Background check with no actual transaction?

T

Tenguns

New member
Twenty years ago my brother and a couple other 18 year old boys were convicted of felony charges involving illegal entry into a city beach house overnight one summer, and the consumption of large quantities of potato chips and candy bars that weren't theirs to eat. Yes, felony convictions (probation)--they absolutely got the book thrown at them. But it was it is--you do the crime, you deal with the consequences. My brother overcame that and has since gone on to a very successful career with a top software development company. He was able to have the felony expunged a number of years ago.

He would like to shop at our LGS, but despite getting the felony removed in our state, he is paranoid that it could still somehow come up in the FBI background check--he doesn't trust the bureaucracy. He simply fears feeling humiliated at our LGS if he fails the check, despite knowing full well he should be fine. I know it seems trivial, but some people have a big fear of being publicly embarrassed, and perhaps aren't quite rational as a result. Is there a way he can go through the background check process without an actual firearm transaction occurring at the time? He would like to do so, so that he can walk into a store with some confidence and peace of mind that everything will go OK.
 
Just because there is a background check made it doesn't mean that a firearm transfer has taken place. There have been instances of people having gone through the instant-check process and then finding out they left their wallet at home or their card was declined.

That said, your brother should make absolutely certain that he's answered the 4473 questions honestly and completely.

IF he fails the background check, it will come back as 'denied' with no further explanation (for privacy reasons). The FFL will/should give him a contact number where he can get further information if needed or can provide proof as to why he thinks the check should have been approved.

When I worked fort an FFL, I remember 3 people who came back 'denied', including one I knew personally that had no disqualifying factors. He applied again a few days later and it came back 'proceed'. Computers do make mistakes and the system does get overwhelmed occasionally.


edit... If I'm correct, your brother can also go to the nearest Sheriff's Office (or police dept) and they can pull a background check on him which should reflect everything in the National Crime Information Center's database. The cost is nominal and they should be able to do it on a walk-in basis.
 
Are you looking to have an FFL run the NICS check without an actual transaction taking place, or are you looking for a NICS check that takes place without the FFL's involvement?

The former is going to be difficult; I can't think of any FFL that would do this as a matter of policy. That said, I've seen dealers do this for close friends; I don't know the ATF's rules on this practice, though I'm guessing they don't approve of it.

As for doing a check outside of an FFL, I have no idea if that's a possibility, though I doubt it.

Here's the thing, your brother's situation is fairly common. I've spent about 4 years selling guns and doing NICS checks, and I've seen all sorts of denials, from outright felons trying to buy guns, to people like your brother with old offenses that were supposed to be expunged but still caused an erroneous denial, to outright mix-ups that resulted in mistaken denials. There's really no reason for your brother to feel ashamed or humiliated, if the salesperson is experienced then he's seen all of those things many times over. If your brother is denied, that salesman isn't going to judge him or look down on him, at that point your brother will just be yet another person that the salesman has seen get screwed over by the NICS system.

Here's my advice: have your brother find a good, experienced salesman at his LGS and work only with that person. Then buy something and see what happens. A good salesman will be discreet about a denial and there's no reason for any other customers to know about it. Many gun shops will hold the gun for a denied person at no extra charge while they appeal, just keep in mind that if your brother just decides to give up and get his money back there may be a restocking fee.

On a side note: If the offense has been properly removed from his record then he can check "no" on the relevant question on the 4473: At that point it's like it never happened. But make sure he reads the directions on the back of the 4473, because he doesn't want to end up lying on that form. And if he's unsure about whether or not he's lying on the 4473 even after he reads the directions, make sure he consults a lawyer before completing the form.
 
Theohazard Are you looking to have an FFL run the NICS check without an actual transaction taking place, or are you looking for a NICS check that takes place without the FFL's involvement?

The former is going to be difficult; I can't think of any FFL that would do this as a matter of policy. That said, I've seen dealers do this for close friends; I don't know the ATF's rules on this practice, though I'm guessing they don't approve of it.
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The FBI will revoke a dealers access to FBI NICS if they catch him doing "practice" NICS checks. Further, what will that dealer do if the practice buyer gets a DENY? I've had the FBI ask me to fax in a copy of a denied buyers 4473.






As for doing a check outside of an FFL, I have no idea if that's a possibility, though I doubt it.
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No way to do a NICs check unless you are a dealer and pursuant to a firearm transaction.




Here's the thing, your brother's situation is fairly common. I've spent about 4 years selling guns and doing NICS checks, and I've seen all sorts of denials, from outright felons trying to buy guns, to people like your brother with old offenses that were supposed to be expunged but still caused an erroneous denial, to outright mix-ups that resulted in mistaken denials. There's really no reason for your brother to feel ashamed or humiliated, if the salesperson is experienced then he's seen all of those things many times over. If your brother is denied, that salesman isn't going to judge him or look down on him, at that point your brother will just be yet another person that the salesman has seen get screwed over by the NICS system.
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This.





Here's my advice: have your brother find a good, experienced salesman at his LGS and work only with that person. Then buy something and see what happens. A good salesman will be discreet about a denial and there's no reason for any other customers to know about it. Many gun shops will hold the gun for a denied person at no extra charge while they appeal, just keep in mind that if your brother just decides to give up and get his money back there may be a restocking fee.
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Few gun stores charge a restocking fee on a off the shelf gun that never leaves their possession. The buyer should ask about this before filling out the 4473.





