Giuseppe Sedita wants to buy a gun, but what should be a relatively straightforward process has instead devolved into a ‘Kafkaesque’ nightmare of endless delays and bureaucratic inaction; one a federal judge says may very well violate Sedita’s Second Amendment rights.
As U.S. District Judge Trevor McFadden summed up in a memorandum order issued last week:
Three times, he has been given the run-around when trying to buy a firearm. Each time, the Government has refused to green light 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 non responsive form letters.
In his lawsuit, Sedita and his attorney Amy Bellantoni argued that he was erroneously denied a firearm, but McFadden says that’s not the real issue. Instead, the judge found that “the record is clear that Sedita was consistently delayed a firearm.”
McFadden says that since Sedita “has shown that his proposed course of conduct—purchasing a firearm—falls within the plain text of the Second Amendment” and “has raised aquestion of fact as to whether the background check system was employed in an abusive manner towards him” his lawsuit can proceed to trial.
Since the Bruen decision was handed down by the Supreme Court in 2022 we’ve seen several lawsuits challenging lengthy wait times for obtaining a concealed carry license, waiting periods for gun purchases, and de facto waiting periods built in to permit-to-purchase laws. To the best of my knowledge, however, Sedita is the only active case to take on the delays that can sometimes be imposed by the federal government when purchasing a firearm at retail.
In Sedita’s case, the delays have stretched on for years. The New Yorker first tried to buy two firearms in 2021, but both purchases were denied by NICS. When his attorney reached out to NICS to find out the reason for the denial, they were told that the transaction numbers were “too old” and that NICS “no longer had any information about the attempted purchases.”
So Sedita tried to buy another firearm, and was once again denied by NICS. This time around, however, when Sedita and his attorney asked why, the FBI’s Criminal Justice Information Services informed them that Sedita’s purchase wasn’t actually denied, but instead was delayed.
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. 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.
Sedita, however, says the problem isn’t with the state court, but with the federal government. The plaintiff admits that he was convicted of a misdemeanor charge of attempted assault and was subject to a protective order as a result, but “insists that the assault did not qualify as domestic violence, as no covered relationship was implicated.” Sedita maintains that the attempted assault was on a male with whom he did not have a“qualifying relationship,” so the federal prohibition on firearm possession for those convicted of a domestic violence misdemeanor doesn’t apply to him.
So, Sedita tried to purchase a firearm a third time, once again completing a Voluntary Appeal File. This time, however, he also attached the charging documents from the state court to demonstrate that his convictions did not implicate domestic violence. After turning in his paperwork, Sedita waited six months for the government to respond, but heard nothing from the CJIS during that time period.
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.
Rather than continue on the bureaucratic merry-go-round, Sedita then filed his lawsuit against the federal goverment, the Attorney General, and the Director of the FBI.
The government contends that Sedita’s “Second Amendment claim falters, as the Supreme Court has found background checks preceding firearms sales ‘presumptively lawful.'” But as McFadden correctly pointed out, the justices also held in Bruen that excessive delays and wait times for those background checks may very well constitute a violation of our Second Amendment rights. And McFadden went one step further, arguing that the right to keep and bear arms must, by necessity, also encompass the right to acquire a firearm, which means the lengthy delays have directly impacted Sedita’s Second Amendment rights.
In short, the Court concludes the following: Regulations impeding the acquisition of a firearm—including background checks—implicate the plain text of the Second Amendment.The ultimate question of whether such a regulation is an “infringe[ment]” on a person’s right to keep and bear arms, perhaps because it was “put toward abusive ends,” is a matter dealt with at Step Two of the Bruen framework.
In that second step, the defendants must demonstrate that the regulation is consistent with our historical tradition of firearm regulation. McFadden says that “more record development is necessary before the Court can conclude whether Sedita experienced an abusive background check system at the Federal Officers’ hands,” but “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 judge concluded, “the Federal Officers present no evidence of this nation’s historical tradition suggesting otherwise.”
McFadden’s order doesn’t guarantee that Sedita will win his lawsuit against the federal government, only that it can move forward. That in itself is a small victory, and it’s great that the judge has recognized that the current NICS system may very well violate the Second Amendment rights of those caught in a never-ending cycle of delays, denials, and bureaucratic disinterest. It’s ridiculous, however, that Sedita has had to take these extraordinary steps just to exercise his Second Amendment rights, and hopefully this is one of many cases where the DOJ will reverse course now that Donald Trump has ordered AG Pam Bondi to undertake a thorough review of all of the existing litigation that implicates our right to keep and bear arms.
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