Gabe Kaminsky on September 6, 2022
- The FBI secretly provided forms to Americans between 2016 and 2019 to “voluntarily” relinquish their rights to own, buy or even use firearms, according to internal documents and communications.
- The signed forms, which were unearthed by the firearms rights group Gun Owners of America (GOA), raise serious legal questions, lawyers say.
- “We’re into a pre-crime, Minority Report type of world where the FBI believes it can take constitutional rights away from anyone it thinks possibly might pose a threat in the future,” said Robert Olson, outside counsel for GOA.
The FBI secretly pressured Americans into signing forms that relinquish their rights to own, purchase or even use firearms, according to a trove of internal documents and communications obtained by the Daily Caller News Foundation.
The forms were presented by the FBI to people at their homes and in other undisclosed locations, according to bureau documents unearthed through the Freedom of Information Act by the firearm rights group Gun Owners of America (GOA) and shared with the DCNF. At least 15 people between 2016 and 2019 signed the secret forms, which ask signatories to declare themselves as either a “danger” to themselves or others or lacking “mental capacity adequately to contract or manage” their lives.
GOA and attorneys who specialize in Second Amendment law told the DCNF the existence of the forms raise serious legal questions.
“We’re into a pre-crime, Minority Report type of world where the FBI believes it can take constitutional rights away from anyone it thinks possibly might pose a threat in the future,” said Robert Olson, GOA’s outside counsel who specializes in firearms law. “Which certainly is not something you expect in the United States.”
The form specifies that signatories will be permanently registered with the FBI’s National Instant Criminal Background Check System (NICS) — which the form states would legally bar signatories from being able to “purchase, to possess and to use any firearm.” It is unclear what exact criteria the FBI used to identify signatories, but some forms include bureau notes detailing ongoing investigations.
Many signatories allegedly made violent threats in online chat rooms, in person and on social media platforms, FBI notes show. The 15 signed forms obtained by the DCNF show FBI agents in Massachusetts, Michigan and Maine presented them to Americans — whose names were redacted by the bureau.
While the existence of the FBI form itself was first revealed in 2019 by the firearms blog Ammoland, the outlet did not provide evidence of it being used at the time. GOA obtained the signed forms as part of its lawsuit initiated in January 2020 against the bureau to compel disclosure of records related to the forms.
A spokesperson for the FBI told the DCNF the form was “discontinued” in December 2019, but they did not say why that decision was made.
“The NICS Indices Self-Submission form was created to provide an avenue for individuals to self-report to the NICS Section when individuals felt they were a danger to themselves or others,” the FBI spokesperson said.
‘That Is Terrifying To Me’
In order to get signatures, FBI agents in some cases interviewed people at their homes and elsewhere. While signing the form is supposed to be done “voluntarily,” lawyers told the DCNF there is a sense of undue pressure when Americans have to deal directly with FBI.
“A person is almost invariably at a disadvantage when dealing with armed federal agents,” said Olson.
In 2017, there was one case in which the FBI “was advised of a Facebook conversation” where a man allegedly “threatened to ‘shoot up’ a church,” according to bureau notes. The man denied making the threats in interviews at his home, telling the FBI “he did not want to kill anyone” and has “never possessed a firearm and has no desire to possess a firearm,” notes show.
Nevertheless, the man later filled out the form waiving his gun rights.
In 2018, FBI agents in Maine interviewed a high school student who “decided to look at online advice for hacking” on his school-assigned laptop, bureau notes show. Agents tried to access the student’s Facebook, but were “unable” to do so, according to the notes. However, the high school student eventually agreed to sign the self-submission form.
Another case involved a Massachusetts man who was arrested for vandalism in 2017 after “he broke several apartment windows” and allegedly told police, “I’m gonna kill all you white cops,” according to FBI notes. Three months later, he was interviewed at a redacted location by the FBI and was transported to a hospital after he “became agitated, began sweating profusely and complained of muscle pains.”
