Denials - Appeal Thoughts
Another big topic to tackle is what is going to happen when a customer is denied under the impending NYS Police background check system for firearms and ammunition, touted to start on Wednesday, September 13, 2023.
I. The NYS Police undefined “administrative appeal,” as compared to the well-established FBI/ATF appeal.
Under the NICS system, there is a clear and established process set forth by federal law and regulations. The dealer informs the customer of the denial, provides a U.S. DOJ - FBI - CJIS-supplied printed materials. There is a transaction number assigned by the FBI. The dealer informs the customer he or she can contact the FBI NICS appeals section for further information and can file an administrative appeal for free, whether on their own or with an attorney. The FBI website and ATF website both cover appeal instructions. There’s a 1-page form for attorneys to file their representation. A request is made by the customer or the attorney to the FBI with certain proofs of identification of the customer, and the Bureau generates a detailed letter on why the transaction was denied.
All of this, as I said, is set forth through statutes passed by Congress and regulations adopted by the federal agencies through formal processes. All of which is designed to protect the customers’ rights of Due Process.
The added benefit of the FBI/ATF appeals process is that it moves the customer beyond the counter at the dealer. It takes any customer confusion or frustration or whatever emotional reaction the customer may have, and it allows the dealer to focus the customer on a next step that they can take from the privacy of their home, for free.
Because the FBI/ATF appeals process really is that simple. Every dealer and any lawyer in this field, including me, can attest that 9 out of 10 times, the FBI/ATF administrative appeals process works, and that 10th time simply takes longer and involves more records, but, also, generally shakes out. Our experience generates a confidence that also transmits to the customer to move them on and out of the shop.
The new laws passed in 2022 call for the NYS Police to take over everything, includes the administrative appeals process for denials.
The ATF administrative appeal, if dissatisfactory, goes to federal district court, from there on appeal to the circuit court (as of right), and from there on to the U.S. Supreme Court (as of discretion). All as part of The Brady Act, which brought us NICS in the first place. There is a clear path for justice to prevail through federal judicial authority more powerful than an administrative agency of the executive branch.
The 2022 new laws would be bad enough on its own, but the simple fact of the matter is that the NYS Police and the NYS Department of Criminal Justice Services (“DCJS”) have failed to launch the appeals process. No notification to lawyers or bar associations. No presentations on the new system. Silence.
It did not surprise me to hear several comments across the past so many weeks that the NYSP-DCJS are going to “let people go to court.” I was not dissatisfied by this gossip. In fact, because it’s one of the laws we’re challenging through Gazzola v. Hochul, I wish the NYSP-DCJS would simply abandon any thought of creating whatever their version of an administrative appeal might be.
The NYS Police are not an administrative agency, akin to the ATF. The NYS Police are a law enforcement body, under the direction of the Governor of New York. I do not want an NYS Police employee in an executive branch agency responsible for criminal enforcement against citizens to conduct a paper appeal because (a.) there is no oversight of the NYS Police in this function due to a shocking absence of oversight of them by the NYS legislature in the new laws; and, (b.) the NYS Police are the opposing party in the matter.
However, circulating scuttlebutt is that the NYS Police will require an officer to personally review every background check request. There will be no automated approvals. The law former Governor Cuomo put through that allows NYS Police up to 30-days to review a background check is the crutch for this approach.
The NYS Police is the least transparent office of the executive branch in Albany. Ten years ago, in order to get basic statistics out of them through a simple FOIA, we had to sue. Both the NY independent office on state government ethics and a NYS Supreme Court Judge said that was ridiculous and the judge awarded also my attorney’s fees for having to do so. Unlike the ATF and the FBI which publish huge quantities of valuable data through their websites and who answer the phone and who respond to emails and who are trained at a high and constant level, the NYS Police publish nothing and repeatedly over these years since the “SAFE Act” have gotten away with saying “I don’t know” to near every question asked of them on their “hotline.”
If the NYSP-DCJS do not launch an administrative appeal, in discussions with other lawyers, our thought process is that a customer would file to county court, using the pathway established for concealed carry application and license appeals. We’re thinking it’s a CPLR Art. 78 proceeding. But, we’re going to have to wait for that first denied customer with a right of judicial appeal and then see what the county court judge thinks of this untested approach. My word of confidence is that there will be a right to file to court; the debate is which court and which legal basis. We’re going to have to design and develop a pathway for appeals that, it appears, the agency under the direction of the Governor will not fulfill their legal obligation to create and properly administer as an intermediate, administrative step.
