Background denial

[igboyd]

I attempted to purchase a firearm today and was denied by the colorado criminal background check system.

The only thing I can think of that would cause such a thing is an error. I did plead guilty in 1998 to an amended class 1 misdemeanor (arizona, not domestic violence, 6 mos maximum penalty) in 1998. I checked the disposition with the jurisdiction in question this afternoon, and there is nothing outstanding. The case is closed and has been for some time.

My understanding is that the maximum penalty must be one year. Therefore, this does not apply.

Is this correct?

[pickenup]

Their words.....


(B5) Are there certain persons who cannot legally receive or possess firearms and/or ammunition?

Yes, a person who –

(1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year

So it looks like you are correct.

There is an appeal process.
Do it and ask why you were denied.
Most times it is an error on their part, and works out, if you take the time to do it.

[Batteriesnare]

From what I understand, you should have been okay. I did find this however on the CBI webpage, which should help you appeal the denial:

http://cbi.state.co.us/ccw/Statutes/24-33.5-424.asp

(5) (a) Upon denial of a firearm transfer, the bureau shall notify the transferor and send notice of the denial to the NICS system, pursuant to 18 U.S.C. sec. 922 (t). In addition, the bureau shall immediately send notification of such denial and the basis for the denial to the federal, state, and local law enforcement agencies having jurisdiction over the area in which the transferee resides and in which the transferor conducts any business.

(b) Upon denial of a firearm transfer, the transferor shall provide the transferee with written information prepared by the bureau concerning the procedure by which the transferee may request a review of the denial and of the instant criminal background check records that prompted the denial. The bureau shall render a final administrative decision regarding denial within thirty days after receiving information from the transferee that demonstrates the transfer was improperly denied.

(c) In the case of any transfer denied pursuant to paragraph (b) of subsection (3) of this section, the inability of the transferee to obtain the final disposition of a case that is no longer pending shall not constitute the basis for the continued denial of the transfer so long as the transferee provides a letter signed and verified by the clerk of the court or his or her designee that indicates that no final case disposition information is available. Upon presentation of such letter to the bureau, the bureau shall reverse the denial.

(d) If the bureau reverses a denial, the bureau shall immediately request that the agency that provided the records prompting the denial make a permanent change to such records if necessary to reflect accurate information. In addition, the bureau shall provide immediate notification of such reversal to all agencies and entities that had been previously notified of a denial pursuant to paragraph (a) of this subsection (5).

[igboyd]

Thanks for the info and confirmation. I do intend to appeal.

A search around the forum indicates what may be a couple of caveats:

http://www.co-ar15.com/forums/showpost.php?p=45060&postcount=13

First of all, I plead. BBAdmin indicates if the original charge was punishable by more than 1 year that is grounds for denial. Though he mentions deferred sentence rather than a plea. If this does apply to a plea, that seems to me to be kind of wrong. That leaves a citizen at the mercy of the whims of a DA. Though what is just and what is the law are two different things for another discussion.

Secondly, the plea was for possession of marijuana (8.77 grams). BBAdmin indicates that they could deny on this basis as that may indicate an "unlawful user of any controlled substance."

If the first case applies, is there any recourse other than pardon from governor?

If the second case applies, how does one go about proving that they are no longer an unlawful user of a controlled substance? Do you all know of any cases where this has been successfully appealed?

And finally (edited) how long do these appeals processes typically take?

[theGinsue]

Keep in mind that a "plea" is nothing more than pleading guilty in order to gain a lesser sentence. For misdemeanor charges, this lessor sentence is often a "deferred sentence" which means that you have still been convicted of the crime in question.

In some cases, part of the plea is that the charges will be "dismissed" IF you abide by the terms of the conviction/deferred sentence for a period of time specified in the sentence. This occurs on a case-by-case basis and is always specified at the time the pleas is offered/accepted. If this happened in your case it will be in your court paperwork.

This denial is just another example of how the government is using one-time misdemeanor charges to prohibit people from ever legally owning a firearm.

[Tristan]

Colorado's system is really messed up. My brother worked there (but in the ICTF).....there are over 600,000 "inconsistencies" on peoples records he said. It might just be one of those. However, if you have a pending charge or an FTA or an unpaid ticket you can get denied, too. You might want to scan your memory and see if you have anything outstanding that has not been taken care of yet. The DMV's system is even worse. This includes warrants and such from other states, too.

[igboyd]

Thanks again, do appreciate the response.

In regards to my first question about conviction vs. original charge, I think I'm just going to have to see a lawyer and perhaps go as far as seeking a pardon. Plead guilty to a lesser charge, not a lesser sentence, that I wouldn't think would fall under the federal prohibition but who knows. This was my first purchase, and perhaps I was just denied with the hopes I wouldn't appeal.

As to my second question about a 11 year old minor drug conviction indicating current drug use, I found a bit of information (http://www.ttb.gov/rpd/tdatf391.htm) that I'm posting here for future use by others in similar circumstances:


An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year, or multiple arrests for such offenses within the past five years if the most recent arrest occurred within the past year.

