How did James O’Keefe end up on a NICS denial list for firearms purchases? The founder of Project Veritas aims to find out, filing a lawsuit against the FBI for infringing on his Second Amendment rights. The system “falsely identified” O’Keefe as a convicted felon, which is either a processing failure that should concern people about the accuracy of NICS, or retaliation of some kind, which should concern everyone.
In the meantime, O’Keefe is getting as much mileage out of the situation as he can:
When asked why the FBI has denied his ability to purchase a firearm, the FBI disclosed O’Keefe is falsely identified as a convicted felon on the NICS (National Instant Criminal Background Check) list. He has never been convicted of a felony.
“The lawsuit is being filed in the Southern District Court of New York seeking an order requiring the FBI to remove him from this list as required by law under 18 U.S.C. § 925A,” said Jered Ede Esq., who is representing O’Keefe.
“Notably, the FBI has not disclosed what information it is relying on to place him on its watch list,” Ede stated in the complaint filed with the court.
How did O’Keefe get on the NICS list in the first place? The most obvious explanation is that the FBI misinterpreted O’Keefe’s conviction in Louisiana in 2010, when he got charged with a felony initially in his ill-conceived sting operation on then-Senator Mary Landrieu’s office. That was an excessive charge at best, though, and it was never brought to trial as a felony. O’Keefe eventually pled guilty to a misdemeanor, paid a fine, and completed a three-year probation sentence several years ago. O’Keefe and the other defendants apologized for their actions, and O’Keefe has never made that mistake since. (He’s less apologetic now, as you’ll see in the video, and argues that he never should have been charged at all.)
His lawsuit notes that any information suggesting a felony conviction or a qualifying jail sentence under NICS is false, and claims the FBI will not disclose their source for that information:
In the video, O’Keefe wonders aloud whether his listing is retaliatory for his reporting:
O’KEEFE: Denied. That’s crazy. I wonder if that’s more retaliation.
RAY (RAY’S GUN SHOP): Could be.
RAY (RAY’S GUN SHOP): They don’t like you. You’re in the newspaper business, man.
O’KEEFE: That’s right.
RAY (RAY’S GUN SHOP): If they don’t.
O’KEEFE: I’m just trying to protect myself.
RAY (RAY’S GUN SHOP): I’d go after em. And I’ll tell ya if it infringes off your work. Yeah. Get a lawyer. File a complaint against the FBI.
I’m unaware of any O’Keefe or PV reporting that put the FBI in a bad light. In this case, I’d more inclined to apply Hanlon’s Razor: Never attribute to malice that which is adequately explained by stupidity. Incompetence of one form or another is a likelier explanation; either a NICS employee misinterpreted the 2010 case, or it’s just a random error. There are issues with those explanations as well, however. For instance, how did NICS even hear about a misdemeanor case at all? How did O’Keefe end up being a random error in the system? And those explanations still raise questions about the competence of the NICS system (in both directions), and how many other Americans with less visibility might be unfairly constrained from exercising their Second Amendment rights.
The lawsuit will be entertaining, assuming the FBI doesn’t do the smart thing and moot it by correcting the NICS record. For that, perhaps we need to coin another aphorism: Never bet on bureaucracy doing the smart and expedient thing.