EXCLUSIVE: In 2016, the FBI allowed 300,000 gun sales before completing a background check

New data from the FBI reveals the problem is only getting worse.

In this Jan. 5, 2017, file photo, Nathan Williams, 37, of Albuquerque, New Mexico, attends to customers at The Outdoorsman gun shop in Santa Fe. Data obtained by ThinkProgress underscores continued problems with the FBI background check system used by federally-licensed firearms dealers in many states. (Morgan Lee/AP)
In this Jan. 5, 2017, file photo, Nathan Williams, 37, of Albuquerque, New Mexico, attends to customers at The Outdoorsman gun shop in Santa Fe. Data obtained by ThinkProgress underscores continued problems with the FBI background check system used by federally-licensed firearms dealers in many states. (Morgan Lee/AP)

Dylann Storm Roof was flush with cash from his 21st birthday when he walked into Shooter’s Choice, a gun store in the small town of West Columbia, South Carolina, on April 11, 2015. He was there to buy himself a handgun.

The FBI delayed the sale, saying it needed more time to complete a background check after seeing his arrest for drug possession. Roof had admitted to the charge, which should have kept him from purchasing a firearm.

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But the FBI examiner doing Roof’s background check couldn’t get records on that case’s final disposition within three business days. That triggered a loophole in the Brady Bill that allows dealers to sell a firearm without a completed background check, if they choose to — a “default proceed” sale.

The agency calls these sales “default proceeds,” but many gun-safety advocates call it the “Charleston loophole.”

And so, a few days later, Roof walked out of Shooter’s Choice with a .45-caliber Glock 41 Gen4 handgun. Two months later, he used it to shoot and kill nine black churchgoers after a Bible study at a historic black church in Charleston.

In that wake of the shooting, then–FBI Director James Comey ordered a review of why the FBI couldn’t complete Roof’s background check within the three-business-day deadline. Speaking to reporters at FBI headquarters in Washington, D.C., that July, he said that he wanted to find out how, in the future, the agency could complete more background checks on time.

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Despite promises to fix the system, however, new data the FBI shared with ThinkProgress shows that there were more than 300,000 default proceeds in 2016. Of all background checks performed that year, 3.24 percent resulted in default proceeds. That figure is up from 3.02 percent in 2015 and 2.76 percent in 2014.

Gun dealers don’t have to notify the FBI when they proceed with a sale after the three-business-day deadline, so it’s unclear how many of those default proceeds resulted in an actual sale without a background check.

Government data also shows that many of these cases are associated with misdemeanor domestic violence charges. States do not always share related records, and often domestic violence charges aren’t easily identifiable in FBI databases. That raises concerns that firearms could get into the hands of convicted abusers.

The process

Federal law requires a background check for all gun sales by licensed dealers —private sales are, controversially, exempt from background checks in most states—to make sure the buyer isn’t prohibited from owning a weapon. Twelve states do their own background checks for all sales by licensed dealers. For the rest, some or all checks go through the FBI’s National Instant Criminal Background Check System, or NICS.

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The FBI gave an immediate yes or no to 88.64 percent of background checks it conducted last year, according to data the agency shared with ThinkProgress. When the agency can’t immediately tell if a gun buyer is prohibited — for example, if its databases have an arrest record but no record of a conviction — FBI examiners delay the sale to do more research.

After three business days, however, the gun dealer can proceed with the sale whether or not the FBI has completed its background check. The agency calls these sales “default proceeds,” but many gun-safety advocates call it the “Charleston loophole.”

If the FBI determines the buyer is prohibited from owning a firearm after the three-business-day deadline passes, it contacts the dealer to see if it sold the weapon. If so, it transfers the case to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF, which attempts to retrieve the weapon.

After 89 days, Department of Justice regulations require the FBI to stop work on open background checks and purge them from NICS. That happened around 1.3 million times from fiscal year 2003 to May 2013, according to a 2016 audit of NICS by the Department of Justice inspector general’s office.

A growing problem, linked to domestic violence

The FBI processed 9.3 million background checks last year, according to data it shared with ThinkProgress. It delayed more than 1 million of those, and there were 303,146 default proceeds. Those numbers are all up from 2015, when the FBI processed 8.9 million background checks and delayed 900,567, with 271,359 default proceeds.

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By comparison, NICS had just 84,520 default proceeds in 2003–1.93 percent of all background checks that year, according to a 2004 report by the DOJ inspector general.

Default proceeds are more than eight times as likely to involve a prohibited purchaser than background checks completed within the three-business-day deadline, according to FBI data released to former New York City Mayor Michael Bloomberg in 2008 and cited in a 2009 report by the advocacy group Mayors Against Illegal Guns. (ThinkProgress has not been able to obtain a copy of the letter to independently verify it.)

