Something that really bugs me with the talk of strengthening background checks

[TomNJVA]

All those questions on the Form 4473 are the prohibitions from possessing a firearm. While it may seem silly or obvious, the reason for those questions is it allows a criminal charge for lying. If you are a felon, a user of illegal drugs, etc and you lie on the 4473, ATF can charge you with a violation of Federal law.

Are they prohibitions from possessing or buying? Let's say a person was not using an illegal drug at the time he filled out the Form 4473, and then started using a drug a year later. Did he lie on the Form 4473? I believe there has to be a conviction or positive drug test in the year prior to purchase to assume he was a user at the time of purchase, but no such requirements after purchase.

Same scenario, if the person started using drugs a year after the purchase, is he now a prohibited person? If so, does that mean he cannot posses and must either dispose of his gun or stop using the drug, or just cannot purchase another gun since to do so would require lying on the Form 4473?

 

[riffraff]

I highly doubt anyone has ever been prosecuted for lying on the form for drug use. Denied rarely, but even those with dangerous & serious criminal records typically escape actual prosecution...

My belief as to why so few are prosecuted after a denial (and why they are never prosecuted federally like they could/should and it's only states that ever even follow up) is because the denials are so often wrong it would constantly send authorities on wild goose chases and would only serve to prove what a bad job the FBI does with this.

Anyway back to the point - what they use to determine drug use are criminal convictions (ie convictions that are < 2 year max sentence so are not alone prohibiting) and they count back a certain number of years, more years if there is more of a pattern, is my understanding. Specifically 5 years clear of any criminal evidence of drug use and they are not supposed to consider it but I think dealing with NICS can be a crap shoot when it comes to this sort of thing.. Another point is you might not be lying on the form at all but they could deny you for drug use based on what I just stated.

The federal government has a hair across it's ass on any drug use, seems like the ideas in reefer madness continue to live on within some branches. I do not smoke weed but could really care less if a truck driver, captain of a boat, airline pilot, etc.. smoked some weed last friday night when they were not working. To me it's as impertinent as to whether they had 3 glasses of wine but to the federal government it's a big no no and in many professions to have a license they force you into their drug test pool. Actually even for "able seamen" they force drug tests - who really cares if the mate scrubbing decks on a charter boat smokes weed anyway, well the feds do. Dumb.

 

[BBarn]

From what I've read, the NICS itself checks the buyer for violations of questions 11b-11i, 12b, 12c and a few others. So the questions on the 4473 are redundant at best, and entrapment at the worst. Some of the questions are written in legalese and even require clarification... nearly 3 pages of them (also containing legalese) on pages 4-6.

Regarding the issue of illegal substances... To avoid opening a can of worms I won't question any issues related to the legal ones.

 

[NMC_EXP]

ref: "domestic violence" making a person an outlaw for life.

Just remember in some localities thumping the table with a fist during a verbal argument can get a person convicted of DV.

It ain't just about black eyes.

 

[dogtown tom]

TomNJVA Are they prohibitions from possessing or buying?

Both. See https://www.atf.gov/firearms/identify-prohibited-persons

Let's say a person was not using an illegal drug at the time he filled out the Form 4473, and then started using a drug a year later. Did he lie on the Form 4473?

Seriously?

I believe there has to be a conviction or positive drug test in the year prior to purchase to assume he was a user at the time of purchase, but no such requirements after purchase.

Not at all correct. Simply being a USER of an illegal drug is a prohibiting factor and says so right on the Form 4473.

Same scenario, if the person started using drugs a year after the purchase, is he now a prohibited person?

Yes.

If so, does that mean he cannot posses and must either dispose of his gun or stop using the drug, or just cannot purchase another gun since to do so would require lying on the Form 4473?

He cannot be in possession of a firearm period.

riffraff I highly doubt anyone has ever been prosecuted for lying on the form for drug use.

It doesn't change the fact that it is a Federal crime.

Denied rarely, but even those with dangerous & serious criminal records typically escape actual prosecution...

Can you cite a source for this? I think it pretty rare for "dangerous & serious" criminals with a record to even attempt to acquire a firearm through a licensed dealer....because they sure as heck would be prosecuted.

My belief as to why so few are prosecuted after a denial (and why they are never prosecuted federally like they could/should and it's only states that ever even follow up) is because the denials are so often wrong it would constantly send authorities on wild goose chases and would only serve to prove what a bad job the FBI does with this.

You make the faulty assumption that a denial means the person is prohibited. That's not necessarily true. I've had around a dozen denied transactions in the last nine and a half years.....all but one were overturned on appeal.

ATF/FBI know which persons they want to prosecute and they do.

