Denied my C&R application for arrest record. Not what I was convicted of.

[venturasailing]

I received notice that my C&R application was denied because of a arrest showing Domestic Assault. But I was never convicted of that I was convicted of Disturbing the Peace. They want me to send them my criminal record(which is a hassle and not free in my state. California. But my logic is this. Even if I prove I do not have a domestic violence conviction...don't they have to look up my records themselves to to verify it? So then why didn't they just do that in the first place? Is it some dude being lazy? Don't they always look up your conviction records because arrest records mean nothing generally? Will they eventually approve my application if I don't bother sending in my records? Why is this happening?

 

[mehavey]

The only thing that matters is what "box" is checked in the computer.
In this case, the initial "arrest" was entered, and never updated.

Good counsel would be for you to follow through with correcting the record,
...for any number of very good reasons.

 

[tangolima]

Seek counsel. Disturbing peace is misdemeanor, whereas domestic violence is felony. Big difference.

-TL

Sent from my SM-N960U using Tapatalk

 

[tlm225]

Since the approving authority is apparently not going to do the research and has kicked it back to you, you have two choices:

-Refuse to do their bidding and leave things as they are, a denial of the C&R

-Obtain and submit the documentation and maybe get your C&R

Domestic violence is not always a felony, it depends on the laws of the specific state but a conviction for DV does prohibit firearms ownership nationwide

 

[tangolima]

Domestic violence is not always a felony, it depends on the laws of the specific state but a conviction for DV does prohibit firearms ownership nationwide

I'm afraid DV in CA is felony. Regardless, firearm restriction is a hugh bomb. If the op doesn't defuse it, it may go Kahooy at the most inconvenient time.

-TL


Sent from my SM-N960U using Tapatalk

 

[ballardw]

Seek counsel. Disturbing peace is misdemeanor, whereas domestic violence is felony. Big difference.

-TL

Sent from my SM-N960U using Tapatalk

One of the concerns, and this may be an example, related to the domestic violence is that the Lautenberg amendment to Omnibus Consolidated Appropriations Act of 1997, that went through does exclude possession for domestic violence misdemeanor or felony. Different states have different levels. The exact same activity in one state may be "public disturbance" and in another "domestic violence".

From https://www.justice.gov/archives/jm...ons-possession-firearms-individuals-convicted

This provision amends the Federal Gun Control Act of 1968 by banning the possession of firearms by individuals convicted of a misdemeanor crime of domestic violence.

 

[44 AMP]

I received notice that my C&R application was denied because of a arrest showing Domestic Assault.

You have this, in writing, on ATF letterhead, signed by an ATF agent/supervisor???

IF so, I think you need to speak to an attorney, one who handles civil rights matters.

I am not a lawyer, this is not valid legal advice, find an actual attorney for that.

That being said, I think you're being unfairly and possibly illegally denied.

No one should be denied ANY of their rights due to only an arrest record.
A disqualifying conviction is a different matter.

You have options, though some might not be quick easy, or cheap. First, take that letter from the ATF which admits they are denying you due to an ARREST record and not due to a conviction, make several copies, (pay a notary, get at least a few notarized copies) and keep the original in a safe place. You may not need them, but if you do, they will be important.

Check with an attorney. Check to see what the ATF's appeals process actually is. See if there is a time limit involved. I believe they are required to have an appeals process but it does not have to be simple, or easy. This is one of the ways that they discourage people.

TO me, this would be a matter of principle, but that's a decision you need to make for yourself. The most prudent course of action MIGHT be to wait until after the election, a different administration might have a different outlook on requiring the ATF to abide by the letter of the law.

Good luck with what ever you decide to do.

 

[Double Naught Spy]

They want me to send them my criminal record(which is a hassle

Is it some dude being lazy?

Maybe.

 

[44 AMP]

There is individual lazy and there is institutional lazy.

If it is the individual agent being lazy and wanting you to submit your records so he doesn't have to get them, that's one thing.

If it is agency policy that they require applicants to submit their criminal records that's another, and different, thing.

 

[dogtown tom]

venturasailing I received notice that my C&R application was denied because of a arrest showing Domestic Assault. But I was never convicted of that I was convicted of Disturbing the Peace. They want me to send them my criminal record(which is a hassle and not free in my state. California. But my logic is this.

