Leak Shows People Being Added to Prohibited List Without Due Process
Article first appeared on Ammoland.com
WASHINGTON, D.C. –-(Ammoland.com)-Can you be added to the National Instant Criminal Background Check System (NICS) “Prohibited” list without being convicted of a crime? According to leaked documents received by AmmoLand News, the answer appears to be “yes.”
The document in question is called “Guidance for Requesting a Submission of the NICS Indices Unlawful User/Addicted of a Controlled Substance Files.” It lets law enforcement officials add suspects to the prohibited list even if the subject hasn’t been convicted of a drug charge. Most gun owners are not aware that they can lose their gun rights without a court convicting them of a drug crime. This expanded power brings up a concern that the ability to add a suspect to the NICS Indices violates a person’s right to due process.
The NICS Indices is a list of people prohibited by the FBI from purchasing a gun.
When a Federal Firearms License holder (FFL) runs a NICS background check on a gun buyer, the system runs the purchaser’s name against the NICS Indices. If the system comes back with a positive hit, the FBI’s system will deny the sale of the firearm. No other information is supplied to the FFL about the denial.
The form lets law enforcement add someone to the NICS Indices if the subject fails a drug test. The reporting officer doesn’t have to file charges against the person who fails the drug test. Many positive drug tests are false. In almost all cases, the person is not notified that the law enforcement agency has added them to the NICS Indices.
The form also allows Law Enforcement to add a suspect to the NICS Indices if they claim they have found the person in possession of drugs regardless of state law. That means that a police officer finds someone in possession of a drug legal in a state, the officer can fill out the form and have the person added to the NICS Indices. More and more states have legalized marijuana, but the drug remains illegal on the federal level. An officer could find a person with marijuana and let them go because they are prohibited by state law from arresting them. The officer still could report them to the FBI and have their firearms rights revoked.
The most disturbing part of the form is that law enforcement can add someone to the list by claiming the person admitted to using drugs. The person doesn’t have to be arrested or fail a drug test. The officer can just claim the person said they had used drugs within the last year. A person who admits to trying marijuana eleven months ago will lose their gun rights by a cop adding them to the NICS Indices.
The biggest issue is that law enforcement could mark someone as an unlawful user of drugs without their knowledge. Lying on a 4473 form is a felony. The person who tried marijuana once 11 months ago might consider themselves drug-free, but the FBI would say they are a drug user since they have tried a drug within the last year. If a law enforcement officer reports them to the FBI, the same officer could arrest the person and charge them with a felony that could land them in prison.
The form also lets law enforcement add a person to the NICS Indies for mental health reasons. These reasons could be that law enforcement has committed someone involuntarily to a mental health facility or a court system adjudicating as mentally defective.
AmmoLand News obtained the form from an inside source that has chosen to remain anonymous.
About John Crump
John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.