EXCLUSIVE: New data on the massive background check loophole the NRA doesn’t want to fix

The problem keeps getting worse every year, data shows.

A licensed gun dealer does a federal background check for a potential buyer during a gun show in Livingston, Montana. New data shows the FBI could not complete 310,232 federal background checks within the three-business-day deadline last year. CREDIT:  William Campbell/Corbis via Getty Images
A licensed gun dealer does a federal background check for a potential buyer during a gun show in Livingston, Montana. New data shows the FBI could not complete 310,232 federal background checks within the three-business-day deadline last year. CREDIT: William Campbell/Corbis via Getty Images

For at least the fourth year in a row, 2017 saw a rise in the percentage of federal gun background checks that the Federal Bureau of Investigation didn’t finish in three business days — allowing hundreds of thousands of potential gun sales without a completed background check.

According to previously unpublished data obtained by ThinkProgress, last year the FBI didn’t complete 310,232 gun background checks within the three-business-day deadlines set by the Brady Handgun Violence Prevention Act. After that deadline, the law allows a gun dealer to sell a weapon without a completed background check, though dealers can also choose not to make the sale.

Advertisement

In 2017, the FBI did not complete 3.59 percent of the over 8.6 million gun background checks it processed within three business days, according to the new data — up from 3.24 percent in 2016.

It’s not clear how many of those incomplete background checks resulted in an actual gun sale. But according to an FBI report, in 2016 the agency asked the Bureau of Alcohol, Tobacco, Firearms, and Explosives to retrieve 4,170 firearms that dealers sold to prohibited buyers after the FBI failed to complete the check on time. In those cases, the FBI completed the background check after three business days and found that the buyers were prohibited from owning a firearm.

President Donald Trump has proposed $12 million in cuts to a grant program that helps states get more records into the FBI databases used for gun background checks, including records on domestic violence. When the FBI cannot complete a background check on time, it is often because of incomplete state records.

Seventeen states have laws that extend the three-business-day federal deadline or require a completed check, according to the advocacy group Everytown for Gun Safety. A bill introduced by Sen. Richard Blumenthal last October would require a completed background check before a sale can proceed. That bill is still in committee, and the Senate has not taken any action on it since it was introduced.

Advertisement

“These numbers are especially alarming given a gaping loophole in current law that allows dangerous individuals like Charleston mass shooter Dylann Roof to legally purchase firearms if a background check isn’t completed within 72 hours,” Blumenthal told ThinkProgress Tuesday in a statement. “No check, no sale must be the rule.”

The National Rifle Association did not return a request for comment by press time. But in a July 2015 blog post, the organization said that allowing gun sales without a completed background check after three business days is “a critical safety valve in federal law.”

“This provision ensures that Americans’ rights to acquire firearms are not arbitrarily denied because of bureaucratic delays, inefficiencies, or mistakes in identity,” the organization wrote at the time.

As ThinkProgress reported last year, several government reports have shown that gun background checks are often delayed because the buyer has a history of domestic violence that could prohibited them from purchasing a firearm but the FBI’s databases have incomplete records of a conviction. That raises concerns that delayed checks could let guns slip into abusers’ hands.

Gun dealers don’t have to notify the FBI when they proceed with a sale after the three-business-day deadline.

The FBI processed 8.64 million gun background checks in 2017, white the FBI and so-called “point of contact” states that do their own background checks together ran a total of 25.2 million. Those numbers are down dramatically from 2016, when the FBI processed 9.4 million background checks out of a total of 27.5 million — reflecting a drop off in gun sales following the election of Trump, a pro-gun Republican.

Advertisement

Despite the drop in the overall number of background checks, the number the FBI cannot complete in three business days continues to rise every year, the data shows.

When a licensed dealer runs a check, either over the phone or electronically, the FBI usually sends a definite “yes” or “no.” (Federal law does not require a background check for private gun sales.)

In 11.56 percent of federal background checks last year, the FBI could not immediately tell if the potential gun buyer was prohibited . That happens when,  for example, FBI databases have an arrest record but no record of a conviction . In those cases, called a “delay,”  the FBI tells the dealer to wait so it can do more research.

After three business days, the dealer can choose to sell the weapon with or without a completed background check — a “default proceed” sale. If the FBI denies the background check later, it contacts the dealer to see if the sale went through. If so, the FBI asks the Bureau of Alcohol, Tobacco, Firearms, and Explosives to retrieve the weapon. Regulations require the FBI to stop work on delayed background checks after 89 days.

Many gun-safety advocates call the three-business-day deadline the “Charleston loophole” because it’s how a gun wound up in the hands of Dylann Roof, the white supremacist who killed 9 worshipers at a black church in Charleston, South Carolina, in 2015. Roof had admitted to drug possession after a previous arrest, which should have blocked the sale. The FBI’s gun background check databases had a record of Roof’s arrest, but not the admission. A local dealer chose to sell Roof a handgun without a completed background check after the three-business-day deadline passed. The dealer told ThinkProgress last year that it has since changed its policies and does not do “default proceed” sales.