The Charleston Shooting, NICS Background Checks, and Default Proceeds

July 10, 2015

Bottom Line: Federal law requires that licensed gun dealers run criminal background checks on all potential gun buyers. But due to a National Rifle Association-backed provision added to the 1993 Brady Bill, the law allows sales to proceed after three business days—even if background check operators have not confirmed the buyer is legally allowed to have guns.

  • On July 10, 2015, the FBI said the Charleston shooter was able to purchase the gun he used in the shooting because this “default proceed” period had elapsed—and the dealer made the sale even though the background check was not complete.
  • In the last five years, gun dealers have gone forward with more than 15,000 gun sales to prohibited people because a background check could not be completed within the default period.

Due to a National Rifle Association-backed provision added to the 1993 Brady Bill, federal law allows sales to proceed once three business days have elapsed.Brady Handgun Violence Prevention Act: Hearing on H.R. 1025 Before the H. Comm. On the Judiciary, 103rd Cong. 127-172 (1993)(statement of Richard Gardiner, Legis. Counsel, Inst. for Legis. Action, Nat’l Rifle Ass’n of America).

  • Federal law requires that licensed gun dealers run background checks on all gun buyers through the National Instant Criminal Background Check System (NICS), a series of electronic databases operated by the FBI.
  • When a dealer runs a check on a potential buyer, he contacts either the FBI or, in some states, a state “point-of-contact”, either 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”).
    • Since its inception, the background check system has blocked more than 2.4 million gun sales to criminals and other dangerous people.The FBI releases a monthly report of Federal denials nationwide but does not publicly release data for individual states or over time. Between the inception of the NICS system in 1998 and December 31, 2014, 1,509,050 gun sales were federally denied. In addition, between 1998 and 2010, state and local agencies issued a total of 945,915 denials, and it is estimated they have issued 225,000 denials in the three years since data was last released (http://1.usa.gov/Z8vYsa). Thus, a total of more than 2.4 million federal and state denials have been made since the NICS system was implemented.
  • In a small minority of cases (approximately 9 percent in 2014FBI, NICS Operations Report, 2014), 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 in order to make a determination, including by contacting courts, prosecutors, and law enforcement.
  • Operators will continue to research the case until a definitive conclusion is made — but federal law allows the dealer to proceed with the sale after three business days, regardless of whether the investigation is complete.

According to FBI Director James Comey, the Charleston shooter was able to purchase the gun he used in the massacre because of the “default proceed” law.

  • The director said that the background check was initiated on April 11, 2015, and the sale went forward by default after three business days—even though the background check was incomplete. Comey said, “By Thursday, April 16, the case was still listed as delayed-pending, so the gun dealer exercised its lawful discretion and transferred the gun to” the shooter.http://usat.ly/1Gcvrsi

FBI data shows that the default proceed provision has resulted in gun sales to more than 15,000 prohibited people in a five-year period.

  • From 2010 through 2014, gun dealers have gone forward with 15,729 gun sales to prohibited people because a background check could not be completed within three business days.In 2010, FBI referred 2,955 denials to ATF for firearm retrieval actions because the sale was denied after the three-business-day period. 3,166 such referrals were made in 2011; 3,722 in 2012; 3,375 in 2013; and 2,511 in 2014. FBI, NICS Operations Reports, 2010-2014
  • FBI and the Department of Justice have recommended that the three-day time period be extended to minimize the number of gun sales that proceed by default.target="blank>http://1.usa.gov/1LWArZc

Dealers can decide not to allow sales to proceed even though the “default proceed” period has elapsed.

  • In 2008, Walmart voluntarily agreed with Mayors Against Illegal Guns to adopt several policies to ensure their gun sales were safely conducted. Among those policies, Walmart agreed its retailers would not transfer firearms without final background check results—even if the three-day period has elapsed.http://abcn.ws/1NZ8UFB

At least 15 states and Washington, DC give authorities longer than three days to complete a background check before allowing dealers to complete a sale.California: Cal. Pen. Code § 28220(f); Colorado: C.R.S. § 24-33.5-424(3)(b); Connecticut: Conn. Gen. Stat. § 29-36g(a), Conn. Gen. Stat. § 39-37q, Conn. Gen. Stat. § 29-28a; District of Columbia: D.C. Code § 7-2502.07(b); Hawaii: H.R.S. § 134-2(e); Illinois: 430 ILCS § 65/5; Maryland: Md. Public Safety Code Ann. § 5-117.1(h); Massachusetts: ALM GL ch. 140, §§ 129B, 131; Minnesota: Minn. Stat. § 624.7132 subd. 4; New Jersey: N.J. Stat. § 2C:58-3(f); New York: N.Y. Penal Law § 400.00(4-a); North Carolina: N.C. Gen. Stat. § 14-404(f); Rhode Island: R.I. Gen. Laws §§ 11-47-35(a)(1), 35.2(a); Tennessee: Tenn. Code Ann. § 39-17-1316(o); Utah: Utah Code Ann. § 76-10-526(5); Washington: Rev. Code Wash. (ARCW) § 9.41.092. For example:

  • In Utah, gun dealers may not transfer a gun to a buyer until the background check is complete.Utah Code Ann. § 76-10-526(5)
  • Under Tennessee law, authorities deny sales to people if there is a “yellow light.” If the potential buyer appeals the denial, authorities have 15 days to determine if the person is eligible to possess a gun. At the end of 15 days, if there is still no disposition, the dealer may transfer the gun.Tenn. Code Ann. § 39-17-1316(o)
  • Similarly, in Colorado authorities deny sales to people based on an arrest for a potentially prohibiting crime if the final disposition in is not available. If the prospective buyer appeals the denial, authorities have 30 days to determine if the person is eligible to possess a gun.C.R.S. § 24-33.5-424(3)(b)
  • Under North Carolina law, authorities have 14 days to make the determination of whether a potential gun purchaser is eligible to possess a handgun.In North Carolina, a permit is required to purchase a handgun. Issuers must run background checks on all applicants, and they have 14 days to make the determination of whether the applicant is eligible to possess a handgun. N.C. Gen. Stat. § 14-404(f).
  • Under California law, dealers must wait 30 days before selling a gun if the background check operators have not resolved certain delayed investigations.Cal. Pen. Code § 28220(f)

Charleston Shooting