Ammo Check 1.0
Today, I have new print materials for dealers and individuals alike, as we explore the new “ammunition background check” system of the NYS Police. It shouldn’t be called an “background check system.” It is not. The primary purpose of the system that went live on 09.13.2023 is an individual dossier building system that brings together otherwise older, paper, or disconnected records about an individual into the hands of the state police. The ammo check is Governor Hochul’s compliment to the new gun owners registry that she calls a “firearms background check.” Two powerful weapons against citizens, collecting, syphoning, and then compiling records. To what end? That remains to be seen. But let’s look at the ammo check, today.
Many dealers in firearms reported to me since 09.13 that entries of ammo checks would immediately show “delay” or “pending review.” FFLs have reported checks progressing to “proceed” anywhere from 30 minutes to still in “delay” status since September 14.
The NYS Police are relying on a state statute that delays may be held for up to thirty days (30-days). The NYS Police website says if a transaction doesn’t progress to “deny” or “proceed” within thirty days, the dealer is to run a new ammunition check, wait three days, and if still no response, they may proceed to complete the sale.
No sidebar this morning on the unconstitutionality of these two points.
This morning, I share documentation that the NYS Police is running wide open record searches with neither date, nor subject matter limitation, including records at state-level offices and agencies, as well as county and municipal level governments. There is no date, nor subject limitation to these searches. It includes even arrests where no charges were ever filed, no conviction put on the record. It includes searches decades old. And it includes “all” records an office or agency has on an individual.
We knew as soon as we reviewed the 2022 statute “authorizing” the ammo check that it was unconstitutional. First and foremost, because it clearly violates NYSRPA v. Bruen. Now we can see the “front-end” (dealer-facing screens). Add information about the manual searches being initiated by people like “Operator #326” at the NYS Police to request “all” records of individual. This adds a Due Process Clause violation and a Privacy violation. It also goes to relevance of allegations made, more than forty years ago, where government records may no longer exist.
Inflaming the situation is a so-called “appeal process,” advertised as a false bill of goods by the NYS Police. The customer’s user screen for an on-line appeal includes more data capture, which is unconstitutional under the Fifth Amendment. The NYS Police ask additional questions, including any prior convictions. These extra questions serve no purpose but to build a dossier and give the NYSP leads to pursue people.
28 CFR Part 123, from The Brady Act, includes that state systems must match federal standards in a “Point of Contact” state where an intermediary, such as the NYS Police, operates in between the federally-licensed dealer and the FBI-NICS/ATF “Brady State” system. It clearly spells out that once a “deny” is made, for purpose of the appeal, one hundred percent of the burden of proof is upon the government to demonstrate a record and that the record matches a disqualifying factor at federal law. Our challenge is none of this applies to the Hochul ammo background check system, because there is no ammunition background check at federal law. Congress considered it, extensively, and rejected it.
The NYS Police flyer about their ammo background check ironically adopts federal firearms disqualifying factors as the state ammunition disqualifying factors. The NYS Police flyer specifically says “Beginning September 13, 2023, Ammunition Cannot Legally be Received by a Person Who” and it goes on to paraphrase the ten federal firearms disqualification factors found at 18 U.S.C. §922(g).
Today, I bring you also a redacted copy of an actual appeal result. The kicker is that it states “Reason for Denial: State Prohibitor.” End of sentence. No state record is identified and no state office or agency housing the record is identified. That’s not going to satisfy federal Due Process standards.
Then it states “After receiving the reason for the denial from the New York State Police, you may appeal the denial determination to the New York State Office of the Attorney General.” The NYS Police, per a 2022 new law, was required to publish regulations concerning the appeal process. Of course, they failed to do so. This denial came from a generic “NYSNICS@troopers.ny.gov” e-mail address does not state how to appeal to the NYS-AG, nor does it give the address, nor does it state any statute of limitations. It also doesn’t offer the individual a choice to proceed to state court or to inform the individual they may have rights to sue in federal court. It doesn’t inform the individual that he may be represented by counsel during the proceeding. It’s a wholly inadequate denial notice.
The NYS Police User Guide for dealers using their new system contains no information on denial appeals. The NYS Police website page, as it reads from launch through this morning does not provide this information. The notion of an administrative appeal of an appeal amounts, in the case of the NYS Police, to nothing more than a delay for the individual to get into a courtroom.
The new 2022 statute is of little assistance. Read it, and you might be duped into thinking that your appeal rights end at the door of NYS-AG James. It makes no mention of the right of the individual to appeal from an administrative denial into (at the least) county court on a CPLR Art. 78, which can also include an award of attorney’s fees.
In sum, Governor Hochul now has daily oversight responsibilities for the operations of the NYS Police since the resignation of the former Acting Superintendent Nigrelli on 09.22.2023. Hochul is running the data capture system through which individual dossiers are assembled through the full force of state, county, and local records to deprive individuals of their fundamental Second Amendment rights. The “appeals” screen then conducts more data capture, directly from the individual. And the “appeal” doesn’t provide the individual with the record identification, even where the NYS Police have captured “all” records on a person through a separate governmental body, such as a county or town. Additional “and,” the state government doesn’t notify the individual they may have other and/or different rights of appeal of the “denial.”
The extent of the expanding destruction of federal constitutional rights by Hochul and her Division of NYS Police, as well as by the Office of the NYS Attorney General is only just beginning. I yesterday blogged about the “Hochul Loophole.”
I’m hearing from dealers that people who get a “deny” on a firearm check or an ammo check are completely frustrated and walk out of the store. Dealers are doing a yeoman’s job of trying to help people take that next step to protect their rights through things like taking appeals and contacting attorneys for discussions of their individual circumstances. It’s part of why I’m doing all this volunteer activism work through my website, using information and documentation pouring in from all across the state. Education is our best weapon against these monstrous negative forces, converging to shred multiple Amendments from the Bill of Rights. I’m e-blasting, I’m blogging, and I’m offering ideas such as a PDF-fillable “Receipt” for dealers to give to customers who receive a firearm “deny.” And you’re helping by sharing this, plus engaging your own networks with your own information and experience.
Keep up the good work, New York! After all, “We, The People Are the Governors of Our State.”
