REPORT: More Americans Being Added to Background Check ‘Prohibited’ List without Due Process
REPORT: More Americans Being Added to Background Check ‘Prohibited’ List without Due Process
Teresa Mull Jun 20, 2021 0 Comments
By: José Niño

Americans are being added to the National Instant Criminal Background Check System (NICS)’s “prohibited” list without due process.

According to John Crump of AmmoLand, the unthinkable is already taking place based on leaked documents the pro-Second Amendment website received. The document AmmoLandreceived is titled, “Guidance for Requesting a Submission of the NICS Indices Unlawful User/Addicted of a Controlled Substance Files.”

Crump alleges that this document gives law enforcement the power to “add suspects to the prohibited list even if the subject hasn’t been convicted of a drug charge.” Unbeknownst to most gun owners, they can be stripped of their Second Amendment rights without a court convicting them of a drug-related offense.

With this expanded prohibition on the people barred from owning firearms in mind, new questions on due process rights have naturally arisen. A new drug offense category could potentially add hundreds of thousands of gun owners to the NICS Incides, which lists off the people the FBI bans from buying a firearm.

Crump outlined what happens when the NICS background check system picks up a prohibited buyer:

When a Federal Firearms License holder (FFL) runs a NICS background check on a gun buyer, the system runs the purchaser’s name against the NICS Indices. If the system comes back with a positive hit, the FBI’s system will deny the sale of the firearm. No other information is supplied to the FFL about the denial.

Under the aforementioned form, law enforcement has the ability to add individuals to the NICS Indices in the event they fail a drug test. Strikingly, the reporting officer doesn’t have to press charges against the individual who tests positive for drug use. We must remember that many drug tests are false. To make matters worse, the individual does not receive any notification from the FBI that he was added to the NICS Indices.

Crump explains how even with marijuana legalization taking place at the state level, otherwise lawful gun owners could still be deprived of their right to bear arms:

The form also allows Law Enforcement to add a suspect to the NICS Indices if they claim they have found the person in possession of drugs regardless of state law. That means that a police officer finds someone in possession of a drug legal in a state, the officer can fill out the form and have the person added to the NICS Indices. More and more states have legalized marijuana, but the drug remains illegal on the federal level. An officer could find a person with marijuana and let them go because they are prohibited by state law from arresting them. The officer still could report them to the FBI and have their firearms rights revoked.

What Crump mentions in his recent piece illustrates the many pitfalls of NICS. Prior to the issuance of this form, NICS was already notorious for its false positives, in which many lawful Americans would end up being mixed and match with criminals who share similar names. This is the danger of having NICS in place.

Sadly, many Republicans have supported NICS and have done little to defund it, let alone abolish it. As long as NICS exists, there will always be the potential for the federal government to infringe on lawful Americans’ right to bear arms.

No-compromise Republicans can expose NICS’s flaws and make gutting that system a major campaign priority.

José Niño is a freelance writer based in Austin, Texas. Sign up for his mailing list here. Contact him via Facebook, Twitter, or email him at joseinpolitics@gmail.com. Get his e-book, The 10 Myths of Gun Control, here.

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JUNE 24, 2021
Good morning, Bulletin readers. President Joe Biden lays out a wide-ranging strategy to tackle gun violence and its root causes. FBI data shows 2020 background checks blocked a higher share of would-be banned purchasers. And an analysis of the relationship between progressive demands for criminal justice reform and the spike in crime. (Spoiler alert: There isn’t a link, says a leading reformer.) — Ko Bragg, Bulletin writer
WHAT TO KNOW TODAY

