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Zero Tolerance Protection: Firearm Transfers to Prohibited Persons

Written by Orchid

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August 16, 2022

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White text atop black background next to grayscale photo of President Joe Biden

When President Joe Biden announced a comprehensive strategy to combat gun violence last year, the administration identified the flow of firearms used to commit crime as the root cause. To reduce such crime, the strategy would implement a zero tolerance policy for “willful” violations by FFLs in an attempt to hold “rogue firearm dealers” accountable and keep guns out of the wrong hands.

As identified by both the administration and the ATF, one of the most egregious willful violations is transferring a firearm into the wrong hands, often referred to as a prohibited person.

Prohibited Persons

Under the Gun Control Act, the following categories of individuals, with exceptions, may not ship, transport, receive, or possess firearms or ammunition as prohibited persons:

Convicted Felons
Persons who have been convicted of a felony in any federal, including a general court-martial, state or local court, or any other crime, punishable by imprisonment exceeding one (1) year.

Exceptions:

  • Those under indictment for a crime punishable by imprisonment exceeding one (1) year may continue to lawfully possess firearms and ammunition obtained prior to the indictment until the conviction becomes final.
  • Those convicted of any federal or state offense pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices
  • Those convicted of a state misdemeanor punishable by imprisonment of two (2) years or less.
  • Those following conviction of a felony or other crime for which the judge could have imprisoned the person for more than one (1) year who have (a) received a pardon, an expungement or set aside of the conviction, or have lost and regained civil rights in the jurisdiction in which the conviction occurred and (b) the law of the convicting jurisdiction does not prohibit the person from receiving or possessing firearms.

Fugitives from Justice
Persons who have fled from any state to avoid prosecution for a felony or misdemeanor, or have left the state to avoid giving testimony in any criminal proceeding. Also includes persons with pending misdemeanor or felony charges who have left the state of prosecution.

Users of Controlled Substances

Persons who are unlawful users of or addicted to marijuana or any depressant, stimulant or narcotic drug, or any other controlled substance.

The use and possession of marijuana remains unlawful under federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in a person’s state of residency.

Adjudicated as a Mental Defective
Persons, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease, determined by a court, board, commission, or other lawful authority to be a danger to themselves or to others, or lack the mental capacity to contract or manage their own affairs. Also includes a finding of insanity by a court in a criminal case, and persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility.

Committed to a Mental Institution
Persons formally committed to a mental institution by a court, board, commission, or other lawful authority. Also includes involuntary commitment to a mental institution, commitment for mental defectiveness or mental illness, and commitments for other reasons, such as for drug use.

Exceptions:

  • Persons voluntarily admitted to a mental institution or in a mental institution for observation.
  • Persons adjudicated as a mental defective or committed to a mental institution (a) whose adjudication or commitment was set aside or expunged, (b) have been fully released or discharged from all mandatory treatment, supervision, or monitoring, (c) found to no longer suffer from the mental health condition that served as the basis of the initial adjudication/commitment (d) adjudicated or committed without an opportunity for a hearing, or (e) was granted relief pursuant to a qualified mental health relief from disabilities program

Dishonorably Discharged
Persons discharged under dishonorable conditions, including separation from U.S. armed forces resulting from a dishonorable discharge or dismissal adjudged by a general court-martial.

Qualifying Restraining Orders
Persons subject to a court order, including a Military Protection Order (MPO) issued by a military judge or magistrate, restraining such persons from harassing, stalking, or threatening a child, intimate partner or child of such partner.

Persons must have received actual notice of and had an opportunity to participate in hearings and be restrained from engaging in conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. Restraining orders must also include a finding that such person represents a credible threat to the physical safety of such intimate partner or child, or explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.

An “intimate partner” is defined as a current or former spouse, parent of a child, or an individual who cohabitates or has cohabitated with a person.

Illegal Aliens
Persons admitted to the U.S. under a nonimmigrant visa, generally including foreign tourists, students, business travelers and temporary workers who enter the U.S. for fixed periods of time.

Exceptions:

  • Aliens admitted for lawful hunting or sporting purposes, or are in possession of a lawfully issues U.S. hunting license or permit.
  • Official representatives of a foreign government accredited to the U.S. government or the government’s mission to an international organization having its headquarters in the U.S., or en route to or from another country to which that alienis accredited.
  • Officials of a foreign government or distinguished foreign visitors designated by the U.S. Department of State.
  • Foreign law enforcement officers of a friendly foreign government on official law enforcement business in the U.S.
  • Aliens with an approved waiver by the Attorney General.

Renounced U.S. Citizenship
Persons who have renounced their U.S. citizenship. A person has renounced their U.S. citizenship if done so before a diplomatic or consular officer of the U.S. in a foreign state, or before an officer designated by the Attorney General when the U.S. is in a state of war.

Exceptions:

  • Persons whose renunciation of U.S. citizenship has been reversed.

Convicted of Domestic Violence Misdemeanor
Currently, persons convicted of a misdemeanor under federal, state or tribal law that has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a (a) current or former spouse, (b) parent or guardian of the victim, (c) person with whom the victim shares a child in common, (d) person who is cohabitating with or has cohabited with the victim as a spouse, parent, or guardian, or (e) by a person similarly situated to a spouse, parent, or guardian of the victim.

Also includes current or former military members who have been convicted of a violation of the Uniform Code of Military Justice that included, as an element, the use of force against a person.

Exceptions:

  • A provision of the recently passed ‘Bipartisan Safer Communities Act,’ persons with not more than one (1) conviction of a misdemeanor crime of domestic violence against an individual in a dating relationship, and not otherwise prohibited, shall not be disqualified from shipping, transport, possession, receipt, or purchase of a firearm if five (5) years have elapsed from the later of the judgment of conviction or the completion of the person’s custodial or supervisory sentence, and the person has not subsequently been convicted of another such offense or any other offense that would disqualify the person.

ATF Form 4473

Completed as part of every FFL firearm transaction, the ATF Form 4473 asks prospective purchasers/transferers to answer a series of yes or no questions relating to prohibited persons. All part of Question 21, sub-questions 21.b–21.l each correspond to the aforementioned list of prohibited persons. Answering ‘yes’ to any is an automatic disqualification and denial of the firearm transaction.

Modern electronic bound book/e4473 software should alert dealers of such incorrect responses, however, it is ultimately the responsibility of FFLs to prevent transferring firearms to prohibited persons. Doing so is considered a willful violation and grounds for license revocation.

Persons subject to or who have received relief from any exceptions should answer ‘no’ to applicable questions.

Orchid Zero Tolerance Protection

At Orchid, our team of operations, technology and legal professionals understand the risks of today’s firearm businesses. For over a decade, we’ve worked with FFLs big and small to implement leading compliance best practices and software solutions to eliminate violations and protect licenses from revocation.

As we continue our Zero Tolerance Protection series, we’ll share our expertise and experience in proactive compliance as we look closer at Biden’s policy and its impact on the firearms industry, review how to avoid and correct violations, and suggest ways to protect your FFL from the risk of revocation. Next, we’ll go beyond prohibited persons to cover other individuals dealers should avoid selling firearms to.

In the meantime, contact us today to schedule your in-person or remote mock ATF inspection, get started with leading compliance software, and enroll in an attorney-backed FFL Protection Plan. One phone call or email could protect your FFL from a zero tolerance revocation.

Protect Your FFL Today

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