They want gun back after clearing NICS!

[Algunner]

Ok I own two shotguns and two 22 rifles. One was bought by my parents before background checks were required. The other three I inherited. So I have decided to buy a gun, not for defense but as a new hobby. It is a used 22 revolver, plan on a center fire handgun next. The NICS came back delayed and I left the gun with the FFL. The next day they called and said the NICS had cleared, so I picked the gun up. Yesterday they called back and said the NICS was changed back to delayed and they recommended that I return the gun. This may be related to having a secret clearance when working for the Air Force. I am now retired.

So should I return the gun? Can they demand that I return it? Can they take my other guns if they deny it? What should I do?

[44 AMP]

First off, I'm not a lawyer, and this is not valid legal advice, just advice from what I consider a common sense point of view,

Delayed is NOT "Denied". It just means that something in the system tripped a flag requiring a closer look and (perhaps) a human evaluation of the information. I have seen a high govt security clearance cause a "delayed" response from NICS.

Once. Quite a few years ago. The delayed customer was rather upset, as he had purchased many firearms and always passed the check instantly.

He filed the appropriate paperwork and pushed it up the chain. He had a squeeky clean record, and his clearance was actually higher than the supervisor of the agents running the NICS checks, and he was demanding an explanation why he got delayed.

He got an explanation, that it was a glitch, and the system does not inform the agent, or the dealer WHY it is delayed, only that is it. He also got an apology from the NICS folks and in the couple decades since then, he has purchased several firearms, and has never been "delayed" again.

they recommended that I return the gun.

Note the word "recommend". This is the shop trying to cover their ass, just in case. They are asking, not demanding, because they have no right to demand.

What this comes down to is, who made the error, and what to do about it.
IF the NICS "mistakenly" issued approval, that's on them, and both the shop and you are blameless for acting in good faith on the information the govt supplied.

IF the shop screwed up, and thought you were approved when you weren't, then that's on them, and I'm sure they would like the gun returned to cover their butts until they are certain your approval is valid.

IF you wanted to be a nice guy, you could return it, but you are not obligated to. The transfer, once done, is done. You own the gun, the govt approved it. DONE.

Now if the govt decides they made an error making the approval, you have legal recourse and the govt must prove their case. I do not believe they can force you to surrender the gun, unless/ until they do that. THEY made the "mistake", you didn't.

Unless there is something in your record (that you haven't told us about) that would make you a prohibited person, there is nothing legal that I know of that would allow them to take your other guns, or even the gun in question under the delayed/approved/delayed issue.

I'd say first thing, find out the steps and get the paperwork needed to require the system to explain why you were delayed, etc. Prepare to get a lawyer, but don't hire one just yet, this whole issue might go away in a day or three with the NICS, "updating" your record with an approval.

BE calm, be rational, if possible, be patient. DO NOT get angry, do not do or say anything that might be construed as a threat, against anyone.

You have the gun. Don't surrender it, without a legal order to do so. Follow all the rules, but don't let a "paper work error" trample your rights. The govt will fix an honest mistake on their part. Not always rapidly, and sometimes, not without the "prodding" of an official query or protest, but if they are in the wrong, when they recognize it, they will fix it, and at that point, the entire issue becomes moot.

Stand your ground, you did nothing wrong. Get prepared to take legal action in response, but wait until it is proven necessary, before you act. IF the cost of getting legal advice now is acceptable, talk to a lawyer now. Bet they'll tell you pretty much the same things I did. IF not, follow their advice over mine, every time!

[MC 1911]

I have never seen a NICS approved then changed back in all the years I've done paperwork. Sounds to me like the store screwed up & accidently released the gun if it was still delayed.

[dogtown tom]

Algunner.......the NICS came back delayed and I left the gun with the FFL. The next day they called and said the NICS had cleared, so I picked the gun up. Yesterday they called back and said the NICS was changed back to delayed and they recommended that I return the gun.

First.....what state is this?

If the FBI NICS check was originally a delay, then changed to a proceed......it would be deleted at midnight Central time that night.

If the FBI NICS check was originally a delay, then NICS would give the dealer a Brady NTN date that is "Three business days, beginning the next business day, not including weekends, holidays or days state offices are closed". The Brady Law does not prohibit the dealer from transferring the firearm after that date.
It's possible that the dealer called you to come back because the NTN date had arrived, but the status had not changed from "delayed".

This may be related to having a secret clearance when working for the Air Force. I am now retired.

FBI NICS checks have absolutely nothing to do with secret clearances. Its a name and descriptive information check against a list of prohibited persons. Delays are due to NICS needing more time to complete the check.

So should I return the gun?

I would. If your background check is denied guess who gets notified that the customer was denied and gas the gun?

Can they demand that I return it?

Sure. They can demand anything they want.

Can they take my other guns if they deny it?

If you are denied because you are a prohibited person (all those questions you apparently checked "No" on the Form 4473) then its not just this gun.....but any and all firearms are prohibited for you to possess.

What should I do?

Take it back. Tell clerk "Ya'll owe me one". If they messed up and gave it without the proceed or before the delay period expired......thats a serious violation of federal law by the dealer. You would be saving their butt.

[dogtown tom]

44 AMP .... I have seen a high govt security clearance cause a "delayed" response from NICS.

Doubtful.
FBI NICS is prohibited from giving the dealer the reason for a delay.
Second, the "security clearance" myth has been disproven many, many times. Think about why that is.

Once. Quite a few years ago. The delayed customer was rather upset, as he had purchased many firearms and always passed the check instantly.

He filed the appropriate paperwork and pushed it up the chain. He had a squeeky clean record, and his clearance was actually higher than the supervisor of the agents running the NICS checks, and he was demanding an explanation why he got delayed.

NICS will not give reasons for delays. Thats because by the time the buyer submits his written request, the NICS delay period has expired.

Remember, whether the buyer has a "squeaky clean record" doesn't matter. Since NICS is a name and descriptive information check the system will return records on prohibited person with the same or similar name and descriptive information.

He got an explanation, that it was a glitch, and the system does not inform the agent, or the dealer WHY it is delayed, only that is it. He also got an apology from the NICS folks and in the couple decades since then, he has purchased several firearms, and has never been "delayed" again.

When denied, FBI NICS will tell the buyer/transferee the reason for the denial. They don't do that on delays. Never have.

IF you wanted to be a nice guy, you could return it, but you are not obligated to. The transfer, once done, is done. You own the gun, the govt approved it. DONE.

Not exactly.
I've had a customer who picked up his firearm at the end of the delay period (which is lawful) and a month later FBI NICS calls to tell me that transaction was now "Denied". I faxed the 4473 and the FBI/ATF/local PD took it from there.

Just because you walk out the door doesn't mean "once done, is done".

[Algunner]

Unless someone here has done NICS (on the FBI side) or the FBI has said they don’t do security clearance checks. I don’t see how anyone could be sure they don’t check. I think it would be wise that they check that there are no security clearance violations.

[Algunner]

Also I was truthful on the form. And only a misdemeanor with a max 30 day imprisonment on my record 50 years ago. I paid a $20 fine.

[Algunner]

Also they said I didn’t have to return it because 5 days had passed but recommend I return it. I think I may take it to the range and then return it.

[ballardw]

Originally Posted by Algunner

Also I was truthful on the form. And only a misdemeanor with a max 30 day imprisonment on my record 50 years ago. I paid a $20 fine.

Unfortunately some of those old misdemeanors may be treated as "domestic violence" and can make you a prohibited person.

[ghbucky]

As a general FYI:

DOD and DOJ clearances do not cross the pillars. The DOJ is not aware of any DOD clearances, and vice versa... as it clearly should be.

I've also been told that DOE (as in nuke plants) also have their own pillar of clearances, but I've never had anything to do with those other than hearsay.

BPM DOES know that you hold clearances 'over there', but that is about it. But the agencies themselves are not aware of it*

Source: I once held a FBI TS badge based on my DoD TS clearance without going through additional background checks.

* caveat: China does know everything about your clearances, since BPM has repeatedly been compromised by them.

[Skans]

Originally Posted by ballardw

Unfortunately some of those old misdemeanors may be treated as "domestic violence" and can make you a prohibited person.

Stuff like that should get expunged. Most free states have reasonable laws regarding expungement of old offenses like that. May still show up on NICS, however.

[Algunner]

Originally Posted by ballardw

Unfortunately some of those old misdemeanors may be treated as "domestic violence" and can make you a prohibited person.

That is a separate question and I said I answered truthfully. It had nothing to do with violence of any kind.

[dogtown tom]

Algunner Unless someone here has done NICS (on the FBI side) or the FBI has said they don’t do security clearance checks. I don’t see how anyone could be sure they don’t check. I think it would be wise that they check that there are no security clearance violations.

Again, the FBI NICS check is a name and descriptive information check against a list of prohibited persons. The FBI NICS website describe the databases used for a NICS check.

The mere fact of having a "security clearance" has nothing to do with anything. If the person had a "security clearance violation"......depending on the type of violation it may have been a felony, therefore a prohibited person.

I have dozens of FBI/USSS/Federal Marshals/DEA customers including USSS special agents on the Bush protective detail. All have some level of top secret clearance. None experience delays.

Further, I have HUNDREDS of customers who have security clearances because of the nature of their work at Texas Instruments, Raytheon, Collins Aerospace, L3, Lockheed and General Dynamics.

Any delays would be the result of the buyers name and descriptive information matching that of a prohibited person. It may take additional research by NICS Examiners to determine if they are different persons.

[dogtown tom]

Algunner Also I was truthful on the form. And only a misdemeanor with a max 30 day imprisonment on my record 50 years ago. I paid a $20 fine.

Having any criminal history or record may mean a delay. Often, the agency or court that sent the records to the FBI didn't include the disposition of the case.

Ex: You were charged with a misdemeanor. Depending on the state, that may mean more than a year imprisonment. (some up to five)
Right before trial, the prosecutor downgrades the charge if you agree to plead guilty and pay a fine and court costs. You agree and get on with your life.

