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Derek R. Fletcher, Esq.
Trial Lawyer • Consulting Services
FLETCHER LEGAL, PLLC
338 S. Sharon Amity Rd. # 421
Charlotte, NC 28211-2806
Tel (704) 747-7262 • Off (704) 380-0094
AVAILABLE BY APPOINTMENT
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Contents

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GUY WALKS INTO A BAR LOOKING TO BUY A GUN. Buyer approaches seller, a Federal Firearm Licensee (FFL), to purchase a firearm. Before Seller may legally accept payment, and transfer title to Buyer, he must conduct a government-ordered background check to ensure Buyer is eligible to own a gun. Buyer must complete ATF Form 4473, and submit to a background check using NICS.

The National Criminal Background Check System, or NICS, is a national database established and maintained by the Federal Bureau of Investigations (F.B.I.). Launched in 1998, and mandated by the Brady Handgun Prevention Act (Brady Act) of 1993, NICS established a quick, reliable, and uniform background check on prospective gun purchasers.

Before selling a firearm, licensed retailers must contact NICS online or by phone to initiate a background check. Once submitted, NICS personnel use the data gathered on ATF Form 4473 to conduct a background check on Buyer to ensure they do not have a disqualifying entry in the database.

NICS will provide Seller with one of three responses after conducting an initial search: “Proceed,” “Delayed,” or “Denied.” “Proceed” allows the firearm transfer: “Denied” prohibits sale, and if “Delayed” more than 3 days, Seller may legally transfer the firearm to Buyer, provided doing so doesn’t violate state law.

The overwhelming majority  of firearm background checks take just minutes to clear. From 2008 to 2014, the F.B.I. processed more than 51 million NICS transactions; only 556,496, or about 1 percent, were denied.

Denials usually occur when Buyer is subject to state or federal firearm bans. Felony convictions are the most common reason by NICS denial.

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Having a felony conviction, or a federal or state firearm ban, doesn’t mean you’ll never legally own a gun again. North Carolina law specifically creates a way to restore firearm rights by petitioning your local court.

That’s part of what I do: my name is Derek Fletcher, and I’m the managing attorney at FLETCHER LEGAL. We assist people exercising their Constitutional Rights, including Second Amendment Gun Rights. We go where we’re needed, all across the state. If I can ever be of service, shoot be a text or book an appointment for a video conference.

And remember: Serious cases require serious representation.

- D. FLETCHER

FEDERAL PROHIBITING CRITERIA

Events triggering federal firearm bans.
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Certain events trigger federal firearm bans, state firearm bans, or both simultaneously. These are known as Federal Prohibiting Criteria, and their occurrence automatically revokes the subject’s right to own a firearm, granted through the Second Amendment. Even when these events fail to permanently deprive rights, their mere existence, such as a pending felony case, will usually trigger a denial in NICS.

  •   Conviction in any court of a crime punishable by a term of imprisonment exceeding one year (felony conviction), or convicted of a state offense classified as a misdemeanor but punishable by a maximum term of imprisonment greater than two years. 18 U.S.C. § 922 (g)(1).
  • Adjudication of mental defectiveness by any court, or  involuntary committment to a mental institution. 18 U.S.C. § 922 (g)(4).

REACH OF NICS AND FEDERAL REGULATION

North Carolina is a point-of-contact state; exempts pistol purchase permittees and concealed carry licensees from time-of-sale checks.

Federal law, and thus NICS, only applies to federally licensed retailers; private sellers are exempt. Furthermore, Brady provided states a partial opt-out option, granting each the option of serving as “points-of-contact.” Point-of-contact states conduct background checks relying on state records in addition to federal resources.

North Carolina is a partial point-of-contact state: licensed retailers selling long rifles must conduct a federal NICS search. All North Carolina handgun sellers must verify a buyer’s valid pistol purchase permit or concealed carry license before transferring any handgun. No person may purchase or receive a handgun in North Carolina without a purchase permit or concealed carry license, N.C.G.S. § 14-402.

Federal law doesn’t require dealers to conduct NICS checks if a prospective buyer presents a valid, state-issued, purchase permit or a valid, state-issued concealed carry license. Thus, permit and license holders are exempt from federal background checks at the time of purchase.

To obtain a pistol purchase permit or concealed carry license, a prospective buyer must apply through the sheriff’s office in their county of residence. They must submit fingerprints, consent to a background check, and pay filing fees. Before issuance, the sheriff must be “fully satisfied” of applicant’s “good moral character,” that the applicant desires a handgun for protection, target shooting, collection, or hunting, and that the handgun transfer doesn’t violate North Carolina or federal law. Sheriffs make these determinations, and must provide written findings within 7 days, using:

NICS DENIALS

Challenging the FBI's criminal background checks using Voluntary Appeal Files (VAF) and NICS Challenges.