Once at the hospital, the man signed the self-submission form in the presence of a doctor and an FBI agent, according to bureau notes.
Reed Martz, a lawyer who runs a Second Amendment blog, told the DCNF “there is implicit pressure any time the FBI is asking you to sign a form.” There is naturally “an adversarial relationship” between everyday people and the FBI, he said.
“The FBI presented this to people,” said Martz. “That is terrifying to me. Think about that. The whole thing is chilling.”
It is unclear whether FBI agents threatened anyone with arrest if they didn’t sign.
Unanswered Legal Questions
Records do not show when the FBI form was created, who created it and whether or not it was distributed to federal agencies. However, the form was apparently “reviewed by legal counsel,” an FBI employee told a colleague in a November 2016 email obtained by the DCNF. At least 10 people had signed the forms by November 2016, the same FBI employee told their colleague.
Two days later, on that same email thread, one of the FBI employees said they “shared” the forms with “agencies who use these forms like Secret Service and Social Security.” The Secret Service declined the DCNF’s request for comment and the Social Security Administration did not respond.
Federal law requires government agencies to get public comment and approval from the Office of Management and Budget (OMB) before collecting information from the public. Likewise, all official federal forms are supposed to be assigned a “control number,” experts told the DCNF.
However, the forms unearthed by GOA do not have a control number — a fact that underscores the FBI’s glaring lack of transparency — lawyers say.
“This is a form that’s designed for outside the office,” said Martz. “It raises my level of suspicion that it doesn’t have an official form number that you can look up and can download.”
The form also contains space for a “physician or mental health professional” to affirm the signatory “has adequate mental capacity to voluntarily execute this document,” which is a huge red flag, according to John Harris, a lawyer who heads the Tennessee Firearms Association.
“I don’t see how a licensed physician could ever competently sign the declaration that the person has the mental capacity to voluntarily execute the agreement but lacks the ‘mental capacity adequately to contract or manage the details of my life.’” said Harris.
If the signatory does not have the “mental capacity” to own, buy or use firearms, they “could not possibly have the competence” to agree to sign a form waiving away their gun rights, said Martz.
There are also questions about the form’s compliance with the Gun Control Act (GCA) of 1968. The GCA holds that someone may be barred from owning guns if they are “adjudicated as a mental defective or has been committed to a mental institution.”
However, the GCA makes no mention of people being able to declare themselves as mentally unfit to own firearms. Likewise, the forms do not indicate that courts ruled signatories as unfit to own firearms.
“By definition, the people targeted with these forms are those who are not otherwise ‘prohibited persons’ and have not committed any actual crime with which they can be charged,” said Olsen. “Otherwise, there would be no need to use the form.”
Harris noted the GCA does not necessarily render anyone with a “mental condition” a “prohibited person” to own firearms. Both those labels “require adjudication,” he said.
“The form seeks to deceive and mislead not only the individual, but perhaps even a medical provider to believe that a mental health issue is adequate to render someone a prohibited person under the statutory language, when the form itself lacks any information or disclosures that make it even remotely an accurate representation of the law,” Harris told the DCNF.
The FBI declined to identify any statutory justification for the forms, and OMB did not respond to a request for comment.
‘You Can’t Waive Constitutional Rights’
Those who signed the FBI forms could have standing to sue should the government ever prosecute them for trying to buy a gun, lawyers say.
“How would such unilateral waiver of a constitutionally protected right give rise to a basis for subsequent denial of that right and or form the basis for a valid criminal conviction?” Harris asked. “Could, in contrast, someone waive the right to vote or run for office and have that enforced?”
More fundamentally, the FBI forms call into question whether or not Americans can sign away their constitutional rights. Ken Cuccinelli, the former attorney general of Virginia, says you can’t.
“You can’t waive constitutional rights,” said Cuccinelli, now a senior fellow at the Center for Renewing America. “They’re natural rights.”
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