THE GUN GUY


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Brady Denials: When the Government Says
You Can't Buy a Gun, What Can You Do?

an interview with Attorney & Author Cindy Hill

JPFO Interview Questions

Q1. What is a Brady Denial?

A1. A Brady Denial is what most folks have come to call the situation where a person goes in and has the background check done which is required under the Brady Handgun Violence Prevention Act before they buy a gun, and the background check comes back saying that the gun dealer can not sell them the gun.

The way that works is like this: When a person goes to buy a firearm from a federally licensed gun dealer in the United States, he or she has to fill out a form called an ATF 4473 at the counter of the gun shop. That form provides information such as name, address, social security number, what kind of gun is being purchased, and so on. The form also includes questions about whether you have criminal convictions and are a U.S. citizen. The person trying to buy the gun has to swear that all the answers on the form are true, and if the answers aren't true, he or she can be charged with the crime of perjury, which is lying under oath. Then the gun dealer makes a phone call, depending on the state that'll be to either a state agency number or the FBI's National Instant Check system, and the info from the form will be run through millions of records in state and federal databases to see if the person trying to buy the gun meets one of nine different categories of reasons for which federal law would prohibit thm from being in possession of a firearm.

Now, those nine categories of reasons why a person can't have a gun under federal law aren't new, they are part of the Gun Control Act of 1968, though some of them have been added more recently. But the requirement of having the background check first, before purchasing a gun, is relatively new, and all these millions of records that are getting loaded into these databases is a pretty new phenomenon, so thousands of people who have had guns all their lives and never realized they were supposed to be prohibited under one of these nine categories of the federal gun control law are suddenly in for a rude surprise when they go to buy a new gun.

Q2. Who gets Brady denials?

A2. Most of the media, and certainly most gun control advocates, would have you believe that the only people getting Brady denials are hardened violent criminals, who, they'd like you to think, are nasty evil people. Now, unfortunately, there are a few of those out there, but believe me, after twenty years of doing criminal defense law and representing hundreds or thousands of criminal defendants, I can tell you that the characatures of evil criminals are very few and far between, and very, very few of those are trying to lawfully purchase a firearm through a licensed firearm dealer, providing accurate information and legal identification on their background check forms.

The fact is that the people getting Brady denials are those who usually had no idea whatsoever that something in their background would leave them prohibited by federal law from having a gun. A typical example of folks I've represented would be a guy in his fifties who didn't realize that an incident he'd been involved in on his eighteenth birthday, where he and some buddies got drunk and stole someone's lawn ornament and wound up going to court the next day, had really counted as a felony conviction. The fact that the guy might have never had so much as a traffic ticket since, is a good family man, a good employee, contributes to his community, doesn't matter to the Brady system; as far as they are concerned, he's one of those hardened criminals, a convicted felon trying to get away with buying a gun.

Q3. Do these Brady background checks ever make mistakes?

A3. You betcha! In addition to these ridiculous denials which have the impact of disarming a large segment of our population who are in fact today perfectly respectable citizens even if they have a past incident that results in them being on the denial list, there are hundreds if not thousands of people who receive Brady denials purely by accident, because they have a similar name or date of birth to someone else who is on the denial list. Not coincidentally, this happens to awful lot with people who have 'non-Anglo' names, such as hispanic or middle eastern names, where the person looking at the data base is ignorant of how these names work or thinks they all sound alike. Over 100,000 people every year get Brady denials, and many of those are just plain mistakes.

Q4. You said there were nine different categories of reasons why someone can be prohibited from possessing a firearm under federal gun control laws. But the only one of these we usually hear about is convicted felons. Tell us about those criminal convictions that will land you a Brady denial.

A4. We usually just do hear about the category that's often called, innaccurately, 'felon in possession'. It's true that the biggest category of people who are prohibited from possessing firearms are those with a criminal conviction; however, the federal definition of what criminal convictions count is very, very confusing, even to attorneys who are practicing in this field. Many felony convictions in fact don't prohibit a person from possessing a firearm, even if the person served a jail sentence. Most white collar business crimes, for instance, don't 'count', so people who rip off millions in pension funds or commit security fraud can still own their $25,000 shotguns and go grouse hunting. I'm sorry to sound so cynical about that, and I'm sure there are some perfectly nice rich people out there who happen to have white collar crime convictions, but federal gun control law is thick with classist and racist overtones, and this is just one of the most blatant examples of it. Rip off a lawn ornament as a kid being a little overboisterous, and get threatened with federal prison for trying to buy a new deer rifle; commit a white collar crime that devastates hundreds of working joes, hey, no problem, have all the guns you want. But that's just one of my pet peeves.

Other felony convictions that don't count include those where someone has gotten a pardon, if you had a deferral arrangement where the conviction was later set aside, or, if you live in a state where some of your rights were taken away when you were convicted, and then those rights were restored to you, such as the right to vote, then the conviction no longer counts for federal firearms prohibitions. Get convicted for the same thing in Vermont where we decently don't take away any rights upon conviction, and the conviction counts for the rest of your life. Rather ironic.

Then, another irony is that many state misdemeanors also count as felonies for purposes of the federal gun control statute. If the state misdemeanor has a potential jail sentence of two years or more, the federal gun control statute counts it to prohibit you from having a gun. This includes a lot of state DUI, assault, and drug convictions.

So just on that one category alone, there's a lot of confusion.

