New NICS Case: Snyder v. United States, Part II

A previous post explained how Steven Leroy Snyder failed his firearm purchase background checks on three occasions, but he passed the same background check when he renewed his concealed carry permit around the same time. He pursued both administrative remedies with the FBI to challenge the gun purchase denials and correct whatever inaccurate information was in the FBI’s databases regarding him. Frustrated by the lack of progress on this front, Snyder sought relief in federal court.  Snyder brought his lawsuit under 18 U.S.C. § 925A, which provides that an otherwise lawful purchaser denied a firearm due to an error in the background check system “may bring an action against the State or political subdivision responsible for providing the erroneous information, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that the erroneous information be corrected or that the transfer be approved, as the case may be.”  This avenue for judicial redress runs as another parallel track to the VAF process and the administrative procedure for challenging a denial, and Snyder availed himself of all three.

The judicial process under § 925A, however, raises the complicated relationship between state and federal governments in the background check bureaucracy.  According to this statute and § 922(g), federal firearm prohibitions for criminal convictions depend on the definition of “conviction” in the jurisdiction where the criminal proceedings occurred – in this case, Washington State.  The relevant Washington statute, in turn, defines “conviction” as including not only guilty verdicts and pleas, but also “includes a dismissal entered after a period of probation, suspension or deferral of sentence.”  On the other hand, a subsequent pardon removes the conviction.  For purposes of firearm prohibition, the same Washington statute says, “Where no record of the court’s disposition of the charges can be found, there shall be a rebuttable presumption that the person was not convicted of the charge,” but this is not binding on the federal government.

Federal regulations instruct those wishing to correct inaccurate records in the NICS system (that result in a firearm purchase denial) to first petition the FBI, and if the FBI cannot resolve the issue internally, “[t]he individual may then apply for correction of the record directly to the agency from which it originated.”  An analogous state law procedure is available under Washington statutes to correct inaccuracies in criminal records, but Snyder did not pursue this route.  This is a technical aspect of administrative law that can be bewildering to nonlawyers: an agency in one division of government (in this case, the federal executive branch) may have processes that depend on information from another level or division of government (like local law enforcement), but the former may have no power to correct errors in the information supplied by the latter.

Snyder also asked for an order that the government issue an affirmative approval on his previously delayed background checks – but the court observed that under 28 C.F.R. § 25.6(c)(1)(iv)(B), the dealers were already free to complete the sale, and had been free as of three days after the “delayed” response on the background check. This point occasions one of the courts two references to the Second Amendment: “There is no showing that the United States violated his second amendment rights by issuing the ‘delayed’ response” - given that he could have purchased the firearms already.  Of course, a few years have elapsed – it is possible that the specific guns Snyder wanted to buy are no longer available from those dealers, or that those dealers are out of business.

Finally, Snyder wanted the court to order the issuance of a UPIN to streamline future gun purchases.  While the VAF process normally offers this, Snyder was ineligible for a UPIN under the VAF procedure because of the local (county) arrest record from 1972; but UPINs are not available as a judicial remedy under 18 U.S.C. § 925A.  Snyder lost, but he could start the process anew by trying to correct his local criminal records in Washington state, to clear up the 1972 arrest record.  Then, he could start over with a new VAF application, and wait a year or so for the FBI to process it.  Legally, the court made the correct decision, though Snyder’s frustration with the bureaucratic errors and the government’s inability (legal incapacity) to correct the errors is understandable.  His state now has universal background checks, meaning that even if Snyder were to purchase a used firearm from a private seller (a neighbor or acquaintance), he and the seller would need to complete the transaction through a licensed dealer, who could conduct a NICS background check on the purchase.

The most mysterious part of this case is that Snyder passed a NICS background check (twice) to obtain and renew his concealed carry license – it is hard to explain the discrepancy.  One explanation might be different examiners at the FBI processing his background checks at different times – perhaps they would reach different conclusions.  It is also conceivable, though I have never seen any documentation of this, that NICS examiners take a more lenient approach in background checks for concealed carry permits than they do for firearm purchases.  A third explanation, specific to Snyder’s case, would be that it was simply a matter of timing: a literal parsing of the responses to him from the FBI indicate that some inaccurate prohibiting information on file in 2013 and 2016 resulted in those delays and denial, and perhaps his appeal and VAF application, or his 2018 lawsuit, prompted the NICS personnel to correct that information, but also to uncover the previously-unknown 1972 arrest record, which was the basis of his 2018 VAF denial and his new “delayed” status regarding the 2013 and 2016 purchase applications.  A VAF application allows the NICS staff to proactively search for criminal records regarding the applicant, whereas the normal NICS background check relies entirely on information already submitted to and stored in one of three databases.  Snyder’s 2017 renewal background check might have fallen sometime between the clearing of the previous inaccurate information from the NICS database, and the new discovery by NICS of the 1972 arrest record from Washington; and his original carry license would have been five years earlier, in 2012, and may have predated the full implementation of the state’s current system of checking with NICS (the Washington concealed carry statute has been amended repeatedly in the last fifteen years).  It is also possible that the local sheriff’s office staff processing his concealed carry permit/renewal simply approved his permit despite a “delayed” response from NICS.   At least one information site states that Washington’s concealed carry background checks do not “qualify” as NICS background checks, though the state statute requires a NICS check.  In half the states, however, a concealed carry permit allows the permit holder to skip the NICS background check when making gun purchases from a licensed dealer.

As a side note, NICS background checks numbers are the source (proxy) for most estimates of annual or monthly nationwide new gun purchases, and surges in gun sales are a common talking point in firearm policy discussions.  This case illustrates a problem with these numbers – many of the NICS background checks are in fact for concealed carry permit applications or permit renewals, not new gun sales, as explained here and here.  In Snyder’s case, two NICS checks would have been for his concealed carry permit and renewal, three for his attempted gun purchases, and at least two NICS inquiries were for his VAF application and status check.