A well-known flaw in the FBI’s background check system allowed thousands of convicted domestic abusers to buy guns from licensed dealers in the last decade, a new report from the Government Accountability Office finds.
Between 2006 and 2015, the National Instant Criminal Background Check System denied 89,000 individuals with misdemeanor domestic violence convictions or restraining orders from purchasing a firearm, according to the report. But in 23 percent of those cases, the FBI was unable to complete the background check within three business days, the time the agency is allotted under federal law. These sales were allowed to go through under the “default proceed” rule.
As a result, in 6,780 cases, a convicted domestic abuser left a dealer with a gun.
Most of these buyers — 6,221 — had been convicted of a domestic violence misdemeanor. An additional 559 were subject to a protective order. Notably, the report did not examine failed background checks for individuals convicted of felony domestic violence.
Since 1998, when NICS was enacted, people with domestic violence misdemeanor convictions or protective orders have been denied a gun purchase more than 160,000 times.
The FBI completes all background checks, even if a default proceed sale has occurred. If the buyer is determined to be prohibited from gun ownership, the agency refers the case to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, which is then supposed to track down the buyer and collect the gun. It’s not clear how many retrievals actually happen, or in what timeframe. Agency data from 2001 to 2014 indicates that the agency retrieves about 3,000 guns a year.
Dylann Roof bought a Glock last year after the FBI was unable to complete his background check within the three-day limit. Roof had admitted to possession of a controlled substance following a drug arrest several months earlier, and if that had been detected in time, it would have blocked the sale. On June 17, he gunned down nine parishioners at a historically black church in Charleston, South Carolina.
More than a year after the shooting, as The Trace has reported, federal legislation to close the loophole has floundered. Two bills before the South Carolina legislature have been met with similar indifference.
The GAO report did not examine whether any of the convicted domestic abusers who were allowed to buy a firearm because of the default proceed loophole went on to commit a crime with the gun.
Since 2008, Walmart, the nation’s largest gun retailer, has refused to complete default proceed sales.
Connie Neal, the executive director at New York State Coalition Against Domestic Violence, tells The Trace that she was “dismayed” to learn that so many people who should not possess guns were allowed to purchase them. Because the presence of guns in a domestic violence situation has been found to dramatically increase the risk of intimate partner homicide, she says, sending complete records to NICS in a timely manner “saves lives.”
The FBI sets a goal of completing 90 percent of background checks instantly. But some types of checks take longer. Last year, for domestic violence misdemeanors, the agency did not meet the 90 percent threshold until after seven business days — longer than for any other prohibiting factor for gun ownership. Three percent of denials took 21 business days or longer to complete.
That registered as an improvement over 2006, when it took the FBI 12 business days to reach 90 percent completion, according to the report.
The lag in completing misdemeanor domestic violence checks owes to the haphazard basis by which states identify and categorize records they sent to the FBI, the report says. Because what qualifies as a domestic violence misdemeanor varies from state to state, not every conviction meets the criteria for a federal gun ban. While law enforcement agencies from most states feed domestic violence records to NICS, just 22 states take the additional step of flagging convictions that would block a sale or transfer at a licensed gun dealer.
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Flagging convictions saves the FBI time. When the FBI does not know if a crime meets the federal criteria, the agency must comb through each record independently, often leading to a delay. If states were to consistently flag prohibiting domestic violence convictions in their reporting to the FBI, background checks would be completed faster, and sales to convicted domestic abusers would decrease.