Another large category for denials is misdemeanor convictions of domestic violence. This is really taking many people by surprise, as records of things that were treated as very minor incidents decades ago are suddenly popping up and causing Brady denials. A third category related to this is anyone who has a pending family court stay away order. This causes a lot of surprise Brady denials simply because court records often don't note when these stay-away orders expire. And a fourth category that's related to the criminal ones is that of fugitive from justice. If you've got a warrant out for you somewhere - even if it's for an unpaid traffic ticket you got while on vacation in a distant state and forgot to pay - you are a fugitive from justice and will get a Brady denial

So all four of these categories - felony convictions, misdemeanor domestic assault convictions, and family court stay away orders, have to do with court records, and depending on the state and the court, these records can be very confusing or inaccurate, especially with older records that were handwritten, kept on little index cards that are unreadable.

Q5. So if only four of the nine categories had to do with court records, I take it the other five have nothing to do with criminal convictions?

A5. That's right, and even a lot of gun owners I know are surprised by this. The other categories for denial include a dishonorable discharge from the military, being an illegal alien, or renouncing your U.S. citizenship.

Then there's a very troubling one, which is being a 'known user of illegal drugs'. This particular category doesn't require any criminal conviction or proof of any kind, it relies on the opinion of your local law enforcement, and I've talked to at least two guys who received this denial, with no criminal record, because they had pony tails and Harley Davidsons so their local police chiefs assumed they were pot smokers.

Another category which is increasingly becoming a problem is that related to mental incompetence. Last year the Veterans Administration uploaded thousands of records of primarily Vietnam era vets into the brady background check databases, and the suspicion is that military discharges on the grounds of mental health issues are going to start being used as grounds for brady denials. These things raise all kinds of issues about the privacy of mental health records, about just how far the government is going to go in disarming people who seek mental health counseling for temporary problems like depression associated with a job loss, and so on.

So these five categories have nothing to do with criminal convictions at all. Many people without a single criminal conviction have been disarmed by federal gun control.

Q6. So why a book about Brady Denials?

A6. Well, every year, of the 100,000 people who get a Brady Denial, many of them are simple mistakes of identity and should be promptly overturned. More importantly, of those Brady Denials that are based on actual incidents that the folks running the background check databases say meet one of these nine categories of prohibition under federal gun control, if you take the time to check into the details, many of these are also erroneous and should be overturned. And of those that are accurate, that is, for people who really do have an incident in their past that meets one of these nine categories, there are also lots of ways for people to go back and try to remove those things from their records.

But most people so far are not pursuing these options. Many are afraid of bringing more attention to themselves and raising red flags to government law enforcement agencies. Although I can understand that, on many levels it's just not right. And just like getting a denial of coverage from a health insurance company, many people think that the denial must be correct and don't think about pursuing and appeal or some other avenue to get it overturned. So thousands of American citizens are accepting being disarmed when they don't have to be.

The Gun Control Act of 1968, all these federal prohibitions on gun ownership, are troubling enough when you look at them; but over all these years, this law has been applied with a lot of discretion on the part of law enforcement, prosecutors, and judges. In a lot of rural areas, no one has bothered a guy with a hunting rifle even if he was technically not supposed to have one, as long has he didn't do something improper or dangerous. Now, admittedly, this level of discretion has it's downsides - many times this law was applied in a racist or classist manner, like a lot of criminal laws. But now it's come back to bite everybody. With the Brady background checks and the Bush Administration's Project Safe Neighborhoods promising 100% enforcement of the gun laws that are on the books, I suspect that something close to half the adult men in this country could well find themselves disarmed, and that disarmament, given the skewed nature of our criminal justice system, is likely to have a heavy racial bias to it.

So I'd love to see our nation and Congress revisit the Gun Control Act, but something tells me that's not real likely to happen soon. In the meantime, I'd like to see gun owners, who are generally so fond of their rights and vocal about them, being assertive about putting the government to the test on Brady denials by appealing the denials and challenging them in court whenever possible. And when it got to the point where I was overwhelmed with phone calls from folks from all over the country asking me what they could do about their Brady denial, I decided this book was the best way to let people who'd gotten denials, and their lawyers, know what their options are. And Paladin Press has been real enthusiastic about the book, and is being a great help in getting it out there.

Q7. So if someone gets a Brady Denial, what should they do?

A7. First, don't panic, and try not to get angry. The guy behind the counter at the gun store doesn't know the reason for your denial, and would love to sell you the gun if he could, but he can't. You'll need to get some information from him including a transaction number and the contact information for where to write to get the statement of reasons for your denial. When you get home, write that letter - clear, brief, and polite - asking for the statement of reasons for the denial. Then - this is important - you need to know that getting a Brady denial means it's illegal for you to be in possession of any firearms, even those you already own at home. If you want to avoid possible seizure and forfeiture of your guns, get them into storage with either an FFL or a friend or relative who you know is legal to possess firearms and who agrees to hold them and not let you have them until your situation is resolved. Once you get your guns safe and receive the statement of reasons for your denial, you should get a copy of this Brady Denial book and hire a local lawyer who is familiar with the field of law related to the reason for your denial - criminal defense if it's a criminal conviction, mental health law if it's due to a mental incompetency issue, and so on. If your lawyer wants to, they can contact me for a consultation regarding your Brady denial case, by emailing me at lawyerhill@yahoo.com. But, even without doing that, this book should give you and your lawyer a good idea of the range of options available to you to either appeal your Brady denial, challenge it in federal court, or fix the underlying problem that caused the denial.

Now, not everyone can overturn their Brady denial, obviously, but many people can, one way or another, if they are persistent enough. It is certainly worth getting the statement of reasons for your denial, taking a look at this book, and at least having an attorney look the matter over, as it may not only help you out, but help stop the government from illegally disarming yourself and others in your position.

Q8. And where can folks get the book?

A8. They can order online from Paladin Press at www.paladin-press.com.

Jews for the Preservation of Firearms Ownership
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