Deny to the FBI!
Today, we launch the “Deny to the FBI!” campaign. If you or your customer or someone you know gets “deny” on a non-antique firearms purchase, please join the chorus to say “Deny to the FBI!” It’s such great news that I’m also publishing a new page to this website (DENY) to make it easy to find and share this incredible reference material on the strategy to deploy in the face of a “Deny” on a firearms purchase, post September 13.
The Context. For more than 25 years, a New Yorker’s ATF Form 4473 was dealer direct to the feds. The dealer handed you an FBI-NICS brochure and wrote your “NTN” number on it to reference your “deny” transaction. Your appeal of a “deny” was direct to the feds. A single page appeal form. A second page for representation by an attorney, if you had one. And, voluntary rolled fingerprints. The feds had five days from their receipt of an appeal to respond in writing with identification of the record match claimed to be to a federal disqualifying factor under 18 U.S.C. §922(g). Historically, appeals through this federal route easily clarified and corrected records. In some situations, exercising the UPIN option (unique identification number from the ATF/FBI for the individual) made future purchases a breeze. No government fees to the individual. Prompt government response with transparency.
The Pivot. If we thought this federal appeals process was a thing of the past as of September 13, 2023, read on fellow Patriots! I have great news.
The NYS Police Appeal Misinformation. On September 13, 2023, the New York State Police at the direction of the Governor took over the entire background check system, added checks for antique firearms, and added a check for ammunition. What Hochul & Nigrelli did was an illegal expansion of a state statute that is unconstitutional and illegal – which is pending in SCOTUS right now through the “Emergency Application” in Gazzola v. Hochul.”
On September 14, 2023, the New York State Police published a single page expressing their opinion of the state police “appeals” process. Now having dissected it, I can tell you it contains numerous mistakes of federal law.
First, the NYS Police are wrong, as a matter of federal law, if they think they have 30 days to respond to a request for record identification. Whether it’s the FBI or the NYS Police, under 28 CFR §25.10(b), as a matter of federal law, you are entitled to a response within five (5) days of a federal or state agency to your record identification request.
Second, the NYS Police are wrong, as a matter of federal law, to say that you are required to appeal a “Deny” to the state police. Under 28 CFR §25.10(d), you have a choice. You are permitted, as a matter of federal law, to appeal directly to the FBI. It doesn’t matter whether the “Deny” is an FBI record for the deny or a state record for the deny. Federal law is clear that when a customer receives a “Deny,” “the individual may choose to appeal to NICS” and the regulation provides the FBI federal address to which to mail the appeal.
In fact, under 28 CFR §25.10(d), “Upon receipt of the information, the FBI will investigate the matter by contacting the POC that denied the transaction or the data source.” As of September 13, 2023, the NYS Police is the “POC” or “Point of Contact” for the gun dealer. Right now, when you fill out that ATF Form 4473, the dealer is required to type your personal information (and more) into a system run by the NYS Police to create that state gun owners’ registry. After that private information goes into the hands of the state police, they interface with the FBI-NICS for a background check and they “may” search state records. The word “Deny” that hits the dealer’s computer screen is communicated from the NYS Police, but it could originate with the FBI. At least one dealer called the NYSP and was told it was a federal “deny” but that the state police officers weren’t permitted to give the dealer the federal NTN number associated with the denial. I knew that couldn’t be right under the DPC (Due Process Clause). And that’s what got me into the 28 CFR Part 23 regulations. I pulled out my paper copy of the ATF “White Book” and simply started reading from the first sentence through to the end of the regs in that part with an eye on appeals in a POC state.
Congress (by statute) and the ATF (by regulation) were brilliant in their design of 28 CFR §25.10. It’s the bee’s knees of federal Due Process clause protection for you, the individual. This regulation gives the feds the power to protect your fundamental, first-class Second Amendment rights against state interlopers, like the New York State Police and Governor Hochul. And, right now, with the unbelievable power grab by Hochul, we need all the federal help we can get, so thank you Congress and the ATF.
