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I have been following this story for a while. The below information was gathered by me from court transcripts of Silvester v. Harris
When purchasing your second firearm you have to wonder, why am I waiting 10 days to cool off? You know you own one or many firearms and you ponder the silliness of waiting to take home property you currently now own. Sometimes you might find yourself standing at the gun store counter with CHL (concealed handgun license) in pocket and loaded concealed handgun hidden on your waist. The clerk then tells you…”Ok all done I will see you in 10 days to pick up your new gun”.
The California Department of Justice calls it a 10 day waiting period. It was originally 15 days when it was signed into law but through computerization and efficiencies at the Department of Justice this time was reduced to a 10 day wait. It is currently officially 10-24 hour periods.
Those who have previously had a background check ran on themselves, currently own one or more firearms, or have submitted fingerprints to the DOJ for a COE (Certificates of Eligibility) or have CCW licenses issued through their local Sheriff department following a lengthy interview, fingerprint live scan, 8 hours or more of classroom including gun qualification, are still subjected to burdensome and often costly second waiting periods. Imagine if you wish to purchase constitutionally protected set of commemorative firearms you discover while on vacation in southern California. You know if you ship them home your local dealer will charge you higher than usual fees because you didn’t buy them from him. You know if you buy it from the out of town dealer you will need to make another trip in 10+ days pick them up after you cool off. Hopefully your life will allow you this time because if you leave them there over 30 days you will have to start the process all over again. Even if what you want is at your local gun store, it can often be burdensome to have to return twice for a single transaction of property you now legally own.
Currently the 2nd. Amendment foundation together with the Calguns Foundation (not to be confused with calguns.net) brought forth in 2011 a lawsuit (Silvester v. Harris) to overturn a second waiting period. Their position is that the DOJ are hardworking law enforcement officials. They are quite diligent and competent in their efforts to keep prohibited people from getting firearms, their position is that when it comes to law-abiding people who by definition are people who already have firearms know to the state of California, people who have a COE issued by the DOJ and/or people who have a license to carry a concealed firearm are by definition law-abiding people, and who already are known to the State of California to be law-abiding people, two of those groups the COE holders and the CCW holders also have submitted live scan including full 10 finger fingerprints to the DOJ in order to obtain those permits or certificates, so they have unique identifiers that are within the California computer database. Since the DOJ has my unique identifier there is no reason I cannot be immediately approved or denied at the point of sale. This is what the suit hopes to prove to the court.
Upon reading court documents including disposition transcripts I found it very interesting the number of databases used to acquire eligibility. It was a sort of peek behind the curtain of what is done once your DROS is submitted to the DOJ. I had little to no knowledge of the fact that so many separate sources needed to be checked either electronically or manually in order to approve or deny a person. Some people are instantly approved however still must wait 10 days to pick up their property.
Let me begin by stating I am not a pro background check guy. I do not believe a background check is constitutionally protected. If a private company chooses to require a background as a condition to do business with them then fine. However I do not approve of government agencies doing the same to purchase a firearm that is constitutionally protected by the Bill of Rights. We as Americans are all born with this right and should not need to ask permission to exercise that right. Shall not be infringed means exactly what it says. The argument of who does and doesn’t have access to guns is a great debate that I enjoy discussing it frequently with friends, however it is not the basis for this article. In this article I will stick to what is currently being enforced in California and what we as gun owners and the DOJ goes through to approve or deny an individual.
Assistant Bureau Chief Steve Buford currently works for the BoF (Bureau of Firearms) a department ran by the DOJ. The BoF is responsible for the administering and enforcing of the 10 day wait. According to Steve Buford there are two justifications for the waiting period. One is a cooling off period and the other gives the department time to review the records of individuals that are purchasing firearms and enough time to notify a dealer if a buyer is prohibited. Generally a background check involves verifying the identity or the person, verify whether the gun is listed lost or stolen, then from there determine the eligibility of the purchaser to own or possess a firearm.
When Steve Buford started at the Bof in 1991 he was responsible for developing a process that would include long guns into the background check process, including other prohibited categories in the process. Prior to 1991 the only thing the BOF looked at, was the buyer ever convicted of a felony? Beginning January 1991 as part of the implementation of AB 497 by Assemblyman Connelly, the BoF is now required to add other categories incorporated into the background check system. This included violent misdemeanors, metal patients, violent juveniles, wants, warrants, and restraining orders. In 1996 the process was re-engineered to reduce the time from 15 days down to 10 days. The process was changed from a quadruplicate form that was mailed or phoned in to an electronic system to automate a portion of it. The electronic system developed in 1996 for the BOF was by MCI which then became Verizon Wireless. Verizon after 10+ years with the BoF decided they wanted out of their government business contracts and informed the BoF that they would either need to source the job to another company or bring it in house. The BoF then decided to bring the DROS process in house and built an entirely new system that debuted January 1st 2014 which includes long gun registration.
So what happens when the DROS (Dealer record of sale) is transmitted electronically to the Department of Justice Bureau of Firearms and then presents itself to one of the dozens of CIS2 agents (Criminal Identification Specialist II) there to process the information? The first thing is to combine the purchasers name and date of birth with the DMV (Department of Motor Vehicles) to verify the identity of the applicant and any driver’s license number assigned to purchaser. Unpaid fines and tickets are discovered at this point. Unpaid fines can prohibit the purchaser. If the purchaser passes DMV and their identity is valid on to the next step.