Default proceed sales are also disproportionately associated with domestic violence. Federal law prohibits people convicted of a misdemeanor crime of domestic violence from buying or possessing a firearm. In 2003, domestic violence conviction was the top reason that the FBI had to refer gun purchases to ATF for retrieval, according to a 2004 report by the DOJ inspector general. Combined with referrals because of a domestic violence restraining order, it accounted for 34.1 percent of all referrals that year — 1,227 individual cases in which a gun got into the hands of a convicted or accused abuser.

“There are four and a half million women alive in America right now who’ve been threatened with a gun by their intimate partner.”

A report by the Government Accountability Office last year backed up those findings. The report found that it takes the FBI longer to complete background checks for domestic violence convictions than for other prohibitors. Delayed denials put firearms in the hands of about 6,700 people convicted of domestic violence from FY 2006–2015, the report found.

Those numbers declined sharply from FY 2006–2008, according to the report. Since then, there have been between 520 and 670 transfers to convicted domestic abusers a year due to a delayed denial.

For victims facing abuse, those guns can have terrible consequences. Aside from homicide, abusers often use a firearm to threaten, terrorize, and injure, according to Cecily Wallman-Stokes, deputy research director at the advocacy group Everytown for Gun Safety.

“There is just an overwhelming body of evidence showing how important it is to keep firearms out of the hands of abusers,” Wallman-Stokes told ThinkProgress. “There are four and a half million women alive in America right now who’ve been threatened with a gun by their intimate partner.”

The FBI has known about these problems for a long time

Default proceed sales have been part of NICS since the system launched in late 1998, and FBI records suggest they’ve been a problem from the very beginning. In its first operations report for the newly launched system, the FBI listed “more time to complete checks when records are not electronically available” as the first of five changes it could make to help keep weapons away from prohibited people.

The report also argued against shortening the deadline from three business days to 24 or 48 hours. (The Brady Bill amendment that created the three-day deadline originally set it at just one business day.) “Reducing the time limit for checks from three business days to lesser periods, such as 48 hours or 24 hours, would mean a corresponding decrease in the ability of the NICS to prevent unlawful purchases,” the report said.

In an audit of the NICS system published last year, the DOJ inspector general found ongoing problems with processing background checks within the three-business-day deadline, among other issues.

“Although we found the overall FBI error rate was exceedingly low, even an isolated NICS process breakdown can have tragic consequences, as evidenced by the June 2015 fatal shooting at a Charleston, South Carolina church, where the NICS process, with timely and accurate data from local agencies, could have prevented the alleged shooter from purchasing the gun he allegedly used,” the report said.

Clawing back guns that shouldn’t have been sold in the first place

The problems haven’t been limited to the FBI. In NICS’s first year, ATF received 3,353 referrals from the FBI for “delayed denial” cases, according to a 2000 report by the Government Accountability Office.

In those cases, ATF is tasked with retrieving the weapon from the purchaser if the dealer proceeded with the sale. But the agency had only retrieved 442 weapons as of Sept. 30, 1999, and an inter-agency task force had to work through the backlog.

“The Bureau of Alcohol, Tobacco, Firearms, and Explosives remains incredibly understaffed, with fewer agents than the Broward County sheriff’s office.”

A DOJ inspector general’s report in 2004 and a GAO report in 2014 highlighted continued problems with ATF’s recovery of guns sold to prohibited buyers after the three-day deadline, including cases where it took months to recover a weapon and technical problems that kept ATF from tracking the timeliness and outcome of recovery operations.

ATF has solved many of those issues, changing its computer systems to allow managers to more closely monitor delayed denial investigations, for example, and implementing recommendations from a 2004 DOJ inspector general’s report, according to an audit of the NICS system by the DOJ inspector general last year.

But the increasing number of delayed denials — from 3,353 in 1998–1999 to 6,610 in 2014, according to data the FBI shared with ThinkProgress — still threatens to strain agency resources, according to former ATF Special Agent David Chipman, now a senior policy advisor at the advocacy group Americans for Responsible Solutions.

“The Bureau of Alcohol, Tobacco, Firearms, and Explosives remains incredibly understaffed, with fewer agents than the Broward County sheriff’s office,” Chipman told ThinkProgress in an email. “Instead of spending valuable ATF resources on recovering weapons from prohibited individuals, Congress should give our federal law enforcement agencies the resources and tools they need to proactively stop these dangerous individuals from getting guns in the first place.”

