Background Checks

Discussion in 'GA Laws and Politics' started by Malum Prohibitum, Feb 2, 2007.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I would like to set forth my not so humble opinion regarding what the law states about background checks for firearms license applicants in Georgia, and then solicit your comments upon what I say.

    O.C.G.A. 16-11-129 governs the issuance of firearms licenses. The actual issuance of licenses is controlled by the first few subsections, (a) through (d). For purposes of examining the issue of background checks, and whether they may hold up the issuance of an applicant's license, one need only examine subsection (d), which addresses the background checks to be conducted and the time for issuance.

    (a) provides generally how one applies and the form to be used.

    (b) governs the factors that render an applicant ineligible. There are seven of them. That is all.

    (c) governs the fingerprinting.

    (d) has already been addressed, and now we shall turn to it in more detail.

    But first, I wish to give the appropriate, probate judge approved, disclaimer, which is posted here for your convenience.

    So, with the disclaimer firmly in mind, it is time to read the statute! If you wish to follow along, I provide here a link to HB 1032, which is the most recent version of 16-11-129(a) through (d).

    Look at (d). It has four subparts. These subparts govern the investigation of the firearms license applicant. I will review them in the order the statute provides. There are three background checks to be performed.

    (1) The first sub-subsection mandates a fingerprint based background check. This is fingerprint based. It is a check of state (GBI, i.e., GCIC) and national, (FBI, i.e., NCIC) records. This is really one check performed by the local law enforcement agency that "captures" your fingerprints (hopefully electronically) and sends them to GCIC, which in turn forwards them to NCIC.

    A few comments upon this sub-subsection are in order. First, note what it says about the probate judge. Does it say anything about the probate judge conducting a check of GCIC records? No. It quite clearly states that the judge is to direct the law enforcement agency to do that! Second, does this subsection require a report of any kind to the probate judge? Read it carefully before you answer.

    No. It quite clearly states that the probate judge is to "direct" the sheriff to return an appropriate report to the judge. It says nothing about whether the sheriff is obligated to do so. That is addressed later in sub-subsection (d)(4) (I'll give you a hint - the "report shall not be required" unless there is something bad to report).

    These two fingerprint based checks are obsolete because of HB 1032, which added the next check, and they should be repealed out of the statute.

    (2) The next sub-subsection is the third report (remember, sub-subsection (d)(1) covered the GBI and FBI records, that is two reports, not one). The third report is an instant electronic check. It is called NICS, and it is the same check that is run on a person when he buys a gun at retail. This check is performed so that the firearms license will act as an exemption to the NICS check when purchasing firearms. Since a firearms license holder has already had the NICS check run, there is no reason to run it again when purchasing a firearm. Flash the license and buy the gun.

    Note that there is no fingerprint requirement imposed by the federal government to grant a NICS exemption to a state firearms license. Three states issue licenses with no fingerprints at all and are exempt from the NICS check. Many other states issue licenses without fingerprints but failed to obtain the exemption for other reasons. The addition of the NICS check to the background checks Georgia required earned Georgia an exemption from the NICS check at point of purchase. Fingerprinting renewal applicants had nothing to do with it.

    This sub-subsection also requires the probate judge to direct the sheriff to do the check and return and appropriate report. It says nothing about whether the sheriff is required to return a report.

    (3) The fourth check is only for noncitizens, and I am not sure it is of enough interest to address it here. This was also added to obtain the NICS exemption.

    (4) Now we get to the meat of the matter. Note the subsections above do not require a report from the law enforcement agency. Rather, they require the probate judge to direct that a check be run and a report returned. So, is the Sheriff required to return a report?

    No.

    What? :shock:

    Well, read it for yourself. "When no derogatory information is found on the applicant bearing on his or her eligibility to obtain a license or renewal license, a report shall not be required." Did your friendly local probate clerk tell you that?

    Note that sub-subsection 129(d)(4) gives the local law enforcement agency only 50 days to to notify the probate court "of any findings relating to the applicant which may bear on his or her eligibility for a license or renewal license under the terms of this Code section," but that when no bad information about the applicant's eligibility is found, "a report shall not be required."

    Click on the link and read it for yourself if you think I am making this up.

    So, if no report is required, what is the sheriff to do? Return the application and blank license form with the one fingerprint so the judge can get your license issued within ten days, that's what! Remember, there is a 50 day timeline for the report, which is not required in most cases, after which:

    "The law enforcement agency shall return the application and the blank license form with the fingerprint thereon directly to the judge of the probate court within such time period. Not later than 60 days after the date of the application the judge of the probate court shall issue the applicant a license or renewal license to carry any pistol or revolver if no facts establishing ineligibility have been reported and if the judge determines the applicant has met all the qualifications, is of good moral character, and has complied with all the requirements contained in this Code section."

