A recent federal district court decision from Washington State, Snyder v. United States, highlights the complex interplay of gun rights and the background check bureaucracy. The October 30 decision brings together several areas of Administrative Law – judicial recourse (available relief) for adverse agency actions, cooperation and split responsibility between state and federal agencies, administrative reconsideration procedures, statutory default provisions for agency delays, and how agencies obtain information and correct mistaken information. In the background, of course, is the Second Amendment – the complaint does not include a Second Amendment claim, but the court mentions it in passing twice in the opinion. The court’s ruling is on cross motions for summary judgment, deciding in favor of the government, and against the would-be gun purchaser.
Snyder tried to purchase a gun from a licensed firearms dealer twice in October 2013, but he did not pass the required federal background check – NICS, the background check system run by the FBI, issued a “delayed” response and did not approve the purchase. The same thing happened again to Snyder in April 2016 – this time the background check yielded an outright denial. Nevertheless, Snyder was able to obtain a concealed carry license in Washington, which he was able to renew in 2017. As in many other states, he had to pass a federal background check through the FBI’s NICS database to obtain his concealed carry license, and to renew it. This contradictory result furnished the basis for Snyder’s lawsuit, and it highlights some bureaucratic aberrations that would appear to be a mistake or glitch to an outside observer, but are in fact merely a feature of a complex decision-making system that draws information from different sources at different times, so that the same query may yield different answers on different occasions. A second part in this series will return to this contradiction and attempt to explain what happened in this instance. The complaint does not indicate whether Snyder has been able to buy guns since 2016, or whether he already owned other guns, which would be relevant for discussing the degree of infringement on his Second Amendment rights. The fact that he has been litigating his denials and delays up to now suggests that he has been unable to initiate new purchases in the meantime, but as the court points out, the dealers were free to sell him the three guns he was originally unable to purchase as of June 2018.
According to a 2016 Audit by the Office of the Inspector General, when the FBI does NICS background checks, it has a 99.8% accuracy rate in denials (it is impossible to assess the number of inaccurate approvals, because federal law requires the deletion of NICS records within 24 hours of an approval). To put things in perspective, denials occur in less than 1% of the background checks, which means problems like Snyder’s are disproportionately rare; on the other hand, in a year when there are 13 million background checks, around 780,000 are denials, and more than 15,000 of these might be mistakes. At the same time, there is widespread underreporting from the states to the NICS center, and in Washington, different state officials would have conducted the NICS background checks for Snyder’s purchases and his carry permits, and these officials are statistically unlikely to have reported anything back to NICS. NICS would not have been on notice that background checks in Washington were yielding inconsistent answers on different occasions.
Besides a statutory provision for judicial review of NICS decisions (the type of lawsuit brought here), the FBI has two parallel-track administrative processes for those who believe they’ve received an erroneous denial on their NICS background check, the Voluntary Appeal File (VAF) application and a firearm purchase denial “challenge” (see also 28 C.F.R. § 25.10) For a VAF, the individual merely submits a release form to access their full criminal history, along with fingerprints and some other paperwork or authorization. After review of the VAF, the FBI may correct its own records and notify the dealer that it approves the sale. The FBI will also issue the VAF applicant a Unique Personal Identification Number (UPIN); NICS maintain information about the UPIN holder to prevent future erroneous denials or extended delays of a firearm transfer (the individual will still need to complete background checks for future purchases, but the UPIN should streamline the review and avoid erroneous denials, analogous to TSA pre-screening clearance). The purchase denial challenge is a classic administrative appeal, and itself makes two alternate procedures available to the wrongfully denied individual, under 28 C.F.R. § 25.10(c) and (d) respectively. The individual can start either with the FBI directly or with a state/local law enforcement agency in states where local law enforcement function as a type of bureaucratic middleman (technical term: “point-of-contact” or POC) for background checks, submits documentation to rebut the incorrect information in the original record archive that fed an inaccuracy into the NICS system, and then initiates a chain of inter-agency notifications that the correction has been made. At risk of oversimplifying, a person would use the VAF process to fix a recurring mistake, like being mixed up with someone else who has the same name in the same state. The administrative challenge process, on the other hand, is for fixing a specific incorrect record, such as a data entry error by local law enforcement that coded your one-time arrest under the wrong grade or type of offense (misdemeanor versus felony, class B versus class C), or where your conviction was reversed on appeal but the records do not reflect this.
Snyder filed both an administrative challenge and a VAF in May 2016, a few weeks after his second purchase denial, and included a copy of his concealed carry permit, showing that he had passed the NICS background check for the latter, and therefore should not have failed the NICS background check for his attempted gun purchases. The government confirmed receipt but informed him that they were currently processing VAF’s received in July 2015 – ten months before (news reports at the time indicated the FBI had simply stopped processing appeals). More than a year went by, and then Snyder checked on the status of his appeal in November 2017. The government responded that there was no decision on his appeal yet, and that they were then processing VAFs from November 2015 – in other words, they were now twenty-four months behind, instead of ten months behind. (According the FBI’s website, at the time of this writing, it is currently reviewing VAF cases from July 2018).
Snyder then filed his lawsuit in June 2018, and two months later, the federal agency notified his counsel that his firearm background check was in “delay status.” The notice explained that the original prohibitive information was resolved, but that it had uncovered another potentially prohibitive arrest lacking a final disposition – an arrest in 1972 for possession of stolen property. This meant that he was ineligible for the VAF process, but he could still submit evidence that the arrest had been expunged, or that his firearm rights had been restored by a court. The federal government made unsuccessful attempts to find out from local law enforcement what had been the outcome of the arrest in 1972; it received no answer. As mentioned above, the FBI has a procedure for challenging an erroneous denial of a firearm purchase, but there is no procedure for challenging an erroneous delay.
Under the administrative law doctrines of exhaustion of remedies and final agency action, this dichotomy is significant. Notwithstanding the statutory cause of action discussed below, normally an erroneously-denied firearm purchaser could not seek judicial review without first filing an administrative appeal of the denial, though if the agency will admit that it has ceased processing such appeals, this could come under the “futility” exception to the exhaustion requirement – perhaps. On the other hand, a “delayed” decision from NICS would not trigger the exhaustion requirement before judicial review, because there would be no process to exhaust; yet a “delayed” response from an agency would also normally not constitute a final agency action, which in turn would also preclude judicial review. If this seems a little circular, the statutory framework in this case confuses this analysis even further, because there appears to be an unusual statutory workaround to this problem. I say “appears,” because it turns out that the statutory workaround will often prove unsuccessful due to the federal-state jurisdictional interplay in the NICS system.
Snyder claims there must have been a misidentification because he had no history that would make him ineligible for a firearm purchase. Snyder’s basis for asking the court to order the government to order the completion of the uncompleted firearm transfers from 2013 and 2016 was that there was no conviction, and therefore no basis for a denial as a prohibited person. He also wanted the government to correct its own records. The government’s motion, on the other hand, pointed out that an indefinitely delayed status (longer than three business days) meant that a licensed dealer could already proceed with the sale (this rule is sometimes called the “Charleston loophole”), so there was no violation of his rights. In addition, the arrest records Snyder wants corrected were local law enforcement records, not federal NICS records, so the federal government had no power to make such as correction.