Breaking: Everytown FOIA