The FBI does not know how many delayed denials NICS had in 2015 and 2016, spokesperson Stephen Fischer Jr. told ThinkProgress, because of a change in its computer systems. Department of Justice spokesperson Amanda Hils declined to say how many times the FBI referred a delayed denial to ATF for recovery of the weapon from 2014 to 2016, saying ThinkProgress would have to file a public records request for the data.

Reforms are slow—and increasingly politicized

After the Charleston shooting, former FBI Director James Comey ordered a review of what went wrong with Dylann Roof’s background check. The agency declined ThinkProgress’s request to voluntarily release that review, but it did share a partial transcript of a meeting with reporters in October 2015 during which Comey summarized its findings.

The FBI needed to automate parts of the NICS process and better deploy staff to reduce the number of delayed background checks, he explained, and work with state and local agencies to get more records in the NICS databases.

ThinkProgress has filed a Freedom of Information Act request for the full review. The DOJ inspector general’s audit of NICS last year echoed its recommendations and gave more details on its findings.

The review largely attributed the delay in Roof’s background to “untimely responses and incomplete records” from local and state agencies, according to the DOJ audit. It also suggested that FBI give NICS staff access to a broader FBI database that had more complete records on Roof. However, the FBI told the inspector general’s office that would require special approval and a change in DOJ regulations.

In its own findings, the inspector general pressed the FBI to take three broad steps: (1) develop a follow-up process to make sure delayed background checks move through the system, (2) look into connecting NICS to more databases, and (3) find ways to encourage states to provide more complete records.

The FBI agreed with those recommendations, but it hasn’t given the inspector general’s office evidence that it completed them.

In FY 2012, an outside contractor began developing “New NICS” for the FBI — updated software and hardware designed to provide quicker background checks 24/7. The agency implemented the first phase in August 2016, according to spokesperson Stephen Fischer Jr. It includes the ability to automatically follow up with state and local agencies that don’t respond to the FBI’s first request for records — as in the case of Dylann Roof.

“The New NICS, initially implemented in August 2016, delivered capabilities that allow the system to quickly know when information a.) has been received from an external agency so that it may be prioritized and handled in a timely manner and b.) has not been received from an external agency within a designated period of time for the system to automatically resend a request,” Fischer told ThinkProgress in an email.

Despite the technology upgrades, the FBI has largely relied on “significant amounts of overtime” to keep up with the growing number of gun background checks, according to its FY 2018 budget request to Congress. To fix that, the agency is requesting $8.9 million to keep 85 full-time examiners.

“Without these personnel, the FBI’s ability to effectively conduct the statutorily mandated firearm background checks conducted by the National Instant Criminal Background Check System (NICS) Section within the mandated three day timeframe could be compromised,” the budget request said.

While the FBI has worked to make NICS more efficient, several Democratic lawmakers want to rewrite the Brady Bill to stop dealers from selling a firearm without a completed background check. Sen. Richard Blumenthal (D-CT) introduced legislation in 2015 that he plans to re-introduce this year. Reps. James Clyburn (D-SC) and Kelly Robin (D-IL) introduced two similar bills in the House last session.

Seventeen states also have legislation that either extends the three-business-day federal deadline or requires a completed check before a dealer can sell a weapon, according to Everytown for Gun Safety. Last year, for example, Delaware passed a bill that extends the deadline for a background check to 25 days.

Still, gun-safety advocates continue to press for federal action that would close the loophole nationwide.

“No background check, no gun, is a rule that can help save lives,” Blumenthal told ThinkProgress in a statement.

“Congress should act to close the Charleston Loophole, and my legislation does just that,” Clyburn told ThinkProgress through a spokesperson.

The National Rifle Association declined to comment on the record for this story, but the organization praised default proceeds in a July 2015 blog post responding to Clyburn’s bill.

“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. The NRA called default proceeds “a critical safety valve in federal law.”

Gun-safety advocates have also tried to change individual store policies. In a deal with Mayors Against Illegal Guns, Walmart voluntarily agreed in 2008 not to sell firearms without a definitive yes from a background check. However, many large retailers and small, local dealers continue to sell firearms to customers without a completed background check.

In 2015, Blumenthal and fellow Connecticut Democrat Sen. Chris Murphy, joined by 11 other senators, sent a letter to Cabela’s, EZ Pawn, and Bass Pro Shops—three major gun dealers that engage in default proceed sales—asking them to voluntarily stop the practice. They never got any response from those companies, according to Blumenthal’s office.

Since Charleston, however, at least one gun dealer has adopted a policy of not making a sale without a completed background check. Reached by phone, an employee at Shooter’s Choice, where Roof bought his weapon, told ThinkProgress the store adopted the new policy after the shooting.

“We didn’t [have that policy then],” said the employee, who declined to give his name, “but we do now.”