Since its launch in 1998, NICS has intercepted 1.7 million attempted gun transfers to disqualified persons. Error is extremely rare: a September, 2016 Department of Justice Audit found that NICS entries were accurate 99.8% of the time. These 1.7 million denials are composed of:

  • Felony or disqualifying misdemeanor convictions: 895,331 (52.66%).
  • Fugitive from justice: 194,254 (11.42%).
  • Unlawful user / abuser of controlled substances: 164,287 (9.66%).
  • Misdemeanor domestic violence convictions: 155,017 (9.11%).
  • State prohibitors: 97,179 (5.71%).
  • Currently under indictment (pending felony): 65,753 (3.86%).
  • Subject to Domestic Violence Protective Order (DVPO): 63,928 (3.76%).
  • Adjudicated mental health: 46,266 (2.72%).
  • Illegial / unlawful residency: 29,182 (1.71%).
  • Federally denied persons file: 6,367 (.374%).
  • Dishonorable discharge: 1,258 (.074%).
  • Renounced citizenship: 101 (.00594%).

Perhaps a better way to view this data is to look at the percentage of denials successfully appealed. Of the 61 million total transfers between 2012 and 2018, only 27,159 (.044%) were overturned on appeal. In other words, less than 4.5% of one percent of denied gun transfers are overturned because of error.

Mistakes do in fact happen: if a person believes they’ve been wrongfully denied by NICS, they should appeal. There are two mechanisms for contesting erroneous transfer denials: Challenges and Voluntary Appeal Files (VAF).

Persons wrongfully denied firearms transfers should begin the appeal process by challenging the denial. Only denials may be formally challenged, not delays (although frequent delays may constitute grounds to obtain a UPIN for smoother future purchases. Challenges provide the exact cause(s) of denial, as well as an online mechanism for error correction. Challenges may also be filed by mail: denied purchasers should file a request containing their complete name, address, NICS Transaction Number (NTN), or State Transaction Number (STN) to:

Federal Bureau of Investigations
Criminal Justice Information Services Division
NICS Section
Appeal Services Team, Module A-1
Post Office Box 4278
Clarksburg, WV 26302-4278
Fax (304) 625-0535

Voluntary Appeal Files (VAF) are another formal process designed to correct erroneous NICS entries. After challenging a transfer denial, incorrect entries should be corrected using the VAF process. The reasons a person may be denied from buying a gun are numerous, but the most common reasons are:

  • Stale misdemeanor convictions;
  • Subject has a name similiar to someone subject to firearm prohibition;
  • Subject has similiar criteria to a person subject to prohibition, such as the same address, birthday, or social security number.

When a person applies for VAF, NICS staff will research their unique case and provide a UPIN if there are no firearm prohibitions. Background checks will still be conducted in future firearm purchases, but UPIN’s may be used to speed up the process and avoid erroneous denials. To apply for a VAF, complete the following documents:

Submit these documents to:

FBI CJIS Division
NICS Section
INCS Functional Support Unit, Module D-1
P.O. Box 4278
Clarksburg, WV 26302-4278

Questions should be directed to: nics@fbi.gov

NORTH CAROLINA CITIZENSHIP RIGHTS

Certain rights are automatically revoked upon felony conviction and automatically reinstated upon sentence completion.

When a person pleads guilty to, or is found by a judge or jury to have committed a felony, an automatic process begins that revokes what are commonly called “Citizenship Rights.” Convicted felons are barred from:

When a person completes their felony sentence, most of their citizenship rights are automatically restored, pursuant to N.C.G.S. § 13-1. Before 1973, North Carolina law required people to either petition for rights restoration, wait a prescribed length of time, or both. Now, whenever a person completes their felony sentence, the court, or supervising agency (such as probation) enters an order, or files a certificate, evidencing sentence completion, and therefore rights restoration. Persons convicted in federal court, or out-of-state may file AOC-CR-926 or AOC-CR-919 with their local court clerk.

Firearm Rights not Automatically Restored

After a person completes their felony sentence, most of their citizenship rights are automatically restored under North Carolina law. However, the right to purchase, own, transport, possess, use, and handle a firearm in North Carolina, is not automatically restored. After felony conviction, a person is forever prohibited from exercising firearm rights indefinitely. These rights may only be restored through court order.

