Insider: LE Adds Names to NICS Violating Due-Process
John Crump wrote a post on the website, Ammoland, that details how people can be added to the National Instant Criminal Background Check System (NICS) index without them even knowing it. Whatsmore Can add people to the index without the person even violating state law. The answer is yes, here's how.
What is The NICS:
We all probably understand that law enforcement adds information such as criminal convictions and adjudicated mental health issues to the NICS system. Convictions for some crimes such as domestic violence or certain drug offenses, and mental health disqualifications trigger a notification for a federal firearms dealer when that person attempts to buy a firearm.
It may seem relatively simple, but as errant humans, clerks or officers can enter information incorrectly. I have seen this happen where there is a parent and child with the same name. Occasionally one's criminal history or crimes get mistaken or reported for the wrong person. I have also seen people with the same name, but different social securities get swapped.
You are likely only going to know about the error if LE or an employer runs a NICS check, or the individual tried to purchase a gun. And not all agencies participate in sharing information with NICS. Furthermore, we have seen instances where agencies that are supposed to enter arrest records simply don't do it.
Here is a piece that highlighted how the NICS system has failed in the past.
In other words, like most things in life, the NICS system is far from perfect. But that isn't the disturbing thing uncovered in the Crump piece.
FFL Purchases:
When you purchase a firearm from a Federal Firearms Licensed Dealer (FFL), runs a NICS check, and completes ATF form 4473. Among other questions on the form, you must answer question E, which states:
Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.
For the here and now, it doesn't matter if we agree with medical marijuana or not. The ATF currently views the situation through this lens. In fact, the ATF issued a letter in 2011 to all FFL's reiterating their stance. You can read that letter by NICS system has failed.
So if you live in a state that doesn't locally enforce certain drug possession charges, you are good to go. No, and for two reasons. First, knowingly providing false information on the 4473 is a felony. Secondly, from information from an anonymous informant, Ammoland reported that law enforcement could add someone into NICS as an “unlawful user/addicted to controlled substance” without arresting them.
An Insider Brings an Issue to Light:
The directive called: “Guidance for Requesting a Submission of the NICS Indices Unlawful User/Addicted of a Controlled Substance Files” describes the process for law enforcement to add someone to the index for things like:
- failing a drug test (I am speculating here because I have not seen the document. But I would suspect this would also include blood toxicology with positive results. This may come up during a DUI arrest.)
- contacting the person with drugs in their possession (even if they don't arrest the person or it is legal in that state to possess the substance)
- the person admitting they use drugs or are addicted to drugs (even if they didn't have drugs on them at the time of contact.)
The way I see it, is this isn't a question of “should people use drugs and possess firearms?” It is an issue of due process, clarity in the language, and transparency for law enforcement.
Due Process:
People are most familiar with the Fifth Amendment, which explains some restraints on what law enforcement can do to someone suspected of a crime.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
However, when written initially, the 5th Amendment restrained only the federal government's powers, not the states. Though through precedent, and the 14th Amendment, these same rights control state governments.
The Fourteenth Amendment is what most people think of when they think of due process:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It is hard for me to reconcile stripping someone of their 2nd Amendment rights merely on an accusation, without allowing them to argue against it or even know about it.
The clarity in the Language:
The words we use matter, especially when it comes to establishing the law. Change a “shall” to a “may,” and the elements of the crime can change dramatically. In that sense, the language of “user” or “addicted” is far too vague.
Is someone who regularly used drugs but never was arrested and now clean for 3 months still an addict? In that same vein, is someone who tried marijuana a week ago a “user?” How long of a period must pass before someone can answer question E on the 4473 truthfully?
Transparency for Law Enforcement:
People deserve to face their accusers and allegations that implicate the stripping of their fundamental right to self-defense. The second Amendment aside, we have the right to defend ourselves and our families. The Second Amendment only restrains the government from prohibiting our possession of firearms.
Before law enforcement restrains anyone's rights, the person needs to know- no ifs and or buts.
Conclusion:
You got my opinion of the excellent post from John Crump. Let's hear your opinion; it's free.
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