How COVID-19 Has Made a Federal Background Check Loophole Even Deadlier

COVID-19 fears have led to record-breaking gun sales

According to FBI data, March 2020 set the all-time record for the number of National Instant Criminal Background Check System (NICS) background checks since the creation of the system over 20 years ago. ¹FBI, NICS Firearm Checks: Month/Year, https://bit.ly/3eldbXB. These checks are associated with the purchase of approximately 2 million handguns and long guns in March 2020. After the announcement of federal social distancing guidelines in mid-March,²CDC, “Resources for Large Community Events & Mass Gatherings,” March 16, 2020, https://bit.ly/39pffu6. Americans rushed the gun stores. The five days that followed all made the list of the most background checks in a single day, ever—no other year has more than one day in the top 10, let alone five in one week.³FBI, NICS Firearm Checks: Top 10 Highest Days/Weeks, https://bit.ly/2Rsk3J8. By the end of March, NICS saw 3.7 million background check requests, 1.1 million more than the same month last year.⁴FBI, NICS Firearm Checks: Month/Year, https://bit.ly/3eldbXB.

Federal loopholes let prohibited gun purchasers slip through the cracks

The surge in gun sales puts a massive strain on the system and increases the risk that people who should be denied a gun slip through the cracks. While federal law requires licensed gun dealers to run background checks on all prospective gun buyers, due to an NRA-backed background check loophole in the 1993 Brady Bill, gun sales can proceed by default after three business days—even without a completed background check. Each year, this loophole, known as a “default proceed” or the “Charleston loophole,”⁵This loophole enabled the shooter at Emanuel AME Church in Charleston, SC to obtain the firearm he used to kill 9 churchgoers on June 17, 2015. The shooter, who was prohibited from possessing firearms, was able to purchase the gun because the 3-day period had elapsed, and the dealer legally made the sale without a completed background check. In 2019, the US House of Representatives passed bipartisan legislation that would address this loophole, but the Senate has thus far refused to put it up for a vote.  puts thousands of firearms in the hands of people who are legally prohibited from possessing them.⁶FBI, NICS Operations Reports 2014–2018, https://bit.ly/2VgErOd. In an average year, 3,963 firearms are transferred to people who are prohibited purchasers.

While most background checks are completed on the spot, typically 10 percent of all federal checks—1.2 million of the 3.7 million in March—require additional time and 3 percent are delayed longer than three days. That translates to at least 35,000 potential “default proceeds” during the March gun-buying frenzy alone.⁷Joshua Eaton, “FBI Never Completes Hundreds of Thousands of Gun Checks,” Roll Call, December 3, 2019, https://bit.ly/2UEdsNM. According to provided data, there were 43,464,647 federal NICS checks NICS between 2014 and 2018. Approximately 10% of all federal checks (4,639,397) were delayed beyond “immediate,” and an estimated 30% of these delayed transactions result in a default proceed. At least 523 were transferred to prohibited persons and, of those, close to a quarter went to prohibited domestic abusers.⁸Ibid. Between 2014 and 2018, approximately 30% of checks delayed more than three business days were resolved before being purged and in 5% of those transactions, firearms had been transferred to prohibited persons. Between 2017 and 2018, 8,824 firearms were transferred to prohibited purchasers, 22% of which went to domestic abusers. Given constrained government resources in a state of emergency, these figures are likely much higher.

As experts warn that COVID-19 sheltering in place may exacerbate domestic violence risk, another background check loophole is at play: the boyfriend loophole. Federal law only prohibits domestic abusers from buying a gun if they were specifically married to, shared a home with, or shared a child with their victim. In part because investigators have to determine this relationship, background checks that turn up domestic violence convictions typically take longer to complete than other checks.⁹From 2006 to 2015, 30% of NICS denials for misdemeanor crimes of domestic abuse took longer than 3 business days to determine, meaning that, during that time, licensed dealers were legally authorized under federal law to transfer guns to 18,000 prohibited persons. US GAO, “Gun Control: Analyzing Available Data Could Help Improve Background Checks Involving Domestic Violence Records,” July 2016, https://bit.ly/2CkTs94.

A delay, particularly one longer than three days, is a strong indication that the potential buyer may ultimately turn out to be prohibited from having guns. In fact, background checks that take longer than three days are four times more likely to result in a denial.¹⁰Joshua Eaton, “FBI Never Completes Hundreds of Thousands of Gun Checks.” Of all NICS federal checks between 2014 and 2018, 1.2% were denied, and of checks that were delayed beyond 3 business days, 5.1% were denied. On top of that, FBI regulations require that all delayed background check records must be purged from the system within 90 days, completed or not.¹¹28 CFR § 25.9(b)(1)(ii). Each year, hundreds of thousands of delayed background checks are deleted before they are ever completed.¹²Joshua Eaton, “FBI Never Completes Hundreds of Thousands of Gun Checks.” Of all NICS federal checks between 2014 and 2018, approximately 200,000 checks were purged by the FBI each year.

Surges in gun buying, coupled with dangerous background check loopholes that put guns in the hands of those who shouldn’t have them, create a perfect storm to worsen our already dire public health crisis.

What lawmakers can do right now

Give investigators enough time to complete background checks
Federal and state elected leaders should take action to extend the time investigators have to complete background checks to ensure that no firearm is sold without one.¹³19 states (CA, CO, CT, DE, DC, FL, HI, IL, MA, MD, MN, NC, NJ, NY, PA, RI, TN, UT, WA, WI) and DC have already addressed this background check loophole. Governors can also consider taking temporary emergency actions to address this crisis immediately. Most recently, Rhode Island’s governor took temporary emergency action as part of the state’s COVID-19 response to extend the background check window from seven to 30 days.¹⁴Rhode Island Executive Order 20-07, March 20, 2020. https://bit.ly/2V5SwiT.

Keep records of delayed background checks until they’re complete
Congress should ensure that the FBI maintains records of delayed background checks for as long as it takes to complete each check. Especially amid the COVID-19 surge in gun sales, law enforcement should not be deleting background check records before they are completed.