Anyway back to the point - what they use to determine drug use are criminal convictions (ie convictions that are < 2 year max sentence so are not alone prohibiting) and they count back a certain number of years, more years if there is more of a pattern, is my understanding. Specifically 5 years clear of any criminal evidence of drug use and they are not supposed to consider it but I think dealing with NICS can be a crap shoot when it comes to this sort of thing.. Another point is you might not be lying on the form at all but they could deny you for drug use based on what I just stated.

Wrong.
Felonies or any other crime where the judge could imprison you for more than one year.

The federal government has a hair across it's ass on any drug use, seems like the ideas in reefer madness continue to live on within some branches. I do not smoke weed but could really care less if a truck driver, captain of a boat, airline pilot, etc.. smoked some weed last friday night when they were not working. To me it's as impertinent as to whether they had 3 glasses of wine but to the federal government it's a big no no and in many professions to have a license they force you into their drug test pool. Actually even for "able seamen" they force drug tests - who really cares if the mate scrubbing decks on a charter boat smokes weed anyway, well the feds do. Dumb.

Don't like the law? Then change it.

BBarn From what I've read, the NICS itself checks the buyer for violations of questions 11b-11i, 12b, 12c and a few others.

NICS checks the buyers name, etc vs a list of prohibited PERSONS, not crimes.

So the questions on the 4473 are redundant at best, and entrapment at the worst.

No, as I wrote above, it requires a buyer to answer truthfully, correct and complete. If there was no penalty for lying on a Federal form, gun stores would be inundated with buyers wanting to test the system to see if they could get a gun.

It's not anywhere close to entrapment. "Entrapment" occurs when a law enforcement officer induces a person to commit a criminal offense that the person would have otherwise been unlikely or unwilling to commit. Gun dealers aren't law enforcement officers.

Some of the questions are written in legalize and even require clarification... nearly 3 pages of them (also containing legalize) on pages 4-6.

Horsehockey.
Anyone who can't understand the questions on a Form 4473 needs to repeat middle school.
The problem with understanding the questions is the fact that 99% of buyers don't bother reading the questions, much less the instructions to those questions. Not a day goes by that I don't have to hand the form back to a buyer and ask them to give me an answer on 10a "Ethnicity.....DESPITE the explicit instructions that say both 10a and 10b must be answered.

 

[tony pasley]

Just wait if they get the " No Fly List" as prohibited persons it will get real fun. Even Ted Kennedy was on it for a while.

 

[Bartholomew Roberts]

Can you cite a source for this? I think it pretty rare for "dangerous & serious" criminals with a record to even attempt to acquire a firearm through a licensed dealer....because they sure as heck would be prosecuted.

I can't cite a source; but I have some professional insight into this. While riffraff was wrong about a great many things, he was not wrong here. Prosecutions for lying on a 4473 are less than 100 a year at the federal level. At the local level, I see guys caught red-handed with NFA weapons who don't catch charges.

Recently, just had a guy who had a class A misdemeanor for violating a protective order (in which possession of firearms was forbidden), had two class C domestic violence misdemeanors, and had been documented abusing prescription drugs in over 100 police encounters. That's about three different ways this idiot should be a prohibited person but police not only did not prosecute but regularly ignored all of his disclosures about the firearms he owned.

Somehow, he is still legal and NICS approved despite over 100 contacts in a few years, several of which are disqualifying as a single incident.

 

[riffraff]

Haha well I don't mind being wrong but at least one of the things I was supposedly wrong about was quoted and re-explained making the same point I was trying to make ..

I said I don't think they try to prosecute the majority of the denials because so many of them are false, it would be a wild goose chase for the local authorities who (from what I read in papers occasionally) get notified and pick up the fraud cases.. I was quoted saying something along the lines of I was making an assumption those people were actually prohibited - that's my point most of them are not prohibited...

Sooooo there are a few possibilities for why so few follow ups. #1 authorities know when a denial was correct or incorrect from the start, which would be very lame if that information was so readily available but a denial occurred and stood anyway #2 authorities do not know but do not bother to investigate most except the most severe and clear instances due to simple lack of resources #3 authorities do not know from the start but do not look into most cases because so often what's uncovered is the denial was incorrect and no crime occurred..

What I wonder is what happens in some of these states where reporting denials to the police is mandatory for the FFL - isn't PA like that? Thought I read anyone denied there automatically gets arrested practically before they leave the store. You would think such a quick follow up would not leave any time for confirmation and could produce a lot of bogus arrests.

 

[BBarn]

NICS checks the buyers name, etc vs a list of prohibited PERSONS, not crimes.

The point I was making was, in determining whether a person is prohibited or not, the NICS checks the applicant's background against the prohibitions listed in the questions. How an individuals history compares to issues questioned on the form determines whether they are prohibited or not. And the NICS determination, based on an individual's history, is done in addition to the answers the buyer provides on the form. That is what makes the form redundant in most cases.

