NICS Background Check Completion Act

Representative-James-E-Clyburn-SC6Assistant Democratic Leader James E. Clyburn in the U.S. House of Representatives has introduced the Background Check Completion Act (H.R. 3051)

Under current law, the Charleston shooter should have been barred from purchasing a firearm from a licensed dealer. Clyburn says a “procedural loophole” allowed alleged Charleston shooter Dylann Roof to purchase a .45 caliber firearm to kill nine people at Charleston’s Emanuel African Methodist Episcopal Church on June 17.

A statement released by FBI Director James Comey on July 10 regarding Dylann Roof’s gun purchase calls the NICS clearance for Roof a mistake — not a loophole. Click here to read Comey’s full statement, delivered to reporters at FBI Headquarters on July 10, 2015.

Clyburn asserts the Background Check Completion Act closes a loophole so that criminals forbidden by law from buying guns are not able to buy guns.

Under federal law, a Federal Firearms Licensee must submit biographical information about a potential purchaser to the FBI’s National Instant Check System (NICS), and NICS has three business days to perform a background check and clear or deny the purchase.

If the clear or deny decision has not been given in three business days, the FFL has the discretion to proceed with the transaction. Many large retailers exercise their discretion not to proceed until given a clear “yes,” but many other retailers conclude the transaction after the three business days even in the absence of a clear decision, which is what the law allows.

“The Background Check Completion Act will guarantee that no gun is sold by a licensed dealer until a background check is completed,” Clyburn said. “Tragically, the Charleston shooter was allowed to purchase a gun even though the FBI had not completed his background check.”

Larry Keane, senior vice president, assistant secretary & general counsel for the National Shooting Sports Foundation, said, “NICS was waiting when Roof first attempted to purchase a gun on April 11. When the retailer contacted NICS, the initial check surfaced a record of a recent drug arrest, so the purchase was delayed and turned over to an FBI examiner.

“But due to a quirk of South Carolina geography, the examiner contacted the wrong local police department. The bottom line is that the examiner ultimately failed to obtain the police report where Roof had apparently admitted to being an illegal user of a controlled substance – grounds to issue a denial.”

Keane said, “Under federal law, the FBI has three business days to determine whether there is sufficient evidence to deny a purchase. Because the examiner was unable to find the correct information, Roof was able to purchase the gun. But it wasn’t until two months after the gun purchase that Roof used the gun to commit the crime. We don’t know if the examiner abandoned the investigation, but if his disqualifying information had been discovered, the two months provided ample time for the FBI to advise the ATF of the illegal purchase, and send agents to confiscate the gun.”

According to FBI statistics, in 2014 FBI/NICS delayed 9 percent of transactions. Of those, 12 percent of transactions were denied. Only 1.1 percent of all NICS checks overall are denied.

The background check limit is in place so that the agency can’t sit on clearances indefinitely. Many retailers, such as Walmart, voluntarily agree to only allow gun sales to customers who get approvals. Customers can make their purchasing decisions accordingly.

However, Clyburn’s bill will mandate that practice, and it would effectively remove the “instant” from NICS.