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Gun Policy

One Year Later, and the Loophole That Let the Charleston Shooter Buy His Gun Remains Wide Open

Proposed fixes on the state and federal level have been thwarted by a mix of NRA opposition and legislative indifference.

Two months before Dylann Roof gunned down nine people at Mother Emanuel AME Church in Charleston, South Carolina, he went to buy a .45-caliber Glock pistol at a gun store in a rundown strip mall. The 21-year-old should have been barred from purchasing the gun due to an earlier drug arrest. But the sale went through because of a loophole in the National Criminal Background Check System, or NICS, the FBI later said.

Roof was able to buy the weapon after the investigator assigned to complete his background check wasn’t able to find his police record, which contained a confession for drug possession. Under federal law, NICS has three business days to finish vetting a gun buyer, or the sale can proceed. When the deadline expired with his background check still incomplete, Roof got his gun.

Last summer, the story of Roof’s dead-end background check helped expose a loophole that annually allows upwards of 3,000 persons deemed too risky to own a gun to acquire a firearm via so-called “default proceed” sales. 

This Friday marks the one-year anniversary of the shooting at Emanuel AME. Federal legislation that would close what is now known as the “Charleston loophole” has gone nowhere. To date, the bill has not even received a hearing.

On Monday, a day after another gunman shot and killed 49 people in an Orlando, Florida, nightclub, South Carolina Representative James Clyburn who introduced an effort to address default proceed sales in Congress and other Democrats protested the lack of action on that bill and other gun reform measures, punctuating a customary moment of silence by chanting “where’s the bill” from the House floor.

Two measures before the South Carolina legislature that would address the loophole also haven’t received a hearing. The proposals have been met with indifference from lawmakers who say they believe the background check system isn’t in need of reform — and fierce opposition from the National Rifle Association.

“In our state, the NRA is God,” Gilda Cobb-Hunter, a South Carolina Democratic legislator, tells The Trace. “Everyone is concerned about their NRA rating.”

Soon after the FBI acknowledged how Roof had bought the weapon, lawmakers vowed to address the issue. On the forefront was a proposal from state Senator Marlon Kimpson, a Democrat whose district contains the Emanuel church. He filed his initial legislation before the start of the regular legislative session in January.

Kimpson’s measure would not allow a gun sale to go forward without a completed background check. He also signed on to co-sponsor a separate bill introduced by another Democratic senator that would have narrowed the loophole by pushing the federally required three-day investigation period out to 28 days before a gun could be sold without a conclusive background check.

“I’m willing to compromise and work hard toward getting something meaningful,” Kimpson says. “Either one of them I could live with.”

In the state senate, Kimpson hoped Judiciary Chairman Larry Martin, who had been amenable to some moderate gun reform measures in the past, would agree to hearings. Martin is an NRA-endorsed conservative who faced three challengers in a primary on Tuesday.

Martin was viewed as potentially more favorable to the loophole issue than his counterpart in the House, Greg Delleney. “The feds dropped the ball,” said Delleney, referring to the clerical errors that figured in Roof’s default proceed sale. “There’s really no Charleston loophole.”

Yet Martin refused to hold hearings. “I’m not going to spend a lot of time on an issue that can’t pass and shouldn’t pass,” he told The Trace in May.

Martin softened his position somewhat after the legislative session ended in early June. “In fairness, I probably should’ve dealt with the ‘Charleston loophole’ because it’s a pretty sensitive topic,”he told the Post and Courier.

But he says he still ultimately viewed any effort to address the loophole this year as a dead end, noting that the NRA’s opposition to the measure assured its failure.

Martin says that the gun lobby has expressed concerns that the federal government would exploit its newfound authority to hold up sales to block purchases by law-abiding citizens.

“The biggest fear is what [President Barack] Obama or a President [Hillary] Clinton would do with an executive order that you don’t issue an all clear on any background check until the 11th hour,” says Martin. “To be quite frank with you, I don’t think that fear is unfounded.”

Larry Grooms, a Charleston-area Republican, said in an interview with The Trace that Martin and other lawmakers recognized a political reality: After the confederate flag came down at the South Carolina statehouse, many felt that the most contentious issue raised by the shooting had been dealt with, and that no further legislation was needed.

“He might as well have introduced a bill to ban the Second Amendment, that’s how it would have been viewed by some of his opponents,” Grooms said of Martin’s decision not to hold hearings.

Kimpson hoped to force the issue by blocking pro-gun measures that had already passed in the South Carolina House. He successfully killed bills that sought to nullify all federal law pertaining to guns and another that would allow people to carry a concealed weapon without a permit.  

In the end, Kimpson dropped opposition to one NRA-backed bill that allows concealed weapons permits from Georgia to be recognized in the state in exchange for promised hearings on the Charleston loophole this summer.

He is holding onto hope that he can use that chit, coupled with the tactic of stalling pro-gun measures, to get a bill closing the loophole passed in the next session.

At least 15 states and the District of Columbia have laws that delay or bar a gun sale while a background check remains pending, and some national gun sellers — Walmart is the most prominent — voluntarily hold off on completing transactions until the background check system gives a firearms buyer the all-clear.

As part of the slate of executive actions on gun violence enacted by President Obama in January, the White House directed the FBI to hire 230 new investigators for the NICS system, an increase of 50 percent that is intended to ease the strain experienced by existing staff as gun sales have boomed during his administration. The additional personnel could increase the likelihood that crucial records on prospective gun buyers whose background checks — like Roof’s — raised initial flags can be tracked down. But without congressional action to extend the cutoff, guns will still wind up in the hands of people deemed too dangerous to own them.

In some instances, after a sale goes through while a background check remains in progress, the investigator assigned to the case will later determine that the buyer was prohibited from buying a firearm, and law enforcement agents will be dispatched to take the weapon away. Statistics from those cases suggests that closing the default proceed loophole may bring particular safety benefits for the victims of domestic abuse.

Chelsea Parsons at the Center for American Progress points to a 2014 study by her organization that found that 34 percent of the guns subsequently retrieved in default proceed sales had been purchased by individuals who were prohibited from owning a gun because of a domestic violence conviction or restraining order. Separate research by Mayors Against Illegal Guns (a forerunner to Everytown for Gun Safety, which has provided seed funding to The Trace) indicated that default proceed transactions are eight times more likely to involve prohibited gun buyers than other background checks. 

“These cases often require more time to complete the background check than just three days,” says Parsons.

Kimpson notes that his colleagues in the state legislature have come together to pass other hot-button bills in the wake of tragedy. In addition to the vote last summer to remove the confederate flag from the state house grounds, for instance, the legislature also passed a controversial body cameras bill after the shooting of Walter Scott by a police officer last April.

“My goal,” Simpson says, “is to move the ball on these issues before another tragedy occurs.”

[Photo: Stephen B. Morton/ AP Photo]