"Kafkaesque" Gun Background Check Delays May Violate Second Amendment

From Judge Trevor McFadden's opinion last week in Sedita v. U.S. (D.D.C.):

"Where was the Judge whom he had never seen? Where was the High Court, to which he had never penetrated?" Franz Kafka, The Trial. Like Kafka's Joseph K., Plaintiff Giuseppe Sedita alleges he has been adjudged by a muddled and garbled governmental process that flouts his rights and offers no effectual remedy when he complains. Three times, he has been given the run-around when trying to buy a firearm. Each time, the Government has refused to greenlight his gun purchase. And each time, Sedita has walked away empty-handed. Although Sedita has repeatedly tried to set the record straight through the Government's administrative process, remedy has eluded him; the Government has rebuffed Sedita's attempts to clear himself through silence and nonresponsive form letters….

Sedita sued, claiming this violated his Second Amendment rights, and the court allowed the claim to go forward. The court began by holding that buying a gun "is covered by the clear prescription of the Second Amendment" (since keeping and bearing requires a pathway to buying), and goes on to reason thus:

[T]he Federal Officers [then] bear the burden of "demonstrat[ing] that the regulation is consistent with this Nation's historical tradition of firearm regulation." Bruen footnote nine acknowledges that "definite" and "objective" background checks fall comfortably within that tradition. But when a particular licensing regime diverges from that tradition—perhaps by becoming "abusive"—it infringes on the Second Amendment.

"Following Bruen, the Supreme Court has not explained what constitutes 'abusive ends' in the context of firearm regulations, aside from its discussion of 'shall issue' licensing regimes." … In the context of Sedita's challenge, the Court finds a seemingly permissible background check regime could become abusive if riddled with inaccuracies but bereft of an effective method to correct those inaccuracies, leading to perpetual and inevitable delays on firearm purchases. At the very least, the Federal Officers present no evidence of this nation's historical tradition suggesting otherwise.

More record development is necessary before the Court can conclude whether Sedita experienced an abusive background check system at the Federal Officers' hands. Sedita has shown that there is a genuine issue of material fact as to whether CJIS continued to harbor erroneous information about him, despite his corroborated protestations to the contrary. And he has established that there is a legitimate question about whether his attempts to utilize the Voluntary Appeals File were fruitless because of inherent procedural flaws with the system. This suggests delays will persist in the future, through no fault of his own and with no ability for him to correct it. More, it has raised the specter of a system that promises appeals and vindication, but in practice is intended to frustrate or dissuade individuals from exercising their Second Amendment rights. Kafkaesque indeed….

[T]here is a genuine dispute of material fact on Sedita's Second Amendment claim. So the Motion for Summary Judgment by the Federal Officers is DENIED….

Here's the court's description of Sedita's factual allegations

Now to Sedita. He alleges that he tried to buy two firearms in 2021, but both purchases were "erroneously denied by NICS [National Instant Criminal Background Check System]." Through his attorney, he contacted NICS to obtain the grounds for denial of his firearm purchases. NICS conveyed that the transaction numbers were "too old" and that the agency no longer had any information about the attempted purchases. So Sedita was stalled on these first two firearm purchases. With neither answers nor a gun, Sedita again tried to exercise his Second Amendment right and buy a different firearm. But he alleges that once more, "his transaction was wrongfully denied by NICS," and he could not obtain a gun.

Again, he wrote NICS to inquire why. CJIS informed Sedita that his purchase was not "denied" but merely "delayed." See also First NICS Packet, ECF No. 11-3, at 10 (indicating the transaction number could not "be matched to a transaction maintained in the NICS" and that "the FBI is required to destroy all proceeded transactions" and "delayed transactions" and thus it was "possible that [Sedita's] transaction fits one of these two categories."). Sedita decided to complete a Voluntary Appeal File packet to hopefully obtain a Unique Personal Information Number and prevent future delays or denials by NICS.

But this, too, was in vain. The CJIS rejected Sedita's Voluntary Appeal File request after determining he was ineligible to be entered into the system. It noted that Sedita had a state conviction that fell under a "potentially prohibitive category." Specifically, CJIS thought Sedita was disqualified from owning a firearm under either 18 U.S.C. § 922(g)(8), which applies to those subject to a restraining order by an intimate partner or child, or 18 U.S.C. § 922(g)(9), which applies to someone who has been convicted of a domestic violence misdemeanor. A copy of the allegedly disqualifying criminal record was attached to the denial. The FBI informed Sedita that if he wished to challenge the accuracy of the record on which the Voluntary Appeal File rejection was based, he could apply directly to the state court from which the record originated.

But Sedita thought this denial was inappropriate. True, he had been convicted in state court of a misdemeanor charge of attempted assault and was formerly subject to a protective order as a result. But he insists that the assault did not qualify as domestic violence, as no covered relationship was implicated. Instead, the conviction involved a male complainant with whom Sedita claims he was not in a "qualifying relationship." 28 U.S.C. § 922(g)(9). Thus according to Sedita, the misdemeanor conviction should not have disqualified him from obtaining a firearm.

So he applied again to be entered into the Voluntary Appeal File. And he demanded that his most recent attempt to buy a firearm be greenlighted. He attached the charging documents from the state court to demonstrate that his convictions did not implicate domestic violence. And he insisted that he "has no disqualifiers to the transfer, receipt, possession or ownership of firearms." Then he waited. And waited. But he heard nothing back.

Six months later, Sedita sent another packet to the CJIS reiterating that he had wrongly been denied a firearm and entry into the Voluntary Appeal File. He again insisted that "[h]ad an investigation by NICS into the underlying facts been conducted, it would have revealed that … the convictions were not 'domestic violence' related." And he provided the documentation as proof.

The next week, the CJIS purported to "respond[ ] to [Sedita's] inquiry concerning [his] attempt to possess or receive a firearm." It again showed that the transaction number for his most recent attempt to buy a firearm could not be located, making it "possible" that the transaction was either "proceeded" or "delayed." And, in a fit of amnesia, it advised Sedita to apply for a Unique Personal Information Number through the Voluntary Appeals File program to prevent future extended delays or erroneous denials. It even attached a blank Voluntary Appeals File application.

Amy L. Bellantoni represents plaintiff.