[igboyd]

Thanks Tristan -- I am hoping for an inconsistency. Perhaps a lack of communication between states/feds. I don't *think* I have any outstanding tickets. But then again, if I did, I would've taken care of it already.

As an aside, I've been going over this forum and others trying to determine likely outcomes and I'll tell ya all, I'm kinda shocked by what I see. As mentioned, this is my first purchase. I would never of thought that I would have to jump through so many hoops in order to exercise rights "guaranteed" by the second amendment. And I'm not even trying to get a CCW. I purchased a shotgun. What the heck.

It leaves me wondering how well received (by the press, and others) it would be if one had to jump through similar hoops to exercise first amendment rights. My guess is not well at all.

As a second aside Tristan, off topic, I noticed how your sister-in-law has been infected by hep C at Rose. I'm terribly sorry. My wife gave birth by c section to our first daughter in April at Rose. After this disgusting individual was presumably let go, but I'm nevertheless sweating bullets.

[Tristan]

Oh, man! That sucks! I hope your wife and new baby are okay!
Though they offered my sister a settlement, it didn't include medical treatment-be careful and I'll pray for you guys!

[gnihcraes]

A friend was recently denied, just weeks after receiving her CCW permit. Turns out, her daughter got a bunch of parking tickets in the car that is registered to my friend. They paid off the parking fines, took the car back and all was good.

It could be something that simple... unpaid fine somewhere or similar item.

Appeal.

Kc.

[ChunkyMonkey]

I got denied because I put Fraud Alert on my ss. Don't ask me how it is connected. I had to wait for 2 months for the fraud alert to be completely gone.

[Hannu]

Perhaps not the same circumstances, but I got background denial a couple of days ago. I am legally in country with non-immigrant visa. We agreed with FFL that I had then resided 91 days in CO and my CO hunting license is valid.
I have not even got parking ticket in US. I checked my record with CBI website tool, there is no arrest record so denial can not be because some other person would have my name and criminal record.
My wife has exactly the same circumstances, with hunting license etc. and she got denial, too.
As far as I know, when we have no criminal record, have resided CO at least 90 consecutive days + have hunting licenses, we should be good to go. Well, it seems there is something ATF website is not telling me :(

Any help would be very appreciated.

Yes, I already heard it and I know, I can always buy a flight ticket to more gun friendly place and it is my second option. But would not like to, if got that denial just because of some simple things I do not know.

[Blubyue]

If you are positive there is nothing that can deny you, have them re-run your app. I was denied for my first gun purchase and had them re-run my background and it was approved.

During busy gun purchasing seasons the feds automatically deny after a positive review so that it will be double checked for errors.

This is not factual, only what the salesman submitting my app told me.

Im sure someone can chime in on the factual basis on this event.

[BadShot]

Call CBI and have them explain why to you. There is an appeals process you can follow and I've found (helping others out) that CBI is very helpful and responsive. Be polite and respectful ..

I've seen folks get irrate and stupidly mouth off them the agent on the other end, oddly that didn't help [ROFL1]

[clublights]

one thing to remember is that CBI denys on ARREST records... Not CONVICTION records. if you have ever been arrested for a crime punishable by over 1 year .. so on and so on .. they will deny .. then you have to go " get it fixed" by calling them . you can get arrested for a felony and not be convicted of one but CBI WILL deny . I had an overzealous officer arrest me for a serious charge but as soon as the DA got ahold of the paperwork he said you cant charge him with THAT, and dropped the case right then and there.

[Hannu]

Thank you all, you have been very helpful.
I do not have any arrest or criminal record, so that is not the case. Having been in country for little more than 3 months, have not even got parking ticket (yet...) :)

Only thing I can think of, might be related to my non-immigrant status. If Colorado has state laws or some other regulations why they deny my BG check ? I have not been able to find any info that Colorado would have tighter than federal law, but if somebody knows better than I do it would be very nice to know...

I spoke with ATF and according to them we are good to go. I am gonna visit my FFL on monday and if it does not help will call CBI on monday.

[MrPrena]

Perhaps not the same circumstances, but I got background denial a couple of days ago. I am legally in country with non-immigrant visa. We agreed with FFL that I had then resided 91 days in CO and my CO hunting license is valid.
I have not even got parking ticket in US. I checked my record with CBI website tool, there is no arrest record so denial can not be because some other person would have my name and criminal record.
My wife has exactly the same circumstances, with hunting license etc. and she got denial, too.
As far as I know, when we have no criminal record, have resided CO at least 90 consecutive days + have hunting licenses, we should be good to go. Well, it seems there is something ATF website is not telling me :(

Any help would be very appreciated.

Yes, I already heard it and I know, I can always buy a flight ticket to more gun friendly place and it is my second option. But would not like to, if got that denial just because of some simple things I do not know.



Although you are on a non-immiration visa (i551 OR a greencard), I believe you are on an exclusion of ones who can obtain firearm from the website below
http://www.atf.gov/press/releases/2000/06/061600-openletter-ffl-non-immigrant-aliens.html


Maybe if you print that out and hand it to the FFL, it might help.

