The Federal Bureau of Investigation is planning a major addition to the gun background check system, years after examiners’ failure to locate critical information allowed a white supremacist to buy the gun he used to murder nine people in a historically black church in Charleston, South Carolina.
Within about two years, background check examiners will have the option to query a vast, previously untapped database of law enforcement records when vetting potential gun buyers. The National Data Exchange, or N-DEx, which is maintained by the FBI, houses more than 400 million records, including incident and arrest reports and probation and parole documents.
The FBI started exploring the possibility of using N-DEx in 2015, following an internal review that found that Charleston gunman Dylann Roof would have been blocked from legally acquiring his murder weapon had examiners been able to tap it.
Stephen Morris, who ran the FBI’s background check division at the time Roof bought his gun, said he has long pushed to give examiners access to N-DEx.
“If there is a system that can be searched, we should be searching it,” he said.
In June, a federal judge in South Carolina who dismissed wrongful death lawsuits against the bureau by the victims’ families slammed the FBI for not querying the database when evaluating the fitness of gun buyers. He called the omission “simple nonsense.”
As the FBI considered the switch, the bureau’s Criminal Justice Information Services Advisory Policy Board conducted a pilot study encompassing more than a million gun background checks. It found that with N-DEx added to the tools for vetting purchasers, two dozen gun buyers who would have been waived through were instead kept from acquiring guns they aren’t allowed to have. Seven more were flagged for further research.
The buyers who were barred by records in N-DEx included persons with felony convictions, open arrest warrants, illegal drug use, and misdemeanor domestic violence crimes, according to minutes taken during meetings of the advisory board.
The Justice Department lawyer in charge of setting up the The National Instant Criminal Background Check System, called NICS, during the 1990s also praised the move.
“The idea that the FBI would have info in a database that would prohibit a gun transaction — but not make it available to the background check examiners — just doesn’t make sense,” Frank Campbell said.
The FBI declined to comment on the change. Minutes from a June 2018 meeting of the advisory board indicate that the FBI’s Office of General Counsel has already determined that background checkers can start to access N-DEx without the FBI changing any regulations, an often lengthy bureaucratic process. The FBI is now assessing the labor, training, and technology required to add N-DEx to background check protocols, which will take up to two more years to fully implement.
“Change is always good,” said Steve Hurd, whose wife, librarian Cynthia Hurd, died in the Charleston mass shooting. “But it’s a little too late. People lost their lives because of this mistake.”
Experts on the background check system caution that the addition of N-DEx is not a cure-all. They say background check examiners have a finite amount of time to complete each check. If they research some buyers more thoroughly using N-DEx, they may be unable to vet others at all.
“I think everyone recognizes that it could be a valuable and powerful tool, at the same time recognizing that there is the potential for significant consequences, and it would be premature to proceed too aggressively or too quickly,” said Ross Loder, the vice chairman of the advisory board’s NICS subcommittee, which recommended allowing examiners to start checking N-DEx.
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Under federal law, anyone seeking to purchase a firearm at a federally licensed dealer must first undergo a background check. The gun dealer initiates the process by contacting an FBI background check examiner, who queries three different databases that together comprise NICS. The examiner looks for any records that might show the person is banned from possessing firearms for one of several reasons, including a criminal record, a history of domestic abuse, or a serious psychiatric condition.
It takes the FBI less than two minutes to complete the vast majority of checks. Sometimes, however, an examiner finds a record that indicates the buyer may be barred from guns, but requires more research. An arrest for felony battery, for instance, would trip alarms for an examiner. Only a conviction for that crime, however, would mean the shopper is forbidden from owning firearms.
In those trickier cases, the examiner continues vetting the buyer. The process can be arduous, often involving calling local records offices and courthouses and asking clerks to pull files and fax documents. After three business days, if the examiner still hasn’t been able to determine whether the buyer is cleared to own guns, the dealer is allowed to go through with the transaction regardless.
The number of buyers acquiring firearms through such so-called default proceed sales climbed to over 310,000 in 2017, the last year for which FBI data is available. In 2016, the FBI issued 4,000 requests to take back guns from people who should have been prohibited from buying them but weren’t.
In Roof’s case, the initial background check revealed a red flag: a drug arrest. But NICS examiners couldn’t tell whether or not Roof had admitted guilt or been convicted, so they contacted local records officers to find out. After three days of failed attempts by the examiner to determine Roof’s status, the dealer sold Roof the Glock .45-caliber model 41 he used to carry out the mass shooting.
That’s where it would have helped to check N-DEx. The database contains a record showing that Roof admitted drug possession. If examiners had been able to see it, he would have quickly been denied.
“At the end of the day, you’re going to get some quicker decisions and that’s a benefit,” Morris said.
The FBI advisory group that recommended examiners start checking N-DEx debated whether they should search it during every check, or only when information is found in the initial check that that requires further research. In an effort to preserve examiners’ resources, the advisory group decided on the latter.
The background check system is already strained. When NICS was established in 1998, examiners processed about 800,000 checks a month. Now that number is about two million. The agency has consistently requested more funding and staff positions but has received only modest increases, leaving critical shortages. Last year, employees were often prohibited from taking time off and were collectively working as much as 2,000 hours of overtime a week.
Morris would like Congress to extend the time limit FBI examiners have to complete a background check from three to five days. “That would allow us to follow up on some of these delayed transactions,” he said.
A bill filed in Congress late last year takes the reform one step further, allowing the sale of a firearm only after examiners have completed their screening of a would-be buyer.
The legislation has gone nowhere. A similar measure in South Carolina has idled in committee.
“There is much more to be done if the bureau is truly committed to advancing the public trust in meaningful background checks,” said Andy Savage, a Charleston attorney who represents several victims of the attack. “Three years plus to undertake an initial step to rectify their admitted mistake and nine more months to implement it sends a loud message about the government’s priority in implementing public safety measures.”