    That is it, folks.

    To recap: There are three checks (four if you are an alien). Two of them are fingerprint based and are taken care of in one request. One is an instant background check. The probate judge is not to do these checks, but is to direct the sheriff to do it and return a report. The sheriff is required to return a report, however, only when something is found that would make the applicant ineligible under one or more of the seven factors listed in 129(b).

    Did I miss anything? :D

    My opinion is that the fingerprint-based checks should be repealed, since the NICS check covers everything they would reveal and more. Using only the NICS check would result in same day issuance.


    Anyway, looking at the above, what is the basis for arguing that a probate judge is entitled to wait for the "required" reports beyond 60 days? What is the point of having "60 days" written into the statute? Does it mean anything? Is the General Assembly in the habit of writing laws that are simply "aspirational goals?" Even beyond this, as many of you know, many probate judges argue that they cannot issue a license until these "required" fingerprint-based checks are returned. Does the statute support that assertion?
     
  2. S&W 40

    S&W 40 Active Member

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    MP,

    I am in your boat (hope it does not sink) and I have been thinking the same thing after logging in here and reading all I can. If you would like for me to test (even though I am half way to the 60 and 1/4 way to the Chatham co standard) I may have to take some sick days and spend some time with my Probate Court,, I really do not want to make this a year long as has happened in other counties but hey I do not have now and maybe we can get some good going..

    Anyway not sure what I would really do,,, they deposited my check the next day, IAW the law shall issue in 60 day if nothing negative is found..

    I wonder what the judge would do if he had a contract (do we? they have my money) with a construction firm to do XX in so many days, they take the money and after XX days still no product???? How would they feel. Of course we are not talking about much $$$ but...
     

  3. Watch_Their_Hands

    Watch_Their_Hands New Member

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    MP~

    After reading your posts and O.C.G.A. 16-11-129, and also after perusing the other posts here, all I can say is that the loopholes in O.C.G.A. 16-11-129, most certainly deliberate, leave far too much wiggle room in the law. Georgia COULD have, with a little work and common sense on the part of our government officials (too much to ask perhaps???) amazing fair and representative gun laws.

    After applying for my GFL on Jan 31st 2007, and reading, IN BOLD PRINT, to expect a 4-5 month wait before learning of the states desposition in regards to my application, I was disgusted. At least here I have learned that I am not alone, and that only pressure from GA gun owners can turn this tide and remove the salt water from our throats. :rant:
     
  4. tj2000

    tj2000 New Member

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    Wohoooooo!!!!!!

    When I grow up I want to be just like Malum. :woohoo:
    I am really glad I joined this forum. I have learned more about our carry laws and how they affect gun toters like me from you guys, I have recomended this site to alot of deputies that I know from Cherokee County. Several are very impressed with it and some are becoming more educated abot the law abiding citizen.
    Thank you guys and our moderators for having a great place to learn.
    TJ \:D/ \:D/
     
  5. Adam5

    Adam5 Atlanta Overwatch

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    I agree with you 100% TJ. I wish I had learned about this site last summer when I was waiting four months for my license from Forsyth Co. I do hear that Forsuyth has improved their response time since then.
     
  6. Watch_Their_Hands

    Watch_Their_Hands New Member

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    I agree, tj2000. The more people that learn of this informative site the better. I know that I have learned quite a bit in a short time, and hope to learn much more. Much thanks to all that post here. O:)
     
  7. luke0927

    luke0927 New Member

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    applied for mine on September 28 (day after my 21) and got it Nov 15 in Forsyth Co.
     
  8. USMC - Retired

    USMC - Retired Active Member

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    48 days.... Within the limits of the law no less! The Force is strong in you Luke!


    ...sorry, just couldn't resist
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Like what? This is the substantive type of commentary which I am soliciting.
     
  10. Watch_Their_Hands

    Watch_Their_Hands New Member

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    MP~

    As you stated above:

    "So, if no report is required, what is the sheriff to do? Return the application and blank license form with the one fingerprint so the judge can get your license issued within ten days, that's what! Remember, there is a 50 day timeline for the report, which is not required in most cases, after which:

    The law enforcement agency shall return the application and the blank license form with the fingerprint thereon directly to the judge of the probate court within such time period. Not later than 60 days after the date of the application the judge of the probate court shall issue the applicant a license or renewal license to carry any pistol or revolver if no facts establishing ineligibility have been reported and if the judge determines the applicant has met all the qualifications, is of good moral character, and has complied with all the requirements contained in this Code section."

