Everything You Need to Know About Federal Background Checks - and the Gaps of Dylann Roof

FBI Director James Comey made a startling admission Friday: Dylann Roof, the Charleston church shooter, was sold a gun — despite confessing to drug possession a month earlier — because of a breakdown in the National Instant Criminal Background Check System, or NICS.

 

But what Comey didn’t say is that Roof exploited a significant but rarely acknowledged loophole: If a background check takes the FBI longer than three days to complete, a gun dealer can sell the gun anyway. And because of a bureaucratic mix-up, that’s exactly what happened.

 

“This case rips all of our hearts out,” Comey said at a closed-door gathering of reporters at FBI headquarters.

 

Here, a step-by-step guide to the background check system, and the rule that stopped the clock before it could be determined that Roof was barred from owning a gun.

 

Since you’re purchasing a gun from a Federal Firearms Licensee, or FFL, you’ll have some paperwork to fill out. (If you were purchasing a firearm at a gun show or from a private seller, you might hand over payment and walk out with your new gun with few or no questions asked.) Specifically, you’d fill out Form 4473, which includes 16 questions relating to your background, drug use, and criminal history. The gun store would then contact the FBI’s National Instant Criminal Background Check System online or by phone and supply your answers plus your Social Security number.

 

From its inception in 1998 until the end of 2014, NICS processed a total of 202,536,522 transactions, 1,166,676 of which have been denied.

 

To ascertain whether an applicant should be disqualified from owning a gun, the FBI draws from several databases: The Interstate Identification Index, a database of criminal history records; the National Crime Information Center, which includes information on people subject to orders of protection, or a restraining order; and the NICS Index, which includes illegal immigrants and those who’ve been involuntarily committed to a mental institution.

 

State and local police are not required to submit criminal-record data to the FBI, David Chipman, a former ATF agent, told the Charlotte Observer in June. Reporting “varies widely based on the practices of the individual departments. The smaller the town, the worse the records.”

 

NICS also consults medical records submitted by each state. According to a 2013 congressional report, these records can show whether someone has been “adjudicated as a mental defective” by a “court, board, commission, or other lawful authority,” or has been involuntarily committed to a mental institution — both circumstances would bar someone from purchasing a firearm. However, federal law does not require states to forward mental health records to NICS, and some states are resistant, citing privacy laws.

 

States can run their own background checks, which query local databases, but only 21 choose to do so. “When a state relies on NICS, they’re not getting the full picture,” Mike McLively, a staff attorney at Law Center to Prevent Gun Violence, told the Charlotte Observer in June. “State databases include arrest records, mental health records. You’re checking a wider range of sources.”

 

NICS has “instant” in its name for a reason. Department of Justice guidelines require NICS reviewers to make an immediate decision in 90 percent of cases, according to the FBI.

 

The system was introduced in 1998, after the the Brady Handgun Violence Prevention Act of 1993 mandated its creation. Before 1998, local law enforcement handled background checks — and had five days to make a determination.

 

That’s where things get interesting. If the check comes back clean, NICS gives the sale the green light. If it doesn’t, the purchase is denied. And then there are cases for which the FBI seeks more information to make a final determination on the sale. To do this, the check is transferred to the FBI’s Criminal Justice Information Services Division, where an examiner reaches out to local law enforcement, and other state agencies.

 

When a check requires more information, the FBI has only three days to make a final determination on the buyer. If a decision can’t be made in that time frame, the FFL is allowed by law to go ahead and sell the firearm. The dealer is also not required to notify the FBI when a sale has been made after a three-day delay.

 

Sales approved by FFLs after the determination period has expired are eight times more likely to involve a prohibited purchaser than sales with background checks that are resolved within 72 hours, according to a 2009 study by Mayors Against Illegal Guns. (Mayors Against Illegal Guns is an earlier iteration of Everytown for Gun Safety, a seed donor of The Trace.)