ATF Form 4473 and the Prohibited Persons List
Federal Firearms Licensees are expected to understand an enormous amount of legal information, not the least of which is how to properly complete and process ATF Form 4473 to ensure that the proposed firearms transferee is not prohibited from making the purchase. A “prohibited person” is defined by the Gun Control Act, generally in relationship to a formal legal event with protected rights of civil and/or criminal due process, among others.
So did we realize that when an NICS check comes back as “delay” or “deny,” the reason could relate to the buyer’s inclusion on the FBI Terrorist Watchlist?
The question came up when reviewing the various legislation signed into law on August 8, 2013 in New Jersey, among which is NJ Assembly Bill 3687 (2R), which became effective immediately upon execution. We’ve added it to our Orchid Advisors on-line research library for your review.
Under an existing provision that “No handgun purchase permit or firearms purchaser identification card shall be issued,” a new, ninth category was added, as follows: “(9) To any person named on the consolidated Terrorist Watchlist maintained by Terrorist Screening Center administered by the Federal Bureau of Investigation.” This reference was also added to the existing fifth category, giving discretion to the chief of police to consider “…whether a criminal history background check revealed that the applicant was named on the consolidated Terrorist Watchlist maintained by the Terrorist Screening Center administered by the Federal Bureau of Investigation…”
To create our Advisory discussion, let’s take one step back from the NJ statutory amendments and refresh on the federal “Prohibited Persons” list found in the federal Gun Control Act (18 U.S.C. §922). You may best know these categories as “Yes/No” questions under #11 on ATF Form 4473, including questions whether the applicant has ever been convicted of a felony or other crime for which a judge could have imprisoned the defendant for more than one year, even if the sentence imposed was shorter.
For each one of the federal categories of prohibited persons, there is or was an associated formal proceeding, several of which are public proceedings and/or records. Each category has some connection to the U.S. Constitution, and several include at least one automatic right of appeal to a higher court.
Whether a person is or is not on the FBI Terrorist Watchlist is not among the categories of persons prohibited from buying a firearm under the federal Gun Control Act, nor is it a question on ATF Form 4473.
FBI Terrorist Screening Center (“TSC”), which began operations on September 1, 2003, was established by Homeland Security Presidential Directive 6. The TSC website defines its vision “To be the global authority for watchlisting and identifying known and suspected terrorists.” It defines the Terrorist Watchlist as “a single database of identifying information about those known or reasonably suspected of being involved in terrorist activity.” It states that the database specifically excludes any criminal history of a person on the list.
As per the FBI website, “The TSC cannot reveal whether a particular person is in the TSDB.” The TSC does not accept redress inquiries from individual persons, recommending that an individual should work through questions with the relevant screening agency.
So, how does the Terrorist Watchlist come into play in this new law in NJ?
The answer is not entirely clear.
In formal testimony given by the Criminal Justice Information Services of the FBI to the Senate Committee on Homeland Security and Governmental Affairs on May 5, 2010. It turns out that the FBI NICS background check includes the TSC database, or, the Terrorist Watchlist.
The 2010 testimony details that, as with any of the known prohibitions in the federal Gun Control Act, the FFL who submits the ATF Form 4473 to NICS for a background check will not be informed of the reason for a “delay” or “deny.” The 2010 testimony states “Since this process was initiated in 2004, approximately 1,200(+) such encounters have occurred and in approximately 90 percent of those, no prohibiting information was found to deny the transfer.”
The 2010 testimony states that if there is a pending investigation of a person named on the Terrorist Watchlist, the information on the proposed firearms purchase the case agent is immediately notified. If there is no pending investigation, one will be opened based upon the attempted purchase. The attempted purchase, along with other factors, can “lead to enhanced investigative methods, such as surveillance.”
While the new law in NJ will disqualify a person on the Terrorist Watchlist form obtaining a firearms identification card or a permit to purchase a handgun, it is unclear how NJ will come into this confidential federal information. Also worth considering, the new law did not amend the NJ application process to include a question of the applicant whether they are known to be on the Terrorist Watchlist. And, the NJ law continues to rely upon the self-surrender of a firearms identification card within five days of a person becoming disqualified, including for being named on the Terrorist Watchlist.
It’s interesting to consider the role of the FFL in any of this. We should be generally familiar with the NICS process relative to the ATF Form 4473, the response to the background check, the lack of information accompanying a delay or denial, and our lack of ability to inquire into the reason a submitted form is delayed or denied. What we perhaps had not considered was that requesting the NICS background check could be a triggering event to further investigation by the FBI because the person is named on the Terrorist Watchlist.
Additional Information On ATF 4473 Forms and ATF e4473