I suggest that requiring the purchaser to answer the questions on the form serves two purposes. If the purchaser is a recently prohibited person and the records accessed by the NICS aren't up-to-date, truthful answers on the form could prevent a prohibited person from buying a gun (assuming the FFL and/or the NICS reviews the answers on the form). Secondly, in a similar situation, untruthful answers on the form could serve to protect the FFL from being considered at fault from delivering a firearm to a prohibited person (assuming the FFL reviewed the answers on the form).

No, as I wrote above, it requires a buyer to answer truthfully, correct and complete. If there was no penalty for lying on a Federal form, gun stores would be inundated with buyers wanting to test the system to see if they could get a gun.

It's not anywhere close to entrapment. "Entrapment" occurs when a law enforcement officer induces a person to commit a criminal offense that the person would have otherwise been unlikely or unwilling to commit. Gun dealers aren't law enforcement officers.

First off, entrapment applies to any official, not just LE officers. And in this case, I believe in some instances it could apply to the form, since it represents statements by officials. Since the form itself states that certain answers on the form will prevent an individual from receiving a firearm, the person may be “induced” by statements on the form to lie if they are in desperate need of a gun to protect themselves.

Of course gun dealers are not law enforcement officers. Just because a dealer is required to have the purchaser fill out a 4473 doesn't make him/her an LEO.

Horsehockey.
Anyone who can't understand the questions on a Form 4473 needs to repeat middle school.
The problem with understanding the questions is the fact that 99% of buyers don't bother reading the questions, much less the instructions to those questions. Not a day goes by that I don't have to hand the form back to a buyer and ask them to give me an answer on 10a "Ethnicity.....DESPITE the explicit instructions that say both 10a and 10b must be answered.

I suspect there are many people who are unaware that the crimes they were convicted of were ones where the judge could have sentenced them to serve more than a year in jail, especially if they received a lesser sentence or received probation. I also suspect there are many individuals addicted to prescription drugs who don't believe they are, and would say they are not. There have been several questions on the forum regarding mental health requirements (question 11f). These points illustrate how some individuals might not fill out the form truthfully.

And I'm sure your middle school education was very good.

 

[Bartholomew Roberts]

Riffraff, part of the disparity in reporting could be the state/federal split. The reports I’ve seen only track ATF investigations.

If for example Pennsylvania arrests people and charges them under state law, the federal report on ATF investigations would show that as a denial that ATF never even investigated. If no federal prosecutor gets involved then that investigation probably doesn’t get reported up in any way that is tracked.

 

[zukiphile]

Not a day goes by that I don't have to hand the form back to a buyer and ask them to give me an answer on 10a "Ethnicity.....DESPITE the explicit instructions that say both 10a and 10b must be answered.

Is "minimal" an acceptable answer?

I suspect there are many people who are unaware that the crimes they were convicted of were ones where the judge could have sentenced them to serve more than a year in jail, especially if they received a lesser sentence or received probation. I also suspect there are many individuals addicted to prescription drugs who don't believe they are, and would say they are not. There have been several questions on the forum regarding mental health requirements (question 11f). These points illustrate how some individuals might not fill out the form truthfully.

I think it is normal and to some degree healthy for people to regard government forms with some contempt. Many would prefer to write "shut up and give me my gun" across the form but for the result.

I've done very little criminal work, but my observation of most the people I have seen who have committed serious crimes is that they are acutely aware of the full measure of penalties they face at any given moment. They may not be smart, but they devote a large portion of their computational power to their sentencing.

 

[BBarn]

I've done very little criminal work, but my observation of most the people I have seen who have committed serious crimes is that they are acutely aware of the full measure of penalties they face at any given moment. They may not be smart, but they devote a large portion of their computational power to their sentencing.

That's encouraging. Perhaps the number that are unaware or have forgotten is fairly small.

 

[dogtown tom]

Bartholomew Roberts I can't cite a source; but I have some professional insight into this. While riffraff was wrong about a great many things, he was not wrong here. Prosecutions for lying on a 4473 are less than 100 a year at the federal level. At the local level, I see guys caught red-handed with NFA weapons who don't catch charges.

Lets be clear:
ATF makes arrests and pursues charges MUCH more often than "100 a year"......if the USAO will not accept that case for prosecution it disappears.

Prosecution for a violation of Federal firearms law is most often an "add on" to other state law violations. As in the case of Bruce Abramski, when the state is having difficulty proving its case, they hand it off to the Feds to get a dirtbag off the streets.

ATF statistics on "prosecutions for lying on a 4473" don't mention anything about state charges for felon in possession or any other of a host of state violations that will put the accused away for far longer than lying on the 4473.


I want to see where he found this: "but even those with dangerous & serious criminal records typically escape actual prosecution". I have no doubt that while some do, it's been my experience that they don't.

Bartholomew Roberts .....police not only did not prosecute but regularly ignored all of his disclosures about the firearms he owned.