You don't get denied just for having been arrested....but because your arrest record doesn't show a disposition for that arrest. Disposition meaning conviction, charges dropped, not guilty, etc.

Even if I prove I do not have a domestic violence conviction...don't they have to look up my records themselves to to verify it?

It's likely that the records reviewed for your background check show an arrest, but no disposition. That's the fault of the court where you were charged. Failure to report convictions accurately and in a timely manner has been a problem for decades.

The FBI background check process is reviewing records they have, not reviewing records held by a local/county/state court.

So then why didn't they just do that in the first place? Is it some dude being lazy? Don't they always look up your conviction records because arrest records mean nothing generally?

It's not the FBI being lazy, its the court clerk where you were arrested/charged/adjudicated.

Will they eventually approve my application if I don't bother sending in my records?

Uhhh......heck no. They denied you because the law requires they do so. They aren't going to change their mind unless your records are corrected or updated.

Why is this happening?

Because of a federal law.

 

[Mike38]

They are trying to get you to give up and throw in the towel. I was refused a C&R FFL for the same thing, problem is I have never been arrested for Domestic Abuse / Assault. There is a guy that lives two counties north of me, same first, middle and last name. Same date of birth, month, day and year. He was arrested for DA. I hired a lawyer to sort it out. Gave my finger prints to prove I was not that guy. They still kept refusing to grant FFL. I just gave up. That's what they wanted.

 

[5whiskey]

Tom pretty much spelled it out. Get a certified true copy of the case disposition and send it in. Should the ATF ask the CA court themselves? Sure... but the ATF has an attitude that you're the one wanting a C&R license so that onus should be on you. I do not agree with that, but what we think ultimately doesn't matter.

 

[venturasailing]

And though denied my C&R I still pass Background checks

The odd thing is ...though I was denied my C&R application for an arrest record and not the actual conviction which was disturbing the peace, I have purchased guns in the past 15 years so I pass those background checks with out issue. I guess the two background checks are done differently. Weird. So if I pass one I would think my conviction record is available to who ever needs to see it for a Curio & Relic license?

 

[44 AMP]

I guess the two background checks are done differently.

I don't see how the checks can be done differently, but the JUDGEMENT of what is sufficient for a denial certainly can be, and in your case, apparently is.

The law requires a conviction of a disqualifying offense to make you a prohibited person. The ATF is denying you based on an arrest record. NOT a conviction.

I think what you need to find out is if they are doing this because ATF regs allow it, or if they are doing it because they CAN and the regs don't specifically prohibit it.

If it were me, I would have a lawyer request a clarification from the ATF via a letter, using all the legal rules that will compel them to answer. (yes, its going to cost you $) It is possible that, on receiving a legal request for an explanation of their denial, they might fold, admit it was done in error and then process and issue the license.

I think that would be the best outcome you could hope for. Alternately you might see if your lawyer would file suit and ask the COURT to ask the ATF just what they are doing. That would cost more, but also carries more "teeth" to bite the ATF with, if needed.

Good Luck

 

[dogtown tom]

venturasailing The odd thing is ...though I was denied my C&R application for an arrest record and not the actual conviction which was disturbing the peace...

Again, an "arrest record" is not a prohibiting factor. Certain convictions are. In your OP you wrote:
"...I received notice that my C&R application was denied because of a arrest showing Domestic Assault. But I was never convicted of that I was convicted of Disturbing the Peace...."
It may be that your arrest for "Domestic Assault" and subsequent records of conviction is confusing. If the agency reporting that conviction made an error, then you need to fix that.

I have purchased guns in the past 15 years so I pass those background checks with out issue.

I've had customers get immediate "proceeds" from FBI NICS for years and then BOOM....."denied". Assuming that the buyer didn't recently get convicted, my assumption is that decades old records were just received by the FBI. I've been sitting on a customers 1911 since 2021 while his attorney works on that NICS appeal.

The Fix NICS Act of 2017
has caused many old records of convictions to resurface. This federal law is because the USAF failed to submit the DV conviction on Devon Kelly as required by federal law. Kelly was the culprit in the Sutherland Springs church shooting in 2017.

I guess the two background checks are done differently. Weird. So if I pass one I would think my conviction record is available to who ever needs to see it for a Curio & Relic license?

It's always been my understanding that FFL background checks are identical to those required by the Brady Law. Both are conducted by the FBI.