Expert: Robert P. Firriolo - 2/3/2009

Question
Mr. Firriolo, I went to a dealer today and was "delayed" by the FBI NCIS via phone call by the dealer. He advised me that I have approx. 3days for them to contact him and give him an answer. However, I live in Massachusetts and I currently have a License to Carry Firearms, with no restrictions. I would assume the commonwealth had already completed a background check prior to giving me the LTC. Now, I was arrested 13 yrs ago for disorderly person and A&B on a police officer. The outcome was a "dismissal" and I also had the record "sealed" a short time afterword. Obviously, NCIS has access to looking at everything. However, I am also a Correction Officer for the State DOC in the Gang Unit and also have been appointed a Special State Police Officer to make arrests when needed as well as currently carry a weapon on duty when needed. From your expertise in the Firearm laws, is the above related criminal record a reason to be disqualified from the Federal level and not the state? Or perhaps is the "delay" just a reason for NCIS to look into the disposition of what happened.
Thank you foryour time-  Mike M.

Answer
Mike, an arrest alone (as opposed to a conviction) does not make you a prohibited person under federal law. There is no way of knowing why you were delayed. It could be as simple as you having a common name or one similar to that of a prohibited person. Here is FBI's explanation of how a delay works:

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If potentially prohibitive criteria exists and more information is required in order to make the determination, the NICS Examiner will advise the FFL to DELAY the firearm transaction and the FFL will receive the following instructions:

“. . .NTN ___ will be delayed while the NICS continues its research. If you do not receive a final response from us, the Brady Law does not prohibit the transfer of the firearm on day/date.”

The NICS Examiner will provide the FFL with the date of the third business day after the firearm check was initiated. Business days do not include the day the check was initiated, Saturdays, Sundays, and any day state offices in the state of purchase are closed. If the FFL has not received from the NICS a final determination after three business days have elapsed since the delay response, it is within the FFL’s discretion whether or not to transfer the firearm (if state law permits the transfer). If the FFL transfers the firearm, the FFL must mark “No resolution was provided within three business days” on line 21d of the ATF Form 4473. It is recommended the FFL record the date provided in the delay response on which the firearm may be lawfully transferred under federal law if a final determination of proceed or denied is not received from the NICS.

When a transaction is DELAYED, the NICS Examiner begins extensive research on the potential prohibitor. When the research is complete, the NICS Examiner calls the FFL and gives a PROCEED or DENY decision on the firearm transaction.
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You will most likely have to wait until you are either approved, the three days elapse without a denial, or you are denied. If you are denied, contact FBI CJIS about an appeal. You can use the contact information here:

http://www.fbi.gov/hq/cjisd/nics/nicsappeals.htm

Good luck to you.