Updated Dec. 4, 1:33 p.m. | The FBI never completes hundreds of thousands of gun background checks each year because of a deadline that requires it to purge them from its computers, despite a report that raised alarms about the practice in 2015.
The data obtained by CQ Roll Call, which has not been previously published, shows how the FBI still struggles to complete background checks four years after a breakdown in the system contributed to a shooting in Charleston, South Carolina, that left nine black churchgoers dead.
A 2015 internal report on what went wrong in that case recommended ways to decrease the number of background checks that take longer than 88 days. After that point, the FBI must purge checks from its computers. That year, the bureau processed more than 8.9 million checks and never completed 200,360. That number rose in 2016 and 2017 before a slight dip last year, when the FBI processed 8.2 million checks but did not complete 201,323.
All told, the FBI did not complete over 1.1 million background checks from 2014 through July 2019.
Since the data is purged, it’s impossible to know how many of those people have purchased guns without a completed background check — or how many purchases would have been blocked if the background checks were complete.
“Based on this data, it would be illogical to argue that Americans are more safe today than they were in 2015,” said W. Mullins McLeod Jr., who represents several families of Charleston victims. The families are suing the federal government over what they say was FBI negligence that allowed shooter Dylann Roof to buy a gun despite a previous drug arrest that should have prohibited him.
The FBI said in a statement that it needs "accurate, complete and timely information" from other law enforcement agencies to complete a background check. Often, the FBI has to request incident reports or other records at the time of a check because they are not already in its databases.
"Sometimes this information is not available, the agency doesn’t respond, or a response is delayed," the bureau said. "The NICS Section continues working the transaction until required by law to purge it from the NICS."
The National Instant Criminal Background Check System, or NICS, is the official term for the gun background check system. It is meant to ensure that people who can’t legally buy a gun — like those convicted of a felony or under a restraining orders — don’t buy one from a licensed dealer. The FBI can usually give the dealer an immediate answer. But it has to delay about 11 percent of sales to do more research.
When that happens, the FBI has two big deadlines to contend with.
The first big deadline is three business days. After that, the dealer can sell the gun without a completed background check, though many large retailers choose not to. This deadline is how Roof got his gun. Last year, 276,000 background checks took longer than three business days. In at least 3,960 of those cases, the FBI later determined that the buyer couldn’t legally own a gun and asked the Bureau of Alcohol, Tobacco, Firearms and Explosives to retrieve the weapon.
The second big deadline is 88 days. After that, federal regulations and FBI policies require the bureau to stop researching a background check and purge the information from its computers.
The newly released data gives the first detailed look at how the FBI struggles to meet that 88-day deadline — information that is not included in the agency’s annual public report on gun background checks. It adds to separate data the FBI released in March on how many background checks exceed the three-business-day deadline.
The internal report on the Roof case found that the bureau focused on background checks it could complete quickly and paid “little attention” to checks that took longer than three business days. Little has changed since then, the newly released data shows. In 2015, almost 74 percent of checks that took longer than three business days were never completed. In 2018, that number was almost 73 percent.
The newly released data also appears to reveal part of a trend that stretches back decades. A 2016 report by the Justice Department’s inspector general found that the FBI did not complete 1.3 million background checks from fiscal 2003 through May 2013 because they hit the 88-day mark.
In a statement, Kris Brown, president of the gun control advocacy group Brady, said the newly released data underscores the need for Congress to lengthen the three-business-day deadline and give the FBI more time to complete background checks.
“These numbers show that there has been no major statistical change — to the positive or negative — of default proceeds being cleared before the end of the NICS review period and records are purged from the system,” Brown said. “We have no way of knowing how many of those records where a background check did not come back resulted in the sale of a gun to someone who was a prohibited purchaser, but if even one did, that is one too many.”
Gun rights advocates have opposed changes to the current law, which they say would put an undue burden on legitimate gun purchasers.
Lawrence Keane, general counsel at the National Shooting Sports Foundation, said the firearms industry has been a strong supporter of getting more records into the background check system. The industry has also supported Justice Department efforts to prosecute illegal gun purchases.
“Firearms retailers rely upon FBI NICS checks to be accurate to ensure that they are not transferring a firearm to a prohibited person,” Keane said in a statement. “This is why the industry is the leading voice advocating for more NICS funding so that it has the necessary resources to complete timely searches and for the States to be able to computerize and submit all disqualifying records to the FBI databases.”
The House passed a bill in February, HR 1112, that would give the FBI more time to complete a background check before a dealer can proceed with a sale. Another measure, HR 8, that also passed the House in February would expand gun background checks to private sales. Connecticut Democrat Christopher S. Murphy tried to get a voice vote in the Senate on HR 8 last month, but Mississippi Republican Cindy Hyde-Smith blocked the move.
Congressional Democrats were in negotiations with the White House over possible gun check legislation for months after a series of recent high-profile mass shootings, but those talks stalled after House Democrats launched their impeachment inquiry.
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