Expert: Robert P. Firriolo - 2/2/2012

Question
First off Mr. Firriolo I would like to commend you for all the voluntary work you do educating us all on our Second Amendment rights. An educated public is a very good thing. which brings me to my question. Can my weapon be taken from me after 3 day "delayed" period has passed. Say i pick up my weapon after there has been an undetermined denial or approval. and two weeks later something is found that shows i cannot have that weapon. can that weapon be confiscated? if so what agency would take my weapon? I live in upstate NY. Also if i purchased this firearm on the "fourth" day after they have failed to determine my proceed or denial status. could i legally transfer that weapon in a private sale? or could they confiscate it from that person i sold it to? Thank you for any help you can provide.

Answer
Thank you for your kind note. I am a little unclear on precisely what you are asking in your hypothetical questions, but I will do my best to try to answer them.

A prospective purchaser of a firearm from an FFL may be authorized to proceed with the transfer if either: 1) he is approved by NICS; or 2) the NICS Examiner advised the FFL to DELAY the firearm transaction while NICS continues its research, and where the FFL does not receive a final response by the third business day after the firearm check was initiated.

The failure of NICS to find information indicating that the transferee is a prohibited person does not mean that the transfer is legal. That is, if a prohibited person acquires a firearm through an FFL and the NICS check fails to determine that the person is prohibited, that person is still in violation of the law by being in possession of a firearm.

For example, the NICS check may not reveal that the transferee is an unlawful user of a controlled substance. When such a person indicates that he is not such a user on the 4473, he has committed a federal felony. When such a person takes possession of a firearm or ammunition, he has committed a separate federal felony.

It is impossible to generalize how such a person could be discovered after the NICS approval is given or the three-day delay period elapses and the transfer is completed. The NICS Examiner could locate the records; a state or local law enforcement agency could provide new information to NICS; local law enforcement could arrest the person on an unrelated charge and determine he is prohibited from possessing firearms and in possession of one.

It is also impossible to generalize what agency would respond. If NICS determines that a transfer has been authorized for a prohibited person, FBI itself, or through state or local law enforcement, could investigate, arrest, and/or prosecute that individual.

The bottom line is that any prohibited person found to be in possession of firearms or ammunition is subject to arrest and prosecution for a federal firearms offense. It does not matter when or how he acquired the firearm.

If a prohibited person transfered the firearm to a third person in a private sale, the firearm could be seized as evidence in the prosecution of the prohibited person. Whether it would eventually be returned to the third person at the conclusion of the prosecution is unclear.

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