The surge in background checks during the COVID-19 pandemic has put an unprecedented strain on the nation’s background check system, exacerbating the Charleston loophole1The loophole takes its name from the 2015 shooting of nine worshipers at Emanuel A.M.E. Church in Charleston, South Carolina, where the shooter, though legally prohibited from having a firearm, was able to buy the gun he used in the shooting because his background check was not completed within three business days. Michael S. Schmidt, “Background Check Flaw Let Dylann Roof Buy Gun, FBI Says,” New York Times, July 10, 2015, https://nyti.ms/2VmlD0y., an NRA-backed loophole that allows dealers to choose to complete gun sales after three business days, even if a background check is still not complete.218 U.S.C. 922(t)(1)(B)(ii). Congress should act swiftly to address this loophole that has been exacerbated during the pandemic.
- It is estimated that in 2020, nearly 600,000 background checks took longer than three business days—two times the number in an average year.3Everytown for Gun Safety Support Fund, “Undeniable: How Long-Standing Loopholes in the Background Check System Have Been Exacerbated by COVID-19,” December 10, 2020, https://everytownresearch.org/report/background-check-loopholes/.
- Records show that by mid-November, 2020, the Federal Bureau of Investigation (FBI) had flagged nearly 6,000 gun sales because a purchaser who could not legally possess a firearm was allowed to buy one because of the Charleston loophole.4“Everytown Reveals There Were a Record Number of Gun Sales to People Prohibited from Buying in 2020 Because of a Dangerous Loophole,” Press Release, February 4, 2021, https://bit.ly/3r8qwZn.
- Because a regulation provides the FBI with 90 days to complete the check before the record is deleted, it is estimated that over 438,000 checks initiated in 2020 will be completely wiped from the system before ever being completed.5Everytown for Gun Safety Support Fund, “Undeniable: How Long-Standing Loopholes in the Background Check System Have Been Exacerbated by COVID-19,” December 10, 2020, https://everytownresearch.org/report/background-check-loopholes/.
Due to an NRA-backed amendment to the 1993 Brady Bill6Jennifer Mascia, “How America Wound Up With a Gun Background Check System Built More for Speed Than Certainty,” The Trace, July 21, 2015, https://bit.ly/3b4rZub., federal law allows licensed firearm dealers to transfer guns to a buyer after three business days, even if the buyer’s criminal background check has not been completed.
- Since 1994, federal law has required that licensed guns dealers run background checks on all gun buyers. Since 1998, this check has been run through the National Instant Criminal Background Check System (NICS), a series of electronic databases operated by the FBI.
- A dealer runs a check on a potential buyer by contacting either the FBI or, in some states, a state “point-of-contact,” by phone or electronically. Operators enter the person’s name into the NICS system and review the person’s criminal records to determine if the person is prohibited from possessing or purchasing guns.
- In the vast majority of cases, operators instruct the dealer within minutes that the sale may proceed (a “green light”) or that the sale is denied (a “red light”). But in a minority of cases (approximately 10.6 percent in 20197FBI, NICS Operations Report, 2019, 21, https://bit.ly/36nWN6X.), operators cannot determine from the available records whether the purchaser is prohibited, and will inform the dealer that the background check is in “delay” status (a “yellow light”). Operators will then pursue further records, including by contacting courts, prosecutors, and law enforcement, to make a determination.
- The loophole in the law allows a gun dealer to complete a “yellow light” sale after three business days even if the background check remains incomplete.818 U.S.C. 922(t)(1)(B)(ii).
- The FBI will contact the gun dealer with a final determination upon completion of the background check. If the FBI determines that the background check should be denied and the gun dealer reports the firearm was sold then the FBI refers that information to the ATF for retrieval of the firearm. Between 2015 and 2019, 20,295 checks were referred to the ATF for firearm retrieval, or an average of 4,059 checks every year.9FBI, NICS Operations Reports 2015–2019, https://bit.ly/36nWN6X. Between 2015 and 2019, 20,295 checks were referred to the ATF for firearm retrieval, or an average of 4,059 checks every year.
- Records recently produced via FOIA show that between January and mid-November 2020, the FBI had flagged nearly 6,000 gun sales to ATF for retrieval.10Everytown Reveals There Were a Record Number of Gun Sales to People Prohibited from Buying in 2020 Because of a Dangerous Loophole, February 4, 2021, https://bit.ly/2NG87ot.
Though 89% of federal background checks are completed in minutes, those that take longer than three business days are 4 times more likely to be denied, meaning that an outsized percentage of delayed buys are actually prohibited purchasers.11FBI, NICS Operations Reports 2015–2019, https://bit.ly/36nWN6X. Of the 76,693 checks that were delayed past three business days and resolved within 90 days annually, 4,059 checks were later found to have resulted in illegal sales—or 5.3 percent. Each year, of the 7,732,373 checks processed by the FBI that were immediately resolved, 102,717 were denied—or 1.3 percent.
- Most delayed background checks are never completed because of an FBI regulation that requires all delayed background check records to be purged from the NICS system within 90 days, regardless of whether they are completed.12Transactions in open status must be destroyed no more than 90 days from the date of inquiry. 28 CFR § 25.9(b)(1)(iiI).
- On average, 284,000 background checks take longer than three business days each year and the FBI is only able to complete 27 percent before their 90-day deadline and purge approximately 200,000 records a year, which makes the number of retrievals reported by the FBI an undercount.13FBI, NICS Operations Reports 2015–2019, https://bit.ly/36nWN6X. Between 2015 and 2019, 1,038,465 checks were unresolved at 90 days and therefore purged from the system, or an average of 207,693 checks every year.
- It is estimated that over 430,000 checks that were initiated in 2020 will be completely wiped from the system before ever being completed.14“Undeniable: How Long-Standing Loopholes in the Background Check System Have Been Exacerbated by COVID-19,” December 10, 2020, https://everytownresearch.org/report/background-check-loopholes/.
Support H.R. 1446, introduced by House Majority Whip James E. Clyburn (D-SC-06), that addresses the Charleston loophole and provides law enforcement with additional time to complete delayed background checks.
- H.R. 1446 extends the initial period from three business days to ten business days.If a background check is not completed within the initial period, a purchaser may request review by certifying that the person is not a prohibited purchaser under state, local or federal law. The FBI will have an additional 10 business days to complete the background check before a sale could proceed under federal law. This additional process enables the FBI to prioritize completing these checks prior to a sale and would reduce the effect of the loophole.