How does this benefit you, the individual? Because when the FBI processes the appeal of your “Deny,” the FBI can override the state and can even direct the state to correct its erroneous record. In fact, if the FBI corrects an erroneous federal record or state record within the 30 days of the background check, you can proceed on that same check. If it takes longer than 30 days to make the correction, a new background check is needed, but you’ve already corrected the record and should get your “Proceed.”
Why is the choice to “Deny to the FBI” so important in New York? Because we know there are hundreds of thousands of erroneous records filed by New York to the FBI-NICS database under the heading of “involuntarily committed to a mental institution.” Years of research, public activism to “Stop the Secrecy,” and lawsuits like In re Donna McKay proved in courtroom after courtroom that New York applied to become a “NIAA funding state” and is paid per entry to make these false reports.
To be a disqualified person under the “involuntary commitment to a mental institution” federal law, you must have been “involuntarily committed” through a judicial order after a hearing. The New York Civil Liberties Union (NYCLU) was a champion in the 1970s and 1980s in establishing the “least restrictive means” standard for care directives at the conclusion of a required hearing to involuntarily commit an individual as a patient into a treatment facility against their wishes. The NYCLU used that pesky thing called the “Due Process Clause” to guarantee that a person couldn’t be turned into the equivalent of a criminal in lock-down because a person suffered from a mental condition requiring even a high level of medical care and treatment. (A good federal piece for further reading HERE.)
We’ve known, since not long after the “SAFE Act” under former NYS Governor Cuomo, that the state was filing false records into the FBI-NICS and collecting money for doing it. Hochul has continued the tradition.
Now, with this rather unexpected illegal maneuvering by Hochul & Nigrelli to take over all the firearms background checks, guess what? We can turn the unconstitutional and illegal new NYSP background check system to our advantage if we “Deny to the FBI!”
There’s more than one million New Yorkers in the FBI-NICS database - many of whom have been wrongfully reported by the state government to the FBI just because they’ve sought medial and/or mental health treatment and/or evaluations. Every month, that number goes up, and we know it goes up because the ATF publishes the reported records numbers on their website. That’s not just wrong, it’s illegal. It violates 28 CFR 25.11, and the State of New York can and should be monetarily fined and should be shut out of NICS access for a POC system.
It won’t take but a handful of “denied” before we learn that this state is going to start denying people from firearms purchases using NY Mental Health Law §9.46 or §9.41, neither of which is a disqualifier at federal law. It won’t stand up in court. Even in New York, patients have Due Process Clause rights that can and will ultimately protect them against false reports made by the state for no reason other than pecuniary gain.
“Deny to the FBI!” allows us to flush that quail right out of the tall grass, y’all!
Bonus? Using “Deny to the FBI!” gives the U.S. Supreme Court some teeth that they otherwise don’t have. Courts don’t have enforcement arms. Presidents and Governors do. Yeah, well, guess what Kathy: “Deny to the FBI!” means that New Yorkers can bring in their Big Brother to see what you-all are up to, flush out those records, over-ride your constitutional robbery, and defend our constitutional rights under the Due Process Clause and the Second Amendment. All in one go. And with no fees or delays. Your choice to “Deny to the FBI!” will help the U.S. Supreme Court protect our rights.
Third, what to understand about the heinous New York State Police “appeal” chute is that they have the audacity to ask you additional questions in order to electronically file the appeal and they have the nerve to ask you the reason for the appeal. Not so fast hombre! We’re not that far south of the border into a proverbial banana republic without a constitution! The NYS Police are not permitted to do either: no additional questions to you and no question of why you want to appeal. It’s your right to appeal. It’s your Second Amendment and your Due Process Clause rights on the line.
“Deny to the FBI!”
Tell all your friends and even your sworn enemies, ‘cause if we’re going to be treated like terrorists we had better behave like Constitutionalists.
Can I get an Amen! Hallelujia! It’s my birthday today, but this is my gift to you. The PSA that you have a choice and the Constitution is still standing. Now, please help get the word out:
“Deny to the FBI!”
This blog does not constitute legal advice. It is written for public information purposes. An individual should consult with an attorney to discuss his or her individual circumstances in a confidential setting to decide on how to proceed with an appeal or other, related legal matter.
