NICS Delay

A Federal Firearms Licensee (FFL) holder does a background check on the buyer of a firearm via ATF. The process involves the FBI National Instant Criminal Background Check System (NICS) and the call center to the FBI NICS Section. The National Instant Criminal Background Check System (NICS) is a name check system that uses databases to determine if a person may legally receive or possess a firearm.

When someone attempting to purchase a firearm is told that there has been a delay on their background check will not be able to purchase and leave the FFL the same day with their firearm. A “Delayed” message means the FBI needs to do additional research to verify the person's background. The FBI claims that they communicate with federal, state, local, and tribal law enforcement agencies and courts. Typically they see someone in the initial background data, flag the delay, and then nothing more happens. A delay is not a denial.

To purchase a firearm the ATF Form 4473 is completed by the purchaser. If some information provided on ATF Form 4473 has matched with information contained in the National Crime Information Center, the Interstate Identification Index, and/or the NICS Indices the response can be an immediate deny or a delay. The Privacy Act of 1974 restricts the ATF or FBI to supply specific information to you via the telephone on what was matched to trigger the delay, or denial.

If the FBI cannot make a determination within three business days of a background check, the FFL may transfer the firearm, unless prohibited by state law. However, the FFL dealer is not required to complete the transfer. In other words, the gun store can deny the buyer just because of the NICS delay. The buyer has no rights to request completion of the transaction after the three day wait.

THREE DAY DELAY: rather than an approval or denial, the background check results in a notification that the retailer must delay the transaction for three full business days before completing the transaction. The FFL holder, typically a firearms dealer such as a sporting goods store, refer to this delay by using the term "NICS Delay." The three day count does not include the day the check was initiated, Saturdays, Sundays, or state holidays. The entire transaction is purged within 88 days.

If the FFL lawfully transfers a firearm after the three business days expires, and the NICS system later determines the transaction should have been denied, NICS notifies the FFL and contacts ATF to handle the case as a firearm retrieval referral. Approximately a tenth of one percent of NICS checks are referred for retrieval of the firearm.

In 2019, 89.44 percent of checks resulted in an immediate determination, while the FFL was still on the phone with NICS. Just over 10 percent of all transactions were “delayed” meaning they were not immediately determined.ii And, 98 percent of the delayed transactions are resolved with the vast majority being resolved during the first three business days.

OF all NICS delays that extend beyond three days 12 percent are eventually denied. This compares to a 54 percent denial rate for delays that are resolved within the three business days.

The 1993 Brady Act resulted in the creation of NICS for gun purchase background checks.

Federal Categories of Persons Prohibited from Receiving Firearms

The federally prohibiting criteria to deny someone the purchase of a firearm are as follows:

• A person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year or any state offense classified by the state as a misdemeanor and is punishable by a term of imprisonment of more than two years.
• Persons who are fugitives from justice.
• An unlawful user and/or an addict of any controlled substance; for example, a person convicted for the use or possession of a controlled substance within the past year; or a person with multiple arrests for the use or possession of a controlled substance within the past five years with the most recent arrest occurring within the past year; or a person found through a drug test to use a controlled substance unlawfully, provided the test was administered within the past year.
• A person adjudicated mental defective or involuntarily committed to a mental institution or incompetent to handle own affairs, including dispositions to criminal charges of found not guilty by reason of insanity or found incompetent to stand trial.
• A person who, being an alien, is illegally or unlawfully in the United States.
• A person who, being an alien except as provided in subsection (y) (2), has been admitted to the United States under a non-immigrant visa.
• A person dishonorably discharged from the United States Armed Forces.
• A person who has renounced United States citizenship.
• The subject of a protective order issued after a hearing in which the respondent had notice that restrains them from harassing, stalking, or threatening an intimate partner or child of such partner. This does not include ex parte orders.
• A person convicted in any court of a misdemeanor crime which includes the use or attempted use of physical force or threatened use of a deadly weapon and the defendant was the spouse, former spouse, parent, guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited in the past with the victim as a spouse, parent, guardian or similar situation to a spouse, parent or guardian of the victim.
• A person who is under indictment or information for a crime punishable by imprisonment for a term exceeding one year.