    Herein lies the problem. This DOES NOT HAPPEN. Regardless of how one's app. SHOULD be handled according to the letter of the law, there seems to be no uniform following of said state law from one county to another. This is what I have gathered over the last few days spent reading the posts here. Thus, and to use your words, this is only an "aspirational goal"

    To continue; no, the statue does not support that assertion, in reply to your words:

    "Even beyond this, as many of you know, many probate judges argue that they cannot issue a license until these "required" fingerprint-based checks are returned. Does the statute support that assertion."

    And so, we are at square one again, with no uniform following of the law, with each county bouncing the ball back and forth off one department, person, etc., to another, i an attempt to cover their delays. :evil:

    If all apps. were to be delivered back to individual county probate judges after being run through the four sub-section checks, THEN sent to ONE office, AG?? for for final approval, then direct mailed to the applicant...

    The answer: Well, I do not know the answer exactly, other than my not-quite-formed idea directly above...but to be honest, I believe by tossing ideas out there through posts such as this one, we will find it. :D

    The contract idea that S&W 40 suggested would be one step in the right direction as well. :wink:
     
  11. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Probate judges blatantly disregarding the law is not a "loophole!" :lol:
     
  12. Watch_Their_Hands

    Watch_Their_Hands New Member

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    No, not as such. But they are able to do it based on how the law is written.
     
  13. Gunstar1

    Gunstar1 Administrator

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    Meaning no penalty for disregarding the law?
     
  14. Watch_Their_Hands

    Watch_Their_Hands New Member

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    Yes, there seems to be no penalty for disregarding the law.
     
  15. Gunstar1

    Gunstar1 Administrator

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    Your correct, there is not. I am definatly in favor of adding some.
     
  16. glocked_n_loaded

    glocked_n_loaded New Member

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    glad im out of it

    Probate judges blatantly disregarding the law is not a "loophole!" :lol:[/quote:1i0z8h3r]


    MP... remember me.... Talking about probate judges blatantly disregarding the law.....i never got my situation resolved with the probate judge in my county.... so i bought a house across the river. Got my permit in five days here. the judge can leave you in limbo land indefinitely because there is nothing they have to fill out saying you application has been denied for "XXX" reason, thus giving you a leg to stand on to fight them if necesary.

    licensing here is totally handled by and issued by the sheriff's dept, much better way to handle it i think. atl least the sheriff has some common sense.
     
  17. Watch_Their_Hands

    Watch_Their_Hands New Member

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    Glad you finally got your GFL, glocked_n_loaded. :woohoo:
     
  18. Watch_Their_Hands

    Watch_Their_Hands New Member

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    I agree, Gunstar1. All anyone has to do is look at what happened to glocked_n_loaded. He was left with no answers indefinitely. :x
     
  19. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    5 days in a "may issue" state! :D And it's good in Georgia. Are there any Sheriff-imposed restrictions on it?
     
  20. Watch_Their_Hands

    Watch_Their_Hands New Member

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    Five days in a "May Issue" state. That's good indeed...but that is also exactly the problem. In a "Shall Issue" state, our great state of GA, glocked_n_loaded received no answer at all from the Probate Judge of his county, not within the 60 days required, not in 6 months, never. Across the river it took him only 5 days.

    This is additional evidence that Probate Judges from various counties and states do as they please with no regard for state law. The problem is not the law per say, but the fact that there is no accountability for disregarding THE LAW. But sadly, as with many laws, whether they concern gun owners rights or any other laws, it will most likely take another law or amendments to the existing law, to change this blatant disregard for the rights of gun owners.

    MP~, when you said earlier in this post that my comments were not addressing a loophole in the law, you were fundamentally incorrect. Close the hole that allows Probate Judges to do as they please concerning GL's, and the current law will work. :righton: If this does not happen, what we remain with is indeed a loophole no matter the correct legal language. :wink:

    Addressing this common sense problem of how the law is exercised is where our energy should be spent, not on technicalities of the law. It is exactly this that keeps legal gun owners such as ourselves frustrated and unable to focus our attention on the actual problems we face. From each comment in this post it is easy to see that we are all familiar with how the law should be administered. But where the law falls short common sense should take over. :wink: