Dylann Roof got the pistol he used to kill nine people in a historic black church in South Carolina without a completed background check because of gaps in FBI databases, legal restrictions on how long the FBI can keep data on gun purchasers and other breakdowns in the system, according to an internal report obtained by CQ Roll Call.
Four years after the 2015 attack at the Emanuel African Methodist Episcopal Church in Charleston — and several more high-profile mass shootings — a bipartisan group of senators is still trying to hammer out a deal with the White House on background check legislation.
Roof, an avowed white supremacist with a history of drug use, obtained a .45-caliber Glock pistol despite a drug arrest that should have blocked the purchase. The FBI began a review of how that happened not long after the shooting.
Recommendations in that 2015 report by the FBI’s Inspection Division included expanding what databases the bureau used for background checks, updating how it requested records from local law enforcement agencies and revising strict internal protocols that the report said hamstrung the process.
The report also said that background checks are “complicated by statutory requirements” and recommended at least three separate times that the bureau “assess the possibility for legislative relief” to help fix the problems.
Perhaps the most alarming revelation in the report is that 172,879 background checks were never completed in 2014 because they took longer than 90 days, a legal deadline after which the FBI has to stop researching and purge the background check from its systems.
That statistic suggests that the number of guns that wind up in the wrong hands each year because of delays in the background check system could be much higher than previously reported.
Because those uncompleted background checks were purged, there’s no way to know how many hundreds or thousands of customers should have been prevented from purchasing a weapon — or if a purchase was made.
It’s not clear whether the number of purged background checks has improved since 2014. The FBI declined on Tuesday to comment on the report or to release more recent data. Instead, it told CQ Roll Call to submit a public records request. The bureau took, on average, 221 working days to process complex records requests in 2018.
“South Carolinians are completely reliant upon the FBI to properly and safely perform background checks at the point of sale,” said W. Mullins McLeod Jr., a lawyer who represents several families of Charleston victims.
Roof had confessed to drug possession months before the Charleston shooting and should not have been able to legally purchase a firearm under federal law. But the FBI didn’t complete his background check within three business days. A provision in the 1994 Brady Handgun Violence Prevention Act allowed the dealer to voluntarily proceed with the sale on the fourth day.
The FBI calls the three-business-day window before a dealer can make a sale without a completed background check the “Brady Transaction Period.” But since 2015, gun control advocates have dubbed it the “Charleston loophole.”
That small percentage had a big impact. The FBI found that, because of delayed background checks, at least 3,960 weapons in 2018 ended up in the hands of people who shouldn’t legally have had them — even though many large retailers won’t sell a gun without a completed check.
The FBI began using an updated computer system in August 2016 that implements many of the 2015 report’s recommendations. It also gave examiners access to a broader FBI database last year, though it still won’t be used for initial background checks.
The percentage of background checks that took longer than three days dropped slightly last year, reversing an upward trend. But the FBI cautioned against reading too much into that.
“The percentage of unresolved transactions for 2018 is consistent with that of prior years based upon each year’s total volume,” agency spokesperson Mike Riley said.
The FBI says it continues researching background checks even after the three-business-day window, but it is required by law to stop research and purge requests after 90 days. There is no way of knowing how many people would have been barred from purchasing a gun if their background checks were completed — or how many purchases were made.
The FBI’s internal report on the Roof case found that the biggest reasons for delays were “untimely responses and/or incomplete records” from the thousands of other law enforcement agencies that feed information into the bureau’s databases.
Ten other issues contributed to delays, according to the report. They included strict standard operating procedures that limited how background check examiners could research a case; a policy of relying on faxes rather than emails or phone calls to request missing records from local law enforcement agencies; and an emphasis on processing new background checks quickly rather than researching delayed checks.
The report also found that background checks “are complicated by statutory requirements, including short data purge windows, and increased Examiner requirements to complete reviews in order to verify prohibitors.”
The report did not recommend expanding the three-business-day window before a sale can proceed without a completed background check, but it did call out two specific policies that it said have made the FBI’s job harder.
The first comes from a Feb. 13, 2002, memo by former Attorney General John Ashcroft that directed the FBI to increase the number of background checks that get an immediate response to approximately 90 percent.
The second policy comes from a 2004 law that requires the FBI to purge information from successful background checks after 24 hours. That essentially means the bureau has to start from square one every time it performs a background check on the same person.
Asked what recommendations it has implemented since the 2015 report, the FBI declined to comment.
Congress tries to weigh in
It’s not clear what would be in a new background check bill, if House Democrats, Senate Republicans and the White House can agree on one.
Congress passed a measure last year as part of the fiscal 2018 appropriations package that aimed at getting more records into the background check databases after another lapse in the system contributed to a mass shooting at a church in Sutherland Springs, Texas, in November 2017. But some agencies have lagged in implementing the new law.
A bill passed by the House in February would lengthen the three-business-day window for gun background checks. A companion measure that also passed the House would extend mandatory background checks to private gun sales.
Jonas Oransky, legal director at the advocacy group Everytown for Gun Safety called the three-business-day window “a particularly ridiculous problem in the law.”
“There is no way to expect, reasonably, that the FBI can complete all of these background checks in three business days,” he said.
Many gun rights groups disagree.
Larry Keane is general counsel at the National Shooting Sports Foundation, the firearms industry’s trade group. He pointed to its efforts to improve state laws for getting mental health records into the background check system.
“We want the background check system to work the way it’s suppose to, the way politicians have promised the American people and the firearms industry, retailers, that it’s suppose to,” Keane said. “And it’s the firearms industry that’s helped make that happen — nobody else.”
Other background check measures are on the table, but none have come up for a vote yet. One introduced in March by Pennsylvania GOP Sen. Patrick J. Toomey would notify local law enforcement when a prohibited person tries to buy a firearm. Another introduced in April by South Carolina GOP Rep. Tom Rice would expand the databases that the FBI can use when it performs an initial background check.
Current negotiations are being lead by Democratic Sens. Joe Manchin III of West Virginia and Christopher S. Murphy of Connecticut, and Toomey. President Donald Trump has said that House Democrats’ impeachment inquiry may scuttle the delicate negotiations, but the senators have vowed to press on.