Felony convictions are not the only disqualifying event that may trigger a firearms ban. Federal law prohibits firearm transfers to people convicted of certain domestic violence misdemeanors. (18 U.S.C. 921(a)(33). Before pleading guilty to a misdemeanor triggering a federal firearm ban, North Carolina law requires that the court notify the defendant that a federal prohibition may be triggered. These persons should be provided a copy of AOC-CR-617. Persons subject to federal firearm bans may not purchase, obtain, or carry a firearm in North Carolina. (N.C.G.S. § 14-404(a)(1), N.C.G.S. § 14-415.12(b)(1), N.C.G.S. § 14-415.12(b)(86).

N.C.G.S. § 14-415.1 bans a person convicted of a felony from purchasing, owning, possessing, or having any firearms or weapons of mass destruction. Successful restoration of firearm rights removes the state law ban on purchasing rifles and handguns, as well as removing the concealed carry ban.(N.C.G.S. § 14-415.12(b)(3). Restoration of Firearm Rights is a distinct process, and differs from pardons and expungements.

Theoritically, there are several ways to remove the state law firearm ban. Expunging the underlying conviction appears to lift the state law ban without filing a Restoration Petition. 18 U.S.C. 921(a)(20) exempts expunged felony convictions from federal definitions triggering federal firearm bans (see also Wyoming ex rel. Crank vs. United States, 539 F.3d 1236 (10th Cir. 2008) holding state issued expungements must completely remove all effects of state law convictions to remove federal firearms ban). Pardons issued by the Governor likely have a similar effect, but constitute a legal grey area.

North Carolina Law Allows Firearm Rights Restored

N.C.G.S. § 14-415.4 creates a statutory process to petition for restoration of North Carolina firearm rights following completion of a felony sentence. If granted, the state issued firearms ban is removed from a person’s background (but they may have to later address the federal ban seperately). A person begins the firearm restoration process by filing a petition in their county of residence, and requesting a hearing before a District Court judge.

State law closely mirrors Federal Code: codified at N.C.G.S. § 14-404(c), North Carolina law enumerates eight statutory prohibitors precluding pistol purchase grants (see also N.C.G.S. § 14-415.12 for concealed carry license criteria). To petition for firearm rights restoration in North Carolina, N.C.G.S. § 14-415.4 requires that the Petitioner:

  • Was convicted of a single, non-violent felony, or if multiple convictions, that all convictions arose from the same event;
  • Has had citizenship rights restored (automatic in North Carolina) at least twenty (20) years prior to filing;
  • File Form AOC-CR-654 in the county where they reside;
  • Have been a resident of the county in which they file for at least one year immediately preceeding the filing of a petition;
  • Not be disqualified from firearm rights under some other state law;
  • Not a fugitive from justice;
  • Has no pending felony cases;
  • Not an unlawful user/abuser of alcohol, marijuana, or any controlled substances;
  • Has not been dishonorably discharged from any branch of the U.S. Armed Forces;
  • Does not have a Prayer for Judgment Continued entered in any North Carolina felony charges;
  • Have no other felony convictions, felony PJC’s, or misdemeanor “crime-of-violence” convictions;

A person meeting all eligibility requirements seeking to restore their firearm rights should petition for restoration immediately, or contact our office for assistance.

NORTH CAROLINA FIREARM RIGHTS

N.C.G.S. § 14-415.4, Eligibility, Filing a Petition for Firearm Rights Restoration, and Petitioner's burden.

To begin the process of restoring North Carolina firearm rights, an eligible person must file Form AOC-CR-654 in the District Court where they reside, and submit their fingerprints to the North Carolina State Bureau of Investigation (NC SBI). Submission of false information when petitioning for firearm rights restoration not only constitutes a Class I misdemeanor, but also carries a lifetime ban on ever petitioning for restoration ever again.

At the time of filing, Petitioner must include certified funds in the amount of Two Hundred Dollars ($200), and serve a copy on the local District Attorney’s Office. The D.A.’s Office must be provided at least four weeks to research Petitioner and his case, before conducting a hearing in District Court.

At the hearing, Petitioner bears the burden of proving they are eligible for relief by a preponderence of the evidence. Petitioner may do so by calling character witnesses, producing documents, or providing other helpful evidence to the court. Adversely, the District Attorney may call rebuttal witnesses or present adverse evidence to persuade the court to deny Petitioner’s request.

How to Win North Carolina Firearm Rights Restorations

To win his case, Petitioner must prove each of the following by a preponderance of the evidence:

  • Petitioner has been a continuous resident of the county where the Restoration Petition has been filed; their period of residency is at least one year long.
  • Petitioner has been convicted of a single, non-violent felony, or if multiple convictions, that they arose from the same transaction or event;
  • Petitioner’s Citizenship Rights have been restored at least Twenty (20) years;
  • Petitioner has submitted their fingerprints to NC SBI; and

If, following the hearing, the judge denies Petitioner’s request, the reasons for denial must be stated, and Petitioner may refile one year later. Depending on the stated reason, Petitioner’s best course of action may be to either give notice of appeal, or wait out the one year.