In new anti-violence plan, Biden calls for zero tolerance on problem gun dealers, promotes community-led solutions. At the White House, the president announced a policy directing the ATF to revoke federal licenses of gun dealers the first time they willfully violate federal law and increase the number of inspections and enforcement actions taken against problematic sellers. These changes follow our major investigation last month with USA TODAY about the agency's willingness to let gun shops remain in business despite lengthy histories of noncompliance. Brian Freskos parses Biden’s ATF pledges and the rest in a new piece. That's not all: The full strategy also includes:
Prioritizing investments in community-violence intervention efforts, including a new White House collaborative with 15 jurisdictions that have pledged to use federal stimulus money from the American Rescue Plan or other public funding for community-focused work.
New guidance on how local governments can leverage the $350 million in the ARP to bolster public safety, including hiring more police or using the money for a slew of non-law enforcement programs. (Read more from The Trace’s Jennifer Mascia on what Oregon’s most populous county is doing with its ARP funding.)
Helping formerly incarcerated people in 28 communities transition out of the criminal justice system and connect with “quality jobs.”
Expanding work opportunities, summer programming, and other social services for young people. The White House pointed to existing federal funding streams in the ARP as well as a recent Labor Department grant for pre-apprenticeship programs.
“For every dollar police departments have for public safety, nonprofits get maybe a penny or two,” said Eddie Bocanegra, a Chicago-based advocate who was at the White House and applauded Biden’s focus on community efforts. “This is an opportunity to increase the resources in the nonprofit sector, particularly in communities that are grappling with these issues and are working to curb this violence.”

Amid record gun sales last year, the share of prohibited would-be buyers ticked up. According to FBI data obtained through a FOIA request from Everytown for Gun Safety, the background check system in 2020 issued the highest number (over 300,000) of annual denials ever, nearly double the amount from 2019; 42 percent of people denied had prior felony convictions. Nor was the increase solely a function of record buying: The number of prohibited purchasers who sought out guns increased from about 0.6 percent to 0.8 percent. One gun policy expert theorized that could be because the surge of first-time buyers included people who were not aware they were banned from purchasing guns. [Everytown’s nonpolitical arm provides funding to The Trace. Here is a list of The Trace’s major donors and its policy on editorial independence.]

Leading criminal justice reformer on why “defund the police” isn’t to blame for the violence spike. As fraught political debates continue over criminal justice reform, particularly in the shadow of a nationwide increase in violent crime, Fordham law professor John Pfaff parses data to argue that progressive demands for reform, including defunding police, are not to blame for the crime uptick, despite a mounting backlash to so-called progressive prosecutors. He points to how homicides rose in 60 of the 69 major police departments last year, despite wildly different criminal justice policies between regions. “One important upshot of this uniformity is that there is no evidence that cities with more progressive prosecutors experienced relatively worse outcomes than those with more conventional district attorneys,” Pfaff writes in The New Republic.

Analysis: Texas’ new silencer law might not achieve what it claims. Last week, the state passed a law permitting the sale of unregistered gun silencers made and sold within Texas, a rule putting the state at odds with federal laws that require a $200 tax stamp and registration with the federal government. Drawing from a 2014 case out of Kansas, which had passed a similar silencer law, The Reload considers that the widespread insistence from Texas lawmakers that their new legislation will protect them from federal interference does not consider the lifetime ban on gun ownership that could arise should the feds prosecute such sales.

The Trace in the media. Our journalists and contributors have been busy lately discussing their work. A few highlights:
Lakeidra Chavis spoke with WBEZ’s Odette Yousef about mass shootings in Chicago and how media narratives often exclude Black victims of gun violence
Alain Stephens was on a KQED special about gun violence, as well as KERA’s Think to talk about our big ATF reporting project
Brian Freskos and Alain both appeared on WAMU’s 1A to discuss ATF enforcement and the nomination of David Chipman as its new director
Trace contributor Arionne Nettles was also on a WBEZ segment speaking about her reporting for our big feature on Black mothers as the real experts on gun violence
DATA POINT

1,300 — number of people who ended up in the emergency room from 2017 to 2020 after interacting with police in San Jose, California, one of the only jurisdictions that requires officers to report such injuries. The CDC estimates 400,000 people nationwide have gone to the ER after interactions with cops or security guards since 2015, but that is likely an undercount. [The Marshall Project]
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Add more gun laws, and more restrictions. It has worked in all the states and cities that have done so.

Because criminals are very conscientious about obeying the law.

why can't Joe focus on the criminals? why must he target the law abiding gun owners? for phfucks sake, the liberals are exhausting.

Now they're coming after FFL holders. Even a first time infraction will cost their license.

You really think Joe can focus on anything?

Probably has to be told when to wipe his azz!