Somehow, he is still legal and NICS approved despite over 100 contacts in a few years, several of which are disqualifying as a single incident.

Sounds like you have a law enforcement problem and not a NICS problem.

riffraff ....Sooooo there are a few possibilities for why so few follow ups. #1 authorities know when a denial was correct or incorrect from the start, which would be very lame if that information was so readily available but a denial occurred and stood anyway #2 authorities do not know but do not bother to investigate most except the most severe and clear instances due to simple lack of resources #3 authorities do not know from the start but do not look into most cases because so often what's uncovered is the denial was incorrect and no crime occurred..

And AGAIN........a NICS denial IS NOT A CRIME!!!!

What I wonder is what happens in some of these states where reporting denials to the police is mandatory for the FFL - isn't PA like that?

I don't think you really know how NICS works at all. If the dealer is in a state where the FBI NICS performs the check.....then FBI will notify local LE. If the dealer is in a state where a state agency is the NICS point of contact, that state agency is likely to be the state police.

Thought I read anyone denied there automatically gets arrested practically before they leave the store. You would think such a quick follow up would not leave any time for confirmation and could produce a lot of bogus arrests.

In states where the dealer calls a state agency for the NICS check this is not unusual. But again......a denial only means that the background check showed a name match with a prohibited person. Not all denials in those situations result in an arrest.

 

[dogtown tom]

BBarn

Originally Posted by dogtown tom View Post
No, as I wrote above, it requires a buyer to answer truthfully, correct and complete. If there was no penalty for lying on a Federal form, gun stores would be inundated with buyers wanting to test the system to see if they could get a gun.

It's not anywhere close to entrapment. "Entrapment" occurs when a law enforcement officer induces a person to commit a criminal offense that the person would have otherwise been unlikely or unwilling to commit. Gun dealers aren't law enforcement officers.

First off, entrapment applies to any official, not just LE officers.

And guess what?........no "official" forces any buyer/transferee to attempt to purchase a firearm and fill out a Form 4473.

And in this case, I believe in some instances it could apply to the form, since it represents statements by officials. Since the form itself states that certain answers on the form will prevent an individual from receiving a firearm, the person may be “induced” by statements on the form to lie if they are in desperate need of a gun to protect themselves.

You need to do some reading on entrapment, 'cause you ain't no where close.

Of course gun dealers are not law enforcement officers. Just because a dealer is required to have the purchaser fill out a 4473 doesn't make him/her an LEO.

Of course.

Originally Posted by dogtown tom View Post
Horsehockey.
Anyone who can't understand the questions on a Form 4473 needs to repeat middle school.
The problem with understanding the questions is the fact that 99% of buyers don't bother reading the questions, much less the instructions to those questions. Not a day goes by that I don't have to hand the form back to a buyer and ask them to give me an answer on 10a "Ethnicity.....DESPITE the explicit instructions that say both 10a and 10b must be answered.

I suspect there are many people who are unaware that the crimes they were convicted of were ones where the judge could have sentenced them to serve more than a year in jail, especially if they received a lesser sentence or received probation.

No argument there. But note that the question isn't "Were you sentenced to more than a year".
Again, just like several other questions on the 4473, people don't actually read the question as its written, but how they want it to be written.

I also suspect there are many individuals addicted to prescription drugs who don't believe they are, and would say they are not.

And this is a perfect example.

There have been several questions on the forum regarding mental health requirements (question 11f). These points illustrate how some individuals might not fill out the form truthfully.

And nearly every one of those questions could have been answered by simply reading the actual question on the Form 4473 and its instructions.

And I'm sure your middle school education was very good.

It was, and I'm not the one asking questions.

 

[dogtown tom]

zukiphile

Quote:
Originally Posted by dogtown tom
Not a day goes by that I don't have to hand the form back to a buyer and ask them to give me an answer on 10a "Ethnicity.....DESPITE the explicit instructions that say both 10a and 10b must be answered.

Is "minimal" an acceptable answer?

It is not.
And if you take the time to read the 4473 you'll note that 10a & 10b have limited choices and no option to "fill in the blank".

 

[Bartholomew Roberts]

ATF makes arrests and pursues charges MUCH more often than "100 a year"......if the USAO will not accept that case for prosecution it disappears

In the 2010 report I linked to earlier, out of 76,000+ denials referred to ATF by FBI, ATF referred 4,732 to field offices for investigation, resulting in 62 prosecutions and 26 convictions at the time of the report. That still leaves a big question mark for about 72,000 denials.

As mentioned earlier, it seems safe to assume that the false denial rate is significant based on that report but even if we assume a 25% error rate, that’s a lot of legitimate denials not being investigated and I’m sure not seeing the local police pursuing that crime.

Sounds like you have a law enforcement problem and not a NICS problem.

GIGO.

 

[BBarn]

... and I'm not the one asking questions.

Nor I.