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Everytown Statement on FBI News that Charleston Shooter’s Background Check was Incomplete

Previous Everytown Research on Background Checks, Mass Shootings and More Available at www.everytownresearch.org

NEW YORK – In response to breaking news today from the Federal Bureau of Investigation that the Charleston shooter should not have been able to purchase the gun used to kill nine at Emanuel African Methodist Episcopal Church on June 17, Everytown for Gun Safety released the following statement and fact sheet on how the National Instant Criminal Background Check System (NICS) works when the FBI has not resolved a person’s criminal history.

STATEMENT FROM JOHN FEINBLATT, PRESIDENT OF EVERYTOWN FOR GUN SAFETY

“We are still learning more about what exactly happened with the sale of the gun to the Charleston shooter – but this is yet another reminder that all it takes is one gun in the hands of a dangerous person to commit mass murder. Our current background check system allows a clock to run out: when three days have passed, even if a background check isn’t complete, a dealer is allowed to make the sale, meaning dangerous people are able to get their hands on guns. This is a deadly flaw in the system that the gun lobby has fought to protect – but when lives are at stake, this shouldn’t be a game. If you don’t pass a background check, you should not pass go and you should not be able to collect a gun.

“Make no mistake – this background check was incomplete. Background checks that have been completed have blocked more than two million sales to dangerous people and they have saved countless lives. There is still more work to be done to strengthen our country’s gun laws and law enforcement should be given the time it needs to investigate criminal histories – because in some cases it could save lives.”

Bottom Line: Federal law requires that licensed gun dealers run criminal background checks on all potential gun buyers. But due to a National Rifle Association-backed amendment to the 1994 Brady Bill, the law allows sales to proceed after three business days have passed after the check begins—even if background check operators have not confirmed the buyer is legally allowed to have guns.


  • On July 10, 2015, the FBI said the Charleston shooter was able to purchase the gun he used in the shooting because this “default proceed” period had elapsed—and the dealer made the sale even though the background check was not complete.
  • In the last five years, gun dealers have gone forward with more than 15,000 gun sales to prohibited people because a background check could not be completed within the default period.

Due to a National Rifle Association-backed amendment to the 1994 Brady Bill, federal law allows sales to proceed once three business days have elapsed.

  • Since 1994, federal law has required that licensed gun dealers run background checks on all gun buyers. Since 1998, this check has been run through the National Instant Criminal Background Check System (NICS), a series of electronic databases operated by the FBI.
  • When a dealer runs a check on a potential buyer, he contacts either the FBI or, in some states, a state “point-of-contact”, either by phone or electronically. Operators enter the person’s name into the NICS system and review the person’s criminal records to determine if the person is prohibited from possessing or purchasing guns.

    • In the vast majority of cases, operators instruct the dealer within minutes that the sale may proceed (a “green light”) or that the sale is denied (a “red light”).
    • Since its inception, the background check system has blocked more than 2.4 million gun sales to criminals and other dangerous people.

    • In a small minority of cases (approximately 9 percent in 2014 ), operators cannot determine from the available records whether the purchaser is prohibited, and will inform the dealer that the background check is in “delay” status (a “yellow light”). Operators will then pursue further records in order to make a determination, including by contacting courts, prosecutors, and law enforcement.
    • Operators will continue to research the case until a definitive conclusion is made—but federal law allows the dealer to proceed with the sale after three business days, regardless of whether the investigation is complete.

    According to FBI Director James Comey, the Charleston shooter was able to purchase the gun he used in the massacre because of the “default proceed” law.
    • The director said that the background check was initiated on April 11, 2015, and the sale went forward by default five days later—even though the background check was incomplete. Comey said, “By Thursday, April 16, the case was still listed as delayed-pending, so the gun dealer exercised its lawful discretion and transferred the gun to” the shooter.

    FBI data shows that the default proceed provision has resulted in gun sales to more than 15,000 prohibited people in a five-year period.

    • From 2010 through 2014, gun dealers have gone forward with 15,729 gun sales to prohibited people because a background check could not be completed within three business days.
    • FBI and the Department of Justice have recommended that the three-day time period be extended to minimize the number of gun sales that proceed by default.

    Dealers can decide not to allow sales to proceed even though the “default proceed” period has elapsed.

    • In 2008, Walmart voluntarily agreed with Mayors Against Illegal Guns to adopt several policies to ensure their gun sales were safely conducted. Among those policies, Walmart agreed its retailers would not transfer firearms without final background check results—even if the three-day period has elapsed.

    Several states have laws requiring that sales may not go forward even though the three-day “default proceed” period has elapsed. For example:

    • Under Tennessee law, authorities deny sales to people if there is a “yellow light.” If the potential buyer appeals the denial, authorities have 15 days to determine if the person is eligible to possess a gun. At the end of 15 days, if there is still no disposition, the dealer may transfer the gun.
    • Under North Carolina law, authorities have 14 days to make the determination of whether a potential gun purchaser is eligible to possess a handgun.
    • Under California law, dealers must wait 30 days before selling a gun if the background check operators have not resolved certain delayed investigations.
    • Under Hawaii law, authorities have 20 days to make the determination of whether a potential gun purchaser is eligible to possess a gun.
    • Under Washington law, dealers must wait 10 days before selling a gun if the background check operators have not resolved certain delayed investigations.