The Hochul Loophole

Last Tuesday, NYS Governor Kathleen Hochul opened a press conference claiming, again, that she’s going to keep New Yorkers safe while in the same breath insulting the Hon. Justice Clarence Thomas.

 Let’s straighten out the Hochul “public safety” record. 

Hochul adamantly refuses to provide records of NYS-convicted felons and misdemeanants to the FBI to include in the federal NICS background check system.  There are nine disqualifying factors at federal law under 18 U.S.C. §922(g), and I highlight these two for purposes of this blog.  The ATF annually publishes the number of records in the NICS system by state.  It is a fact that New York is a “0” in reports of felons and misdemeanants, continuously, since The Brady Act of 1993 created the live NICS background check system in 1998.

We set forth in Gazzola v. Hochul that the governor’s refusal to transmit such criminal records from state court convictions undermines the federal background check system.  The FBI-NICS database cannot “Deny” a background check, unless there is a match to an existing record in the FBI-NICS that is a federal disqualifying factor.  The absence of state records from Hochul means that a criminal can be convicted in New York, serve his time, be released, go to another state or U.S. territory and purchase a firearm, where the background check will (in the absence of any other disqualification) go to “Proceed” due to the lack of the NYS record.

You’ve heard Hochul talk about the “iron pipeline?”  Her term for firearms purchased out-of-state by a New Yorker and brought into New York to be used in a crime by a criminal?  What Hochul isn’t telling you is that she’s to blame for those state criminal records not being part of the federal FBI-NICS database.  She won’t tell the FBI the names of NYS-convicted criminals.  This means that the FBI, working with federally-licensed dealers in firearms across the country, can’t achieve the federal system’s potential to help to keep America safe from gun crimes.

Fascinating to say that Hochul is about to get bitten by her own political gamesmanship.

The NYS Police are starting to deny individuals of their firearms and/or ammunition – people who already purchased, own, and have used firearms for years.

Here’s what Hochul didn’t think through.

Those same men and women now being denied by the NYSP are filing appeals to the NYSP asking why they were denied and the NYSP is having to fess up that it’s using state criminal records – no matter how old.  Those men and women are then going back to the dealer, showing the dealer the e-mail appeal denials from the NYSP.  That customer then asks the FFL, “How can they do that?”  Of course, the reason the customer is confused is because they should have been earlier denied.  For decades.  If Hochul and a string of governors before her had contemporaneously reported state court convictions to the FBI-NICS since November 1998, these men and women would have been denied the purchase of firearms nationwide.

This is where groups that title themselves as “law centers” are complicit: they attack federally-licensed dealers in firearms as “only” denying a small percentage of firearms purchases, they talk about “gun show loopholes” and wanting a “universal background check,” and they push for conversions of states into state agency point-of-contact systems.  Groups like the “Gifford’s Law Center” are steering the concept of background check system 180-degrees in the wrong direction.  State POC systems that use third party vendors for credit card processing fees and user system programming allow companies like NICUSA (owned by Tyler Industries) to reap profits and grab gun owner information at the same time.  They add nothing substantive to the background check system on the federal or state level, and yet they are making profits for shareholders and executives and board members who are using those profits to attack your individual rights under the Second Amendment.

NYS Governor Kathleen Hochul won’t report state-convicted criminals to the FBI and that means she’s putting New Yorkers and Americans at risk, unnecessarily.  It’s 2023.  The technology is there.  The federal security parameters in black-and-white statutes and regulations with Congressional oversight are there.  The 2022 Bipartisan bill, signed by President Biden, requires federal agencies to certify their record contributions to FBI-NICS to strive for the best possible outcome.  The FBI/ATF background check system is highly advanced after all these years.  And Hochul’s “launch” of the NYSP background check system is a failure on every level from the mechanics to the telephone operators who keep saying “I don’t know.”

And, listen.  When I say a “felon” and a “misdemeanant,” these terms are defined at federal law for purposes of the NICS background check and disqualification.  A “misdemeanant” could be someone who took a joy ride on a snowmobile at age 20 in the 1970s or a guy who grabbed a football out of the cage to toss around with friends on the school field without permission in the 1980s.  I’m not judging or excusing, but the state and the federal government have operating systems for that person to submit a “relief from disabilities” application.  Had these individuals been earlier denied, they could have taken care to apply for relief from disability of civil right while those records were still available.

The Second Amendment is not so rigid that it has zero tolerance. 

The Second Amendment’s best friend is the Due Process Clause because it gives an individual the right to ask for their criminal record to be reviewed as one data point in the context of their life.  A person can file for relief from the disability of the prior conviction and, if granted, can properly restore their Second Amendment rights.

 In 1988, we as a nation said that the attempted assassination of U.S. President Reagan should result in legislation that – after five years of intense debate in Congress – became The Brady Act in 1993 and the NICS system in 1998. New York has been a full Brady state ever since, where federally-licensed dealers in firearms have been directly connected to FBI-NICS and worked with the ATF.

The one flaw in that statute was that Congress didn’t account for a governor like Hochul. And that, my friends, is the NICS loophole that our NYS-based, federally-licensed dealers in firearms are fighting hard to close.