Last month we reported that five individuals had undertaken a suit against the Federal Bureau of Investigation on the grounds that the agency erroneously denied their background check requests and refused to process their appeals. This week three additional individuals added their names to the suit after receiving letters from the Feds claiming that no appeals process exists to contest denied background checks involving NFA items.
“It’s not a lawful position. I don’t know what else to say. It’s just not lawful,” Stephen D. Stamboulieh, the attorney for the plaintiffs, told GunsAmerica. “The FBI is denying my appeal remedy, which is in and of itself a violation of my due process rights. You’re telling me I’m on a list, and you’re giving me no way to get off that list.”
Stamboulieh says he’s been contacted by over 100 individuals who have been waiting years for the FBI to process their background check appeals for Title I firearms (pistols, long guns, etc.). But some of these individuals, like plaintiff Kevin Franscisco Borquez, tried to purchase NFA Class III items (suppressors, short-barreled rifles, etc), and received a letter from the Feds stating that they have no way to appeal their erroneous background check.
Borquez was convicted of a felony in California more than a decade ago. In 2010 he requested that his felony charge be reduced to a misdemeanor, and he received a letter from the state reinstating his Second Amendment rights.
But when he moved to Wyoming and tried to purchase NFA Class III items, the FBI denied his background check request. Borquez attempted to appeal these denials but was advised by the FBI that NICS “does not process appeal requests for the NFA background checks.”
The problem is that, according to Stamboulieh and contrary to what the FBI implies, there isn’t a separate background check process for Title I and Class III items. The ATF approves the transfer of NFA items, but they use the FBI NICS database to do background on prospective owners. Stamboulieh knows this because even NFA items receive a NICS Transaction Number (NTN).
“It’s exactly the same thing,” Stamboulieh pointed out, referring to the background check process for Title I and Class III items. “Why are you giving me an NTN for both if they’re different?”
Stamboulieh argues that because the FBI does the same NICS check for both Title I firearms and NFA items, the same appeals process should be available for both item classes. He’s still waiting for clarification from the Feds, but on the surface, their position is untenable.
“The FBI has taken this absurd position that, ‘We’re not going to process this appeal because it’s not for a Title I firearm,’” he explained. “They say that for the NFA, it’s completely different. You don’t have a right to appeal it, so you’re basically SOL. And I think that’s just wrong.”
Individuals who are denied a Class III purchase based on a faulty background check have few options to restore their Second Amendment rights. Stamboulieh says he knows one man who contacted his gun-friendly Congressman, and his purchase was approved in a matter of days.
But for the majority of gun owners, legal action remains their only recourse. Stamboulieh says he can usually get the FBI to change their decision, but it will cost between $4,000 and $10,000.
If you’re wondering why gun-rights organizations haven’t stepped in, Stamboulieh says the answer is simple: there’s no money in it.
“The way that 18 USC 925A is written, it only provides attorney’s fees if you’re the prevailing party,” he said. “So, what the government does is, as soon as they get one of these complaints, they voluntarily change their position, and they clear your guy. That automatically gets [the Feds] out of paying for attorney’s fees.”
Stamboulieh has developed legislation that would give the FBI 30-60 days to process an appeal, but the Congressman who requested the law has yet to introduce it. In the meantime, Stamboulieh expects to hear from more gun owners who have had their Constitutional rights stripped due to bureaucratic incompetence.
“I don’t even know what to say to that that’s not profane,” he said.