There were over 1 million opportunities for someone to buy a gun from a licensed dealer without a completed background check in 2020 and 2021, according to an FBI report released last month.
In all, 1,002,274 background checks — or 4.2 percent — took longer than three business days in 2020 and 2021, a higher share than any other period since at least 2014, according to data compiled by NBC News. After the third business day, federal law allows dealers to sell weapons while the background check is still pending, which potentially puts weapons in the hands of people who can’t legally own a gun because of mental illness or their criminal history.
The FBI ultimately completed about one-fourth of those delayed background checks and discovered that 11,564 people were able to buy guns in 2020 and 2021 before the check showed that they should not have been allowed to do so, according to the FBI report. Agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives then had to retrieve the weapons.
But that number only accounts for a fraction of the delayed background checks. The FBI never completed 734,604 checks from January 2020 through November 2021, the most recent data available, because they took longer than 88 days — after which the bureau must stop its research and purge the unfinished checks from its system.
Some dealers choose not to sell weapons without a completed check, and many states also have more stringent requirements.
Still, it’s impossible to know how many people who bought guns after an unfinished background check would have been denied had it been completed.
“Every gun sold without a completed background check poses a potential risk,” said Rob Wilcox, federal legal director for the gun control advocacy group Everytown for Gun Safety. “And these staggering numbers show that we have a serious problem.”
Last month, after a mass shooting at an elementary school in Uvalde, Texas, Congress extended the deadline to complete a background check to 10 business days for gun buyers under 21. That gives the FBI more time to block a sale to someone who shouldn’t have a weapon. But the new law also requires a more extensive background check for gun buyers under 21, meaning that officials will have more time but also more to do.
The new law doesn’t change the tight three-day deadline for gun buyers 21 and over.
That deadline, which gun control advocates call the “Charleston loophole,” is how a white supremacist bought the gun he used to kill nine Black worshipers at a church in Charleston, South Carolina, in 2015. The shooter had admitted to drug possession during a prior arrest, which made it illegal for him to buy or own a gun. But his background check was not completed after three days, so he was allowed to buy a gun on the fourth day.
The Rev. Sharon Risher lost her mother, Ethel Lee Lance, 70, in the Charleston attack. Seven years later, she supports the new federal law, but she’s frustrated that it doesn’t do more to address gun violence — including closing the Charleston loophole.
“I will take the crumb. It’s something,” she said. “But this crumb they’re offering does nothing to dent so many laws we need.”
The National Rifle Association opposed extending the timeline for people under 21, raising concerns that the new law “would be interpreted in a manner to prevent the lawful exercise of the Second Amendment right.” The three-business-day window is necessary to make sure the government doesn’t “arbitrarily deny a law-abiding individual’s Second Amendment rights” through bureaucratic delays, the NRA said. The NRA did not respond to a request for comment.
The FBI’s data on background checks is an undercount. It only includes checks processed by the bureau; 19 states run some or all background checks themselves. It also does not cover December 2021, because the FBI finalized the report before those numbers were available.
The FBI said in a statement that it is “unable to speculate on the factors that cause an increase or decrease in unresolved transactions.”
However, the FBI did say it often has to contact outside agencies to locate information that is missing from its databases, which rely on records submitted by tribal, state and local courts and law enforcement agencies. That can lead to delays, the bureau said.
“At times the information is not available or the agency may not respond,” the FBI said in the statement. “This has a direct impact on the amount of unresolved transactions.”
Tom Bush served as assistant director of the FBI Criminal Justice Information Services Division, which operates the gun background check system, from 2005 to 2009. He agreed that the FBI’s information is often incomplete.
“I’m putting it on poor records,” Bush, who now works for an FBI contractor, said of the latest numbers. “We don’t get all the mental health records. We don’t get all the stay away orders, domestic violence type records.”
Many of the arrests in the FBI’s databases also lack a final disposition, Bush said. That means there’s a record that someone was arrested for a crime that could bar them from owning a gun, but there’s no record of what happened afterward — a conviction, a plea deal, or dropped charges.
Without disposition records, the FBI has to contact local law enforcement and courts to learn more — all while the three-business-day clock is ticking. That can be especially hard for older records, which might not be digitized.
The federal government offers some grants to help tribal, state and local agencies feed more records into the system. But much of the cost falls on state and local governments, Bush said.
“If it’s not funded, let’s face it, it’s not going to get done,” Bush said.
An internal FBI report on the Charleston church shooter’s gun background check faulted incomplete records, too. But it also pointed a finger at the FBI’s standard operating procedures, which it said limited how background check examiners could do their research and prioritized background checks that could be resolved in less than three business days. And it said the bureau’s job is “complicated by statutory requirements,” including the 88-day purge window and a policy that requires the FBI to purge records of approved background checks after 24 hours.
Those policies mean the bureau has to “rework” complicated background checks each time the buyer purchases a weapon, the 2015 report said. It also said the policies make it more difficult to investigate people who buy guns for others who can’t pass a background check — a federal crime.
The FBI should “assess the possibility for legislative relief,” the report recommended.
Mark Collins, federal policy and electoral manager at the gun control advocacy group Brady, argues that these problems are an inevitable result of the narrow deadlines written into federal law and regulations.
“This is the natural course that we could expect from the way the NICS is set up because of the way the law is written,” he said, using the official name of the FBI’s gun background check system.
After missing background check records contributed to a 2017 shooting at a church in Sutherland Springs, Texas, that left 27 dead, including the shooter, Congress passed a law that aimed to increase the number of records in the background check system, especially records provided by federal agencies. But it didn’t address the deadlines for processing background checks.
There are some signs the background check system is getting slower, leading to more delays. The share of FBI background checks that take longer than three business days has ticked up from almost 2.8 percent in 2014 to over 4 percent in 2020 and 2021. Both the number and the share of federal background checks the FBI never completes each year has also risen since 2014, data shows.
The number of gun background checks the FBI processes has also been on the rise: almost 23.9 million in 2020 and 2021, according to the recent report, up from 16.4 million in 2018 and 2019.
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