By David Johnson
February 27, 2018

In 2016, 4,170 guns were sold to people with criminal records, mental illnesses and other circumstances which should have prevented them from being able to buy a firearm. The reason? The FBI failed to complete background checks before a three-day deadline, so these people were automatically cleared to purchase a gun.

Gun control advocates have termed this the “Charleston loophole,” because it allowed Dylann Roof to buy the gun he’s accused of using to kill nine churchgoers in Charleston, S.C. in 2015. The more than 4,000 guns sold this way in 2016 marked a 44 percent increase from 2015, and is the highest number since 2001, according to the latest FBI data.

Though debates on gun control have resurfaced in Congress following the massacre at a Parkland, Fla. high school that left 17 people dead, including 14 children, there has been little public discussion about extending the three-day deadline for background checks.

That’s partly because it wouldn’t have stopped Nikolas Cruz from buying the AR-15 assault rifle he used in the Florida shooting. Though Cruz has a history of mental illness, only those involuntarily committed to a hospital or declared mentally incompetent by a court are banned from purchasing firearms under federal law.

On their website, the National Rifle Association says “there is no ‘Charleston loophole,’” clarifying that “background checks don’t necessarily stop criminals from getting firearms.” Republicans have similarly resisted closing the so-called loophole.

“Bills to close the loophole have been introduced continuously since the Charleston shooting, unfortunately they just haven’t moved, or been part of the recent conversation,” said Andrew Karwoski, counsel for Everytown for Gun Safety, a group funded by Michael Bloomberg that supports gun violence prevention. The latest such bill was introduced by Democratic senators following the October 2017 shooting in Las Vegas, though closing the loophole would not have stopped the gunman from obtaining weapons. The bill was not considered in the Senate Judiciary Committee, which oversees gun legislation.

In Roof’s case, the sale of the firearm he’s accused of using in the Charleston church massacre was initially delayed by his background check, which returned a felony drug charge. But the FBI failed to obtain a record of Roof’s conviction within three days, enabling Roof to complete his purchase.

Delaware is the most recent state to extend that three-day period, giving law enforcement 25 days to investigate criminal records. Seventeen other states have made similar extensions.

Background checks involving domestic violence records take the longest to complete, according to a 2016 report from the Government Accountability Office. Thirty percent of such cases were not resolved within three business days. As a result, 6,780 guns were sold to people later found to have records of domestic abuse between 2006 and 2015.

Since 1998, the loophole has put a total of 62,949 guns in the hands of people who were later found to be ineligible.

Click or tap the arrows in the chart below to see how the provision works.

Two years after the Charleston massacre, the U.S. Air Force failed to enter Devin Kelley’s history of domestic violence into the National Instant Criminal Background Check System (NICS), allowing him to purchase firearms used to kill 26 people in Sutherland Springs, Texas.

That drove Texas Sen. John Cornyn to introduce the Fix NICS bill alongside Democratic Sen. Chris Murphy of Connecticut in December 2017, though progress stalled after a companion bill in the House was attached to legislation expanding conceal carry permits across states lines.

Cornyn’s bill doesn’t expand the definition of mental illness to keep guns away from people like Nikolas Cruz, nor does it extend the FBI’s three-day deadline. But it would require states to enter criminal records into the federal background check system, with financial incentives.

That has support from the White House, the National Rifle Association, and Everytown. “It’s a moderate step in the right direction,” says Karwoski. “States and the federal government should be doing everything in their power to make sure the background check database is as comprehensive and accurate as it can be.”

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