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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.
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These two fingerprint based checks are obsolete because of HB 1032, which added the next check, and they should be repealed out of the statute.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?
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?
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).havoc1 said:
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?
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?