Should the judge agree with Petitioner and grant relief, the North Carolina state law ban prohibiting firearms is effectively removed. Firearm use or possession by Petitioner no longer constitutes a North Carolina crime. Petitioner should theoretically be able to walk into any firearms retailer, pass a NICS check, and leave with a gun. In practice, however, rarely is the case so easy.

THE STATE HAS BEEN WORKING HARD ON YOUR CONVICTION

The State has salaried, professional witnesses working hard toward proving your guilt. FLETCHER LEGAL conducts independent investigations in every case.

Don’t let another day pass without experienced legal representation. Message Attorney Fletcher today for a free case evaluation.

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STATE AND FEDERAL CONFLICTS

Can a North Carolina State Court compel Federal Regulators?

Once a North Carolina District Court judge orders a person’s firearm rights restored under N.C.G.S. § 14-415.4, the North Carolina firearm ban is removed, and a successful petitioner can theoretically buy a gun. They may explicitly obtain a pistol purchase permit. They may be granted a concealed carry permit. But the reinstatement of rights by the state doesn’t necessarily translate to federal restoration in all cases.

Even following a successful petition, a person may still be denied a firearm transfer by NICS, and the F.B.I. I’ve before found myself arguing with federal regulators to lift the firearms ban over a client who has successfully persuaded a North Carolina judge to restore their rights. I’ve heard federal regulators argue they aren’t subject to state court decisions; they make their own rules. Removing the federal firearms ban after successfully petitioning for North Carolina firearms restoration is sometimes tricky, and may require a professional assist you with your request.

At its enactment in 2011, the North Carolina General Assembly intended to create a mechanism for convicted felons to petition for, and be granted, restoration of their rights to own firearms. Section 6 of S.L. 2010-108 directed the North Carolina Attorney General to submit the proposed legislation to federal authorities, so they can review the laws and make recommendations. The purpose of solicing federal feedback was to ensure that successful state petitions would also remove federal bans, thus creating one process to restore one right.

18 U.S.C. § 921(a)(20)(B) provides that the federal ban on firearm possession by convicted felons does not apply if the persons civil rights have been restored under state law, unlcss firearm rights are specifically exempted from the restoration itself. In other words, state law firearm restorations must be unconditional; they must restore the same rights as everyone else has.

In Caron vs. United States, 524 U.S. 308 (1998), the United States Supreme Court held that in order to lift the federal ban, a state must completely restore petitioner’s rights under state law. If a successful petitioner’s firearm rights are restricted in any way, they remain subject to federal prohibition.

The original text of N.C.G.S. § 14-415.4 defined the term “firearm rights” in a broad manner, specifically excluding machine guns and similar weapons of mass destruction. Following Caron, the legislature amended the statute, expressly restored all rights to successful petitioners held by the general public, and theoritically removing state and federal conflicts resulting from Canon. To ensure even application, the law was made retroactive. Successful petitions under N.C.G.S. § 14-415.4 should remove both state and federal firearms bans, and allow a successful petitioner to legally buy a gun.

North Carolina felony convictions automatically remoke many citizenship rights, including the right to vote, the right to run for office, and the right to possess a firearm. Although many of these rights are automatically restored when a convicted felon completes their sentence, a person must successfully petition their local district court for restoration of their firearm rights.

To petition a North Carolina court for restoration of firearm rights, a person must meet all eligibility requirements, submit their fingerprints to the state SBI, and file a petition requesting a hearing. At the hearing, both sides may present evidence, and if the Petitioner loses, they must wait another year before filing again.

If successful, North Carolina Firearm Restoration Petitions should remove both state and federal bans. Thus, a successful petitioner should pass a NICS check, and legally purchase a gun. If a person is having difficulty removing the federal prohibition, they may need professional legal assistance convincing the F.B.I. to change the entry.

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If you or someone you know has questions restoring their firearm rights, or to begin the process of restoring your gun rights now, call FLETCHER LEGAL at 704-727-7262, shoot that number a text, hit us up on Facebook, or book an appointment now for your free case evaluation. Attorney Derek R. Fletcher has helped clients restore North Carolina firearm rights, appeal from pistol purchase denials, and challenge concealed carry decisions. We conduct independant investigations in every case we take, thus reducing denials, and doing everything we can to ensure a smooth hearing.

Get started now by booking an appointment online, or messaging us; exercise your Second Amendment rights by calling in “the Big Guns” at FLETCHER LEGAL.

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