Appeal of a “DENY” of the NYSP

On September 13, 2023, the NYS Police interjected themselves in between the federally-licensed dealer in firearms and the federally-licensed dealer for purposes of the customer background check at the point-of-sale. We know that the federal Gun Control Act of 1968 continues to apply, regardless, and that customers must complete the ATF Form 4473, regardless, but what happens to the customer when the word “DENY” appears on the shop screen? Do you simply hand your customer the STN number and send them on their way?

The answer is that our industry has always been more than that to our customers and to the Second Amendment, and that we’re going to have to step it up, again, because New York has not and is unlikely to do so.

Let’s pull the statute, and, using a 3-blog series, let’s cover the NYSP administrative appeal, the NYS Office of the Attorney General administrative appeal, and the federal FBI appeal.

Start with the three sentences that originate from the 2022 NYS “Concealed Carry Improvements Act” (“CCIA”), codified at NY Executive Law s.228(8), as follows:

“(8)  Any potential buyer or transferee shall have thirty days to appeal the denial of a background check, using a form established by the superintendent.  Upon receipt of an appeal, the division shall provide such applicant a reason for a denial within thirty days.  Upon receipt of the reason for denial, the appellant may appeal to the attorney general.”

The first step in helping your customer is to give the customer the STN (“state transaction number”). Write it down. Jot it down with the date and the time. Better? Add your shop information to that slip of paper. Best? Staple that customer information to the 1-page NYSP instruction page.

Here’s where we’re going: www.NYSNICS.ny.gov. That’s the dealer sign-in page. Bottom left corner says “Appeals.” Click on that and you have “Appeals Instructions” and “Appeals Form.” The “instructions” is the 1-pager to print up and put in a file folder next to your register. Even though it doesn’t have blank lines for your shop information, the STN, and the date and time, why not make up your own form? You could even print it on the back side of the instructions page.

Take notice that your customer has only thirty days (30-days) to submit the appeal. If you have a red Sharpie handy, please circle that on the instructions page. It’s a statutory deadline.  It’s the one thing to emphasize by way of PSA.

If you click on the “form” link, you’ll see the short appeals “form.” The first question a customer fills in is that STN number. Some of the “yes/no” questions, if “yes” is checked expand with additional questions. This is it.  This one page web form without further instructions, explanations, or even a disclaimer to contact an attorney.  It is a sharp contrast to the extensive instructions and downloadables available from the FBI for their appeals process, which you can see HERE, if you haven’t already.

I am not aware of any downloadable PDF from the NYSP that could be used to file the appeal through the mail. There is no field to allow a customer to identify an attorney representing him or her. Nor is there a field to allow an attorney to identify and submit on behalf of a client with the response returnable directly to the attorney. All of these observations are on a list of differences between the federal appeals system through the FBI and the state appeal through the NYSP.

Chatter being what it is, there seems a general consensus that the NYSP do send a fairly prompt response to the submitted appeal.  It may be only one sentence.  And it may be as cryptic as “Due to federal denial under 922g1.”  (The NYSP seems not even to have the basic civil rights respect to type out 18 U.S.C. s.922(g)(1) to help a customer find the statute with the disqualification, but that’s what their shorthand means.)  The results seem about the same for subsequent denials v. reversals to “proceed.”

As a practical matter, I would generally suggest not getting into a detailed conversation with your customer around why he or she might have been denied. There is no obvious confidentiality to an FFL-customer interaction, there may be other persons around in the store, and you’re unlikely to be able to provide legal advice. It’s an awkward spot to be in, but, there is a public service value that your customer likely will remember if you canassist with providing the STN number in writing, the NYSP website address, and the NYSP 1-page instruction form.

If the customer appeal is successful, the dealer screen should change from “DENY” to “proceed.” Some dealers have reported a field of “proceed on appeal.” Remember that the NYSP system does not send notification to you of the change of the status of your customer. Some dealers are keeping lists of “delays” and “denies” at their register, in order to periodically scroll up and down the transaction list, to notice whether a particular status has changed. Some customers do contact dealers again with successful appeal results. Several dealers have reported to me that their courtesy call to persons whose status has changed (whether “deny” to “proceed on appeal” or “delay” to “proceed”) have those calls go unanswered by the customer.

Don’t forget the 30-day rule applying to the validity of the “proceed.”  It is possible a customer can be denied at your register, get around to submitting an NYSP appeal, finally get a response back, and return to you in longer than 30-days.  I am unaware of any NYSP equivalent of the federal UPIN.  Unfortunately, in that instance, your customer is then going through a fresh background check and, possibly, though hopefully not, being denied, again.

There is simply so little information in circulation around the NYSP administrative appeals process that I want to start the conversation through this blog and other spots I’m doing. Please be welcomed to share to me your customer data.

Part 2 of this 3-part blog series will discuss what happens if the customer is denied - essentially “again” - by the NYSP through the administrative appeal, which will then mean a further administrative appeal to the NY Office of the Attorney General. How that works, and more, in the next blog.

Please note that this blog does not constitute legal advice. It is provided for educational purposes only, and is current as of the date it is published. Individuals should consult with an attorney of their choosing regarding their individual circumstances. Please do not provide personal information through this website as there may be no confidentiality rule to cover such a transmission.