I think ATF allowed non-immigrants purchase firearms duing mid 90s. I've seen tons of my international friends at DU and CU who legally purchased firearm from an FFLs. However, law changed, and they had to give up that rights.
Sucks to give up that rights, but they are not a US resident nor citizen of US.

[Eow]

one thing to remember is that CBI denys on ARREST records... Not CONVICTION records. if you have ever been arrested for a crime punishable by over 1 year .. so on and so on .. they will deny .. then you have to go " get it fixed" by calling them . you can get arrested for a felony and not be convicted of one but CBI WILL deny . I had an overzealous officer arrest me for a serious charge but as soon as the DA got ahold of the paperwork he said you cant charge him with THAT, and dropped the case right then and there.

That is totally outrageous. I guess the concept of innocent until proven guilty is not something law enforcement believes in any more.

[theGinsue]

I believe that the concept of "innocent until PROVEN guilty" disappeared a long time ago. More and more it seems like the burden of proof falls on the suspect unless you're suspected of a truly heinous crime or have an existing rap sheet showing a history of criminal activity with a string of victims, then you're a victim of "the system" and must have the protections of the law. I can't blame LE for this so much as I blame the meddling bureaucrats.

In regards to denials on BG checks, I was once denied while living in IL. They didn't provide any reason for the denial. I had to work to get in touch with the IL office that handled the FOID checks to get an answer. It turns out that my actual address didn't match the address on my FOID (Firearms Owners IDentification card) card.... I had moved about 2 blocks away, on the same street in military housing. After waiting another 10 days for an "emergency re-issue" of my FOID card, with the correct address on it, I was approved. The woman who told me I was denied said that it was lucky that they didn't tell her to have me wait as this meant that LE was on their way to pick me up.

Hannu, I hope that this can be resolved and that you are able to get approved.

[Hannu]

I believe that the concept of "innocent until PROVEN guilty" disappeared a long time ago.

Sad to hear that :( I thought earlier that would be the case only in european soviet union called EU :(
I have not arrest record, have not got arrested or had no any other problems with law. My only contact with local LE so far: I was once pulled over by an officer. It was when my car was brand new, he had not noticed temporary paper license inside back window (covered effectively by large rear spoiler) and wanted to make sure that my car had it.

I have Colorado hunting license + 90 days of residency and no criminal record in any country, so ATF says I am good to go then. FFL agreed with me and my documents I gave him. He was also quite surprised about denial. I have already paid firearms intended to buy, so FFL does not need to suffer :)

Only thing is, if Colorado has some special restrictions that are different from federal law. That one I do not know and have not found any info about tighter than federal law restrictions.

I hope it can be solved next week. It would make me sad to leave otherwise so nice area, with mountain view from my home etc.

[BigBear]

No one seems to have said this yet, but you are allowed and encouraged to ask "why" you were denied. It it your record and your right to know... oh wait, I said "rights"... never mind. hehe.

[TFOGGER]

I was recently placed on a "Hold sale" by CBI, for a juvenile arrest (criminal mischief) that was expunged by Jeffco in 1983. I had to get Jeffco to contact CBI to get this fixed. Odd, since I have been through 2 FBI background checks related to CCW permits, and it had never happened before.

[gnihcraes]

the denial can be something simple and un-intended... a friend was denied purchasing a gun a while back, and couldn't figure out why - she had just been given her CCW permit from jefferson county. ?? Turns out a car registered in her name for her daughter to drive had gotten lots of parking tickets by the daughter and failed to pay them. So after cleaning up that minor mess, she was allowed to purchase guns again...

so you just have to ask them "Why" through the proper procedures...

[ryanek9freak]

Fucking stupid Colorado and their CBI checks. It's bullshit, that they can deny you and not give a reason why, they leave it up to you to investigate. If Colorado would use the federal NICS system, like they damn well should be, it is up to the federal system to provide a reason within 3 days of your denial, and if they cant, by law the sale must be alowed to proceed.

They really need to get rid of that horse shit. All over some garbage that happened more than 10 years ago.

[Hannu]

Our denials were reversed last friday :D So far so good, case closed. Thank you for everybody !
Basic reason was: in our case, FFL should have called to CBI, instead of trying to do BG check in the internet. When it was denied, official appeal process just took some time. I think we both are little more clever now.

STI Matchmaster now tuned for matches, single stack still under work... What you get when you build 1911 with all major parts from different brands (STI frame, Caspian slide, Kart barrel) ? Lots of filing and measuring, filing and measuring... :)

Any info about who could have a good (Lothar Walther, Krieger, Shilen...) 18"-20" AR-15 bolt-on stainless match barrel with rifle gas system, .223 Rem. chamber and something like DCM or hbar profile in stock, would help starting my AR-15... Just getting answers "perhaps you could get it in April or May" (Krieger).

[Sixgun]

Congrats[Awesom] Now go buy some more guns,
just to teach them a lesson. [Tooth]