Yet again, here we are in New York, with yet another law passed purely for purposes of political theatre, which flagrantly violates the constitution, in as state where there is neither enough money, nor enough attorneys, to take every such law into federal court. This problem of NYS Police denials may too have to go to federal court, if a customer with proper standing presents the fortitude to stand and fight. It has been a rather good year of brave and hearty souls stepping forward – more than 100 plaintiffs already filed in federal court in just the past year. We’ll see.
II. What do dealers need to think about to prepare for NYS Police denials?
In the meantime, how many who are “denied” by the NYS Police will be denied access to justice through an inability to take a judicial appeal? Many.
My PSA for today is that dealers need to start constructing a safety plan for themselves and their employees to handle “denials” from the NYS Police background check system. NYS Police have provided absolutely nothing to dealers or the public concerning the new system, let alone how to appeal a “denial” from it. Dealers are going to have customers staring back at them, asking what to do next, and dealers have no guidance from the NYS Police on what to tell that customer.
How will the industry respond on the ground in New York?
The customer is going to stall out at your counter, looking to you for answers.
Let’s try out these sparse ideas, and please do reach back to me with yours.
1. Provide the customer with the name, telephone number, and website address for the NYS Bar Association “Lawyer Referral Service” and for the local county bar association. Each has processes for attorney referrals. The list could also include the NRA “Civil Rights Defense Fund.”
Beyond attorney resources, one could add groups like the Second Amendment Foundation “New York Legal Information Hotline,” NYSRPA, GOA-NY, Firearms Policy Coalition also to the information sheet for customers. I am, as of yesterday, starting calls to these groups asking if they have given any thought to this problem and what resources they are willing to assign to respond to customer denials. I have apparently introduced a new topic to the already strained situation on the ground, here in New York.
Let’s be candid: telling someone they need to find a lawyer, in general, does not go over well. They know you, the dealer. The idea of now having to find a stranger, who is going to charge them money, does not go over well concerning any civil rights violation.
The other challenge here is that the customer needs to do so ASAP. If the route becomes filing a CPLR Art. 78 proceeding, it must be done within four months, or 120 days, after the final agency determination. If there is no agency appeal process announced, then the “denial” at the counter would act as day zero to start that countdown. If there is a NYSP-DCJS administrative appeal announced, then we’re going to have to analyze what that is and whether it would bridge across to county court or to a different court. For now, because nothing is yet announced, I’m operating on a CPLR Art. 78 lead theory.
2. Another suggestion is that the customer contact an attorney they may have used in the past, such as for a house closing or for a will. While that attorney may not be competent in this field, attorneys know each other and do give individual referrals as a regular course of their business. Routing the customer’s attention back to a trusted source may help the customer to feel that they have a next step.
3. A brochure of “Know Your Rights” in the event of a denial. This step is slightly premature because until the NYSP launch the background check system, we probably won’t know whether they are going to launch an administrative appeals process. However, this needs to be anticipated, as September 13 is less than thirty days away. Let’s start asking state-level Second Amendment advocacy groups to consider putting this together ASAP.
I raise this critical issue of appeals of denials through the dealer perspective because I believe there is an elevated safety risk for dealers that is predictable under this herky-jerky NYSP-DCJS threatened roll-out of an untested system. This is not NICS. This is untested and high volume and will not be automated and will have a 30-day response window.
As I have lectured for years: dealers in firearms are the front line against the illegal sale of guns, not the police. It’s dealers who are standing across the counter. It’s dealers who deliver the word “deny” when it comes down from the ATF. And, it’s dealers who provide that Due Process Clause reassurance that there is a system of justice available to the customer to redress their grievance if the denial is erroneous or unjustified. While the ATF and the FBI view dealers as partners in a joint operation, nothing about this past year has evidenced one ounce of respect for dealers from Governor Kathleen Hochul, Acting Superintendent Nigrelli, or DCJS Commissioner Rosado.
The pent-up energy we’re all seeing in customers and Second Amendment supporters will have to go somewhere, and I’m raising this concern to try to get dealers to think ahead of how they are going to handle “denials” vis-à-vis the New York State Police background check system as of September 13, 2023. Please be welcomed to send me a note with your thoughts and ideas.
