Expert: Robert P. Firriolo - 12/2/2010

Question
QUESTION: 1 1/2 years ago I applied for a Cert Of Good Conduct for some things that plagued my mid-teens, which I was granted, restoring my civil rights.  I needed this for two reasons 1) I am involved in a start-up business and needed it for pre-seed investing 2) To obtain my CCW license.  Once I secured my my Cert Of Good Conduct I then started the application process for my CCW, also forgot to mention I live in Albany County. Anyway, after a rather fast track to the pistol hearing and completing all the steps I was granted my CCW license 1 1/2 months ago.  I went to the FFL (dealer) to purchase my first pistol to put on my license, returned the paperwork to the County Clerk and received on Monday (11/15) my coupon to pick up my pistol. Tuesday evening I went into the FFL (dealer) to pick up my pistol, filled the NICS (e-file 4473) out and the dealer told me he received a delay and I could pick up on the 23rd. Thinking all was OK, I left and received a call this morning that NICS had denied all together.  I went and spoke to the FFL (dealer) this morning brought in my Cert Of Good Conduct which he then proceeded to call NICS (Step 2 on his end) and make them aware that I have had my civil rights restored.  NICS told him to have me appeal which entails sending a letter with attached copies of my CCW, pistol coupon, copies of my Cert Of Good Conduct and carded fingerprints.  Maybe a miracle but I was able to get all of that done today and send it certified overnight mail to NICS in WV.  Now that you know a quick version of my 2 year ordeal, does this sound like something that is going to play out in my favor and grant me permission to pick up my pistol?  All of the correct channels have been followed, I was just a little concerned that NICS said "NO" after being granted a CCW license 1 1/2 months ago.  What's strange is that I though maybe NICS did not have record of my C.G.C but I remember when getting my record from DCJS before applying for my permit to be accurate on dates, etc on the application, I remember seeing that a C.G.C. was on there.  Do DCJS and NICS use different background check systems?  Sorry about making this long, I think this is about it and am curious what you think about the situation.  Thanks for taking the time to read this.

ANSWER: The answer to your question is not really a matter of law but really boils down to, "How is the Albany licensing officer going to treat the NICS denial?" That is difficult to answer definitively, but first ask yourself, why would the Albany authorities have any reason to know about the denial if you don't tell them? And second, why would they care, if your appeal is granted by FBI NICS?

You say you already have your license and the purchase coupon. Assuming that NICS updates their records and grants your appeal, then you will be able to pick up the gun from the dealer. If all Albany County knows is that you picked up a gun lawfully from a dealer using your coupon, and that they issued you a license based on their background check, that should be the end of the story as far as they are concerned.

DCJS sends arrest and disposition records to the same databases that NICS accesses. However, there is often a lag in time between when a conviction is expunged or a relief from disabilities is issued and that information appears in the database. In fact, the expungement or relief record may never appear in the NICS database until the individual notifies NICS upon a denial.

Good luck to you.

---------- FOLLOW-UP ----------

QUESTION: As a follow up; although I have not yet heard from NICS yet about the appeal, while picking up my finger-print cards from DCJS to send in with my appeal letter a woman who was in the lobby that overheard me talking to the receptionist came over and introduced herself as the person in charge of updating records for NICS in Albany.  What luck!  She has been helping me along with the process, thank God.  Come to find out that there was an open disposition on my DCJS file, which within a matter of 2 days I was able to contact the court who handled the case and have it cleared up, electronically filed and have my DCJS file updated.  Also, while being helped by the the court the woman helping noticed that the offences that I received the Cert Of G.C. for were sealed as a YO but did not reflect that on my DCJS file, she also updated that as well. Now, today I verified that in fact my file had been updated through the woman I met in the lobby at DCJS (she gave me her office number) and she confirmed it had been updated and I should be all set.  A short while later she called me and said that she spoke with her contact at NICS who thought everything looked good but then proceeded to tell her that it looks like there is something in my FBI file that is not showing on my DCJS file and they need some time to check one against the other.  I thought the DCJS file and the FBI file are the same?  I guess that is my question.  I have read over my DCJS file 100X to make sure there is nothing I may have missed and came to a certain conclusion that everything is 100% correct now and there should be no other hang-ups with being able to be granted the appeal. (which my new friend at DCJS is also helping push through much faster than the normal course of action)  Again, upon my own review and pondering this for 2 weeks, there are no federal barriers preventing me from being able to pick up my pistol.  Do you have any thoughts on this? Can 2 separate files exist on me, DCJS and FBI?  I have NEVER done anything to the extent of a federal crime.  No idea what it can be or just a simple mix-up, well not so simple!  Thanks again.

Answer
There may be differences between the DCJS and FBI file for at least a couple of reasons. One, FBI checks more than just DCJS records. Two, FBI will not approve a transaction if there is a missing disposition on a record, such as an arrest with no record of a conviction or dismissal.

In another matter I'm working on with FBI NICS, FBI asked me to forward all of the DCJS records my client obtained by himself, so FBI can check that FBI's records are correct. So, if one has trouble with getting NICS approvals for a transaction, a good first step is to obtain one's own DCJS records and dispositions from courts or law enforcement agencies, and have FBI review them to make sure their records are correct.