I definitely would not have passed if I had any misdemeanor convictions on my record, so I'm pretty confident that the only record that still remains of the whole incident is the arrest record in the Fed database.

Thanks for that SCOTUS link, although I'm not entirely sure how Hayes applies to my situation. As far as I could tell, Hayes was about what kind of relationship between offender and victim constitutes domestic battery as far as the Feds are concerned. As far as the State of Illinois was concerned as of the time of my arrest, living under the same roof constitutes domestic battery even if there is no other relationship between the subjects. (Personally I think the law is overly broad, and I think it's ironic that I got immediately arrested and run through the wringer for domestic battery after fighting with a male roommate, and yet I've still seen cases in which guys seriously BEAT UP their wives and girlfriends and the police let them get away with it... But I guess that's another issue for another day.)

On the other hand, the NICS brochure on disqualifying domestic violence convictions lays out the definition of domestic relationship pretty clearly, and it appears that you've got to have a pretty close ongoing domestic relationship with the complainant in order to be disqualified under the NICS rules. The link: http://www.fbi.gov/hq/cjisd/nics/mcdvbrochure.pdf

Either way, all the NICS documents I've found say convictions disqualify, but not arrests alone. Since I've got no convictions on my record at all, I should be in the clear, but once again, it's up to the applicant to prove that they are in the clear if the database hasn't been updated to reflect non-conviction. Geez this stuff is byzantine.

Anyway, thanks folks, and if anyone has experience in successfully appealing a denial, I'd be glad to hear about it.
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Old July 23, 2009, 07:19 PM   #8
Microgunner
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I've never been denied but as a FFL dealer many of my customers have been. All that knew they were eligible and appealed the denial were exonerated and allowed to collect their firearm. If the authorities are wrong, appeal.

PS Some misdemeanor convictions can cause you to be denied for a period of time. Violent misdemeanors especially. How long ago, if you don't mind revealing your age?
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Old July 23, 2009, 07:27 PM   #9
Dustin0
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File the NICS appeal its really all you can do request a UPIN also so it wont happen again.
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Old July 23, 2009, 09:20 PM   #10
PT111
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One advantage of having a SC CWP. Don't have to mess with the NICS.
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Old July 28, 2009, 09:28 PM   #11
MJAtl
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File the appeal and apply for a concealed carry permit (if possible).

A friend of mine had a delayed background check that went past 30 days and the shop still wouldn't release the firearm to him even though they could. He applied for a permit and after talking with the court clerk found that an arrest when he was 19 or 20 on pot possession was the problem. Since he plead to and was convicted of a misdemeanor 'disturbing the peace' it shouldn't have counted but the arrest was still there. He received his permit and then his firearm within 16 days.

Not sure what your local laws are but if you're clean, qualify, and the permit exempts you from the NICS check it is worth it.
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Old July 28, 2009, 10:16 PM   #12
jon_in_wv
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How can you "plead to simple battery" but not have a conviction entered?? That doesn't make sense. The fact you were sentence to court supervision doesn't negate the conviction that gave them the right to impose a sentence, ie. supervision. Sounds to me like you have the conviction on record but the issue to hammer out is whether or not it is legally considered a "domestic battery punishable of up to one year in prison". It possible to squeek through the cracks and not have a conviction reported to the FBI but once its there you are out of luck.
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Old July 29, 2009, 03:56 AM   #13
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Actually, I personally know of a case similar, where a frined of mine was arrested for domestic violence, first time offense, pled lower, and was sentanced to anger management, (the whole thing was bogus, but the court cares not), and when he completed it in Pima County, he recieved a letter staing that his record was clear, and SPECIFICALLY mentioned his right to own firearmas was restored, as no conviction would be on his record. I saw the letter, so yes, it does happen.
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Old August 1, 2009, 10:47 AM   #14
jon_in_wv
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Was the lower charge punishable of up to one year in jail? If it wasn't, it wouldn't disqualify him right?

Also, the right disqualifying you from owning a firearm is a FEDERAL law. Any letter given by the state, county, whatever, isn't really worth the paper its written on when the Feds some for you.
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Old August 3, 2009, 12:40 AM   #15
rlong5
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Guess I'm late chiming in on this one, but here's the appeal info that you need. You have to go through the state agency -Colorado Bureau of Investigation. CBI Appeal Info
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Old August 19, 2009, 04:23 AM   #16
Marktron
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Thought I'd update everyone who bothered to chime in: I completed the Colorado NICS Appeal paperwork with supporting copies of court documentation from Illinois demonstrating that no conviction was ever entered on my record, and that the arrests have been removed from Illinois databases. Colorado Bureau of Investigation returned the documents to me with a letter saying that the Colorado database has now been updated to approved, and that I can make my purchase, and shouldn't have any problems purchasing in Colorado in the future.

I've read some real horror stories about people getting denied and ending up bogged down in paperwork and waiting 6 months for a reply to their NICS, but in my case the people at CBI were actually pretty helpful and prompt in getting me squared away. Thanks to all for the advice and comments.
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Old August 19, 2009, 05:51 AM   #17
PT111
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Good news. Hope everything else goes well.
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Old August 19, 2009, 09:46 AM   #18
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That's great news. Enjoy your rights.
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Old August 20, 2009, 05:55 PM   #19
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Hmmm....something's not right. The system's actually working?
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Old August 20, 2009, 06:57 PM   #20
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Post a pic of your gun when you get it.
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