The second database to hit is the AFS system. AFS stands for Automated Firearm Systems. The AFS is the system that stores every DROS (Dealer Record of Sale) for each dealer. It is a system that simply stores a record of each dealer transaction. The AFS does also store assault weapon registrations that were mandated in 1989 and continued on and off through 2005. There has not been open registration since the 50BMG registration closed in 2005. The other records that are stored in the AFS are Concealed Weapons license holders. The AFS stores lost or stolen firearm identification information. Penal Code Section 11106 requires the Attorney General to maintain a database to return lost or stolen firearms. As part of the DROS process firearms that are in the system and being transferred can be rejected if found to be lost or stolen. Local authorities then are notified so an officer can be dispatched to verify the guns identification and also contact the reporting agency to verify the entry is still valid and active. Then if found to be the active gun listed in the AFS system an officer can take it and store it as evidence of a crime or return it if possible. The rightful owner is then usually notified at this point. Included also in the AFS system are voluntary firearm reports submitted by individuals. This may include those that move into the state and submit their firearm information to the BoF or family members that submit inter familial transfer reports. It may also include reports that folks take possession of a firearm via operation of law. Also reports taken in by curio and relic collectors. There are handgun records in the AFS that go back to the early 1900’s. While incomplete some firearm information may have been stored if used in a crime or turned over to authorities who logged it at some point.
Next group of databases to hit is the prohibited databases. These databases are there to determine the purchaser valid status as a non-prohibited person. It includes:
The California State ACHS database. This database stands for Automated Criminal History System. It contains information reported to the department by state-wide criminal justice agencies. It is a State operated database that includes the criminal history of persons submitted to it. CIS agents look for felony convictions, violent misdemeanors like misdemeanor domestic violence, and other offenses that would prohibit the purchaser.
Next State database is the CARPOS. (California Restraining Order and Protective Order System) This is where domestic violence restraining orders and protective orders are logged. CIS agents are looking for misdemeanor domestic violence and or other prohibitive protective orders that would force the DROS to be rejected.
Next is the WPS (Wanted Person System). Anyone who committed a felony offense and is wanted would be a prohibited person. Anyone been held for indictment and they’re wanted are also potentially prohibited under state law. This is system would force the DROS to be rejected.
Next is MHFPS (Mental Health Firearms Prohibition System). This database contains mental health records as well as records of individuals that are 707(b) Welfare and Institutions Code, - prohibited juveniles. Mental health records are searched because people that have been involuntarily admitted to a mental health facility under Welfare and Institutions Code Section 5150, 5152, 5250, or 5350 are prohibited for a period of five years from owning and possessing for a period of 5 years as well as people that have been reported by any doctor as a danger to themselves or others. Clinically insane people (Section 1026), People incompetent to stand trial (Section 1370), and people that have been identified as gravely disabled (Section 5300).
Next is the CFIS (Consolidated Firearms Information System). This database looks to verify that the person has not been previously denied a firearm or that a DROS report has not been delayed or denied. If delayed or denied a CIS agent will look further to verify that any previous restrictions have not been cleared up to verify any previous prohibition is not still active.
APPS (Armed Prohibited Persons System). Once non-prohibited gun owners that are now prohibited and are listed still in possession of their once legally owned firearm.
That concludes state operated databases. Now a look at some federally operated databases.
First up is the NICS (National Instant Criminal History Check System) NICS is an umbrella of databases. It combines many databases together to assist in investigations for various federal agencies nationwide. This database stores Military dishonorable discharges, any citizen that renounces their citizenship. There are other people that have made Secret Service files, people that have made threats against the President are also listed in the NICS database.
One Federal database that is checked is III (triple I) (Interstate Identification Index). Triple I Contains criminal history records from states that participate and share records electronically with the FBI (Federal Bureau of Investigations). California and other States submit records to Triple I. This database is checked because California State Law states that if convicted of a felony in any other state you would also be prohibited in California from owning a firearm.
Next is NCIC (National Criminal Information Center) this one stores federal level warrants, federal level restraining orders, and stolen gun information.
Next is VICTOG (Violent gang and terrorist files). (Possibly renamed something today, however same data….different name). This holds gang and terrorist information.
Finally is the ICE (Immigration, Customs, and Enforcement). This helps BoF CIS agents identify illegal and unlawful aliens.
There is really no purpose to all this information other than I always wondered what happened to my information when I buy a gun. Well…. Now you know.
Previously unknown facts I recently learned.
In January 2014 there were 64,312 DROS applications
In January 2014 there were 122 thirty day rejects
In January 2014 there were 44 misdemeanor violence denials
In January 2014 there were 30 Mental Health rejects.
In January 2014 there were 11 violent juvenile denials.
In 2013 there were 960,179 DROS transactions
In 2013 there were 2,814 30 day rejects
In 2013 there were 926 violent misdemeanor denials.
In 2013 there were 802 mentally disabled applicants that were rejected a firearm.
In 2013 there were 329 violent juveniles where will inside their 5 year prohibition when trying to purchase a firearm.
In 2012 there were 817,748 DROS transition
In 2003 there were 290,000 DROS transitions. Lowest number since recording electronically began.
None of the reject numbers includes any DMV rejects.
On August 25th 2014 Senior Judge Anthony Ishii ruled the 10-day waiting period violated an individual’s right to immediately take possession of a firearm if the purchaser possesses a valid CCW or COE.
In the ruling the Judge stated “The Court emphasizes that it is expressing no opinion on the constitutionality of the 10-day waiting period in general or as applied to first time California firearms purchasers.”
What does this mean immediately? We will just have to wait and see.