But, as often happens, government isn't as efficient as we want. The court neglects to note the disposition in records that they are required to submit to the FBI in a timely matter.

Years later, you attempt to purchase a firearm and the NICS check that you passed for the last two decades now shows a criminal charge for a buyer with the same or similar name as you. FBI NICS delays approving your transaction because they need to contact the court or agency to see if there was a disposition. This is the reason for a NICS delay.

[Bob Womack]

Not arguing at all here, but curious. I live in the middle of the largest concentration of military bases in the country. Service people are everywhere. They even have second jobs at the gun stores. Every local gun store I've dealt with has encountered delays specifically on military people. Every store I've been in when a hold has happened has asked whether the purchaser was military. When they've been told yes they've always replied that they are often required to hold the weapon on a purchase by a military person. I've encountered it a number of times. In fact, I've never overheard a hold happening that WASN'T for a service person.

Myth? If so, then it is often propagated around these parts.

Bob

[Algunner]

As I said the misdemeanor had a maximum of 30 days in prison. Even if it had been first degree it would have been exactly one year, but it was third degree.

[Algunner]

As to simply more time to check not having to do with secret clearances. Well they would have to go to the agency to find out which would take more time.

As for that it would be on your criminal record if you violated your clearance? Well sometimes they don’t want any body to know about it and records are sealed.

[44 AMP]

It was over 20 years ago, but I know the fellow it happened to, and I trust his word as good, and what he got told (which may, or may not be true) is that he got a "hold" because the system flagged him (he does have a fairly common name), and that the system flagged the file because it had something out of the ordinary and the system wants a person to review it, before proceeding.

They did, and the only thing uncommon about his record was that he had a security clearance (a couple levels above secret) and nothing disqualifying at all, and since then, the system has never again done it to him.

Computer systems and programs are the fastest idiots known to man. Impressively competent at what they are told to do, when something happens they're not specifically told how to handle, they resort to either hanging up, or a default that sends the decision to a human.

Since the delay has never happened to him again, I suspect there was "note from the teacher" attached to his file, giving the system the ok to go ahead, from that point on.

I know what happened, I know what they told him the cause was, and I know that they "fixed it". Don't know if what he was told the actual truth, or something plausible as an explanation to avoid an unpleasant/embarrassing reality,. Or something else.

[stagpanther]

May or may not be related--but I had a security clearance when I worked as a contractor and back in 2015 the government database at OPM was hacked--my information along with that of millions of others was downloaded and is now widely peddled on the dark web. I've been under continuous hacking and ID theft attempts ever since. I could see that fraudulent or multiple instances of person's ID use might be cause for concern and further investigation--but that is just conjecture on my part.

[rickyrick]

I wonder if that would be an issue if you have a state issued handgun license.
When I buy a gun, I present my LTC and I’m exempt from the check. The manager’s paperwork states “Exempt” on the top. I just bought a shotgun a couple of weeks ago.
I still have to fill out the form.
It’s still interesting that a security clearance would hang things up, seems like the opposite.
I contracted for a few years after the Army, but the only issues I had faced was at the airports. This subsequently faded with time.

[Algunner]

I can find no reference to getting a delayed after getting a proceed in NICS. Yet that is what they said happened. Another employee looked it up in history and verified that is what happened. Is that even legal? I figure someone in the FBI screwed up or the store screwed up and is lying about it.

[44 AMP]

It’s still interesting that a security clearance would hang things up, seems like the opposite.

Frome what I've been told (and with no way to know if that is correct, or not) what hangs up the system, when/if it happens isn't the security clearance, but the fact that there is something that trips the system response to hold, until a human reviews it. The system doesn't know what that item is, only that because there is something "extra" there, that requires a human evaluation.

The system goes "on hold" and sends out a "delayed" message, until a human tells it to proceed. I understand the reasoning, and while you or I might consider it a "bug", I'm sure the programmer(s) feel its a "feature".

[Rhodester]

If you decide to take it back, before you do, tell them they owe you a 50% restocking fee over and above what you originally paid.

[dogtown tom]

Bob Womack Not arguing at all here, but curious. I live in the middle of the largest concentration of military bases in the country. Service people are everywhere. They even have second jobs at the gun stores. Every local gun store I've dealt with has encountered delays specifically on military people. Every store I've been in when a hold has happened has asked whether the purchaser was military. When they've been told yes they've always replied that they are often required to hold the weapon on a purchase by a military person. I've encountered it a number of times. In fact, I've never overheard a hold happening that WASN'T for a service person.

Myth? If so, then it is often propagated around these parts.

I assume you are in Virginia. If so, Virginia gun dealers do not run their background checks directly with FBI NICS. Virginia is a "point of contact" or POC state, meaning a state agency is between the dealer and the FBI NICS. What you describe above fits what POC states do.....they may have additional state laws and procedures that non POC states dont.

State POC's with a couple of exceptions, seem to be very anti Second Amendment.

[Bob Womack]

You nailed it. Virginia. And yes, the checks go through Virginia Police,

Bob