On a side note: If the offense has been properly removed from his record then he can check "no" on the relevant question on the 4473: At that point it's like it never happened. But make sure he reads the directions on the back of the 4473, because he doesn't want to end up lying on that form. And if he's unsure about whether or not he's lying on the 4473 even after he reads the directions, make sure he consults a lawyer before completing the form.
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Again, this.
 
I don't think any FFL doing any sort of volume is going to worry about a denial. They see too many of them to care enough to pass judgement and know there are erroneous denials.

It's little different than when someone has a credit transaction denied. A lot of people get embarrassed. I could care less. I've had my cards frozen unexpectedly before b/c someone in Africa started buying plane tickets. It happens. Either pay cash, take a minute to call the company to straighten it out, pull out another credit card, or come back another day. I don't care a long as one doesn't waste a bunch of time arguing with me about it or something else stupid.
 
Two things:

On the 4473, when checking the box for question 11c, if you don't know if your issue was expunged and you answer 'yes' , is that an automatic denial? If it was supposed to be expunged but wasn't, and you answer 'No' , you may have another problem. Seems like a lose-lose situation.

Also, isn't there a charge, even if nominal, for the NICS check? New Jersey uses their own system and charge $15. The FFL isn't going to run the check for free.
 
You damned sure had better find out if that felony charge was indeed dismissed. If not, he opens himself up to yet another felony charge for lying on the form if he checks the no box. I'd consult a lawyer, sounds like your brother has the funds to get some expert advice.
 
California has a special "practice" background check for cases like this. Since no 4473 is filled out it's a no fault if denied. I don't know if other states or the Feds have the same.
 
2ndsojourn ....On the 4473, when checking the box for question 11c, if you don't know if your issue was expunged and you answer 'yes' , is that an automatic denial?
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It's not a denial because the dealer will not even run the NICS check.
A NO on 11a or a YES on questions 11b through 11k and the dealer does not even bother with the background check.


If it was supposed to be expunged but wasn't, and you answer 'No' , you may have another problem. Seems like a lose-lose situation.
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Not at all. If the buyer has documentation of his expungement then it's highly unlikely that he would face a "another problem".


Also, isn't there a charge, even if nominal, for the NICS check?
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FBI NICS is a toll free call, free service to the dealer.



New Jersey uses their own system and charge $15. The FFL isn't going to run the check for free.
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States where dealers do not call the FBI NICS directly, use a "state point of contact".....and many of those states charge a fee.
 
On the 4473, when checking the box for question 11c, if you don't know if your issue was expunged and you answer 'yes' , is that an automatic denial?
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I don't see how you couldn't know since charges aren't expunged unless it's a part of the original sentence, or if a lawyer is involved.
 
"It's not a denial because the dealer will not even run the NICS check.
A NO on 11a or a YES on questions 11b through 11k and the dealer does not even bother with the background check."

Thanks.
 
If you google "your state name.gov" and "background check" or "criminal history" you should be able to run a background check on yourself for $20 or so.
 
Snyper, sometimes things that are supposed to get expunged don't because of human error at the department that's in charge of doing the job that is actually striking that information from the record. My wife works for the CPD and has seen this happen quite a few times. I also have a friend who was supposed to have a felony conviction expunged and when he applied for a pretty good job and the background check didn't match up with what he said on his application they ended up not hiring him, all because someone screwed up. So yeah, it happens.
 
There is a much easier way to get this information without the risk of attempting to buy a firearm only to find out you are prohibited.

I once bought a background check from a detective agency on myself that included a complete criminal history inquiry, FBI records (under the FOIA), driving records, employment history, address history...and whatever else i can't even remember.

As I understand it, and I'm not sure I do. if they OPs felony was actually expunged, it should come back as clean enough to pass the NICS backgound check. The conviction still exists, it's only set aside (expunged) from certain databases, I know LE will still be able to see the conviction, and probably the courts as well. Is it removed from NICS? I don't know, filling out the paperwork at an FFL may be another issue.

More recently I did a check on myself from the CBI (Colorado Bureau of Investigation) just out of curiosity. It was online, and cost like $7 and came back as "no records found", not sure what that means. I can only assume no criminal convictions, surely the government has a considerable amount of information on me, and all of us.
 
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TheFriendlyMarksman said:
He should go for it and not care what other people think. He has the right to buy a gun as an expunged felony doesn't count.
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That is an ignorant, and possibly dangerous, answer. It all depends on the laws of the State in which the felony occurred and the terms of the expungement. Under the laws of some States a conviction may be removed from a record without a full restoration of rights.

The OP's brother really needs to have a lawyer look into this.
 
I believe you can have a private background check done on yourself for a fee- Don't know if it's through the FBI but there are company's that will do it.
 
Have your brother go to a local PD or Sheriffs Dept., explain his situation and ask them if they'll run him through NCIC/CIB. Takes a couple of minutes and the info that he gets back will be from the same source the background check uses. I wouldn't waste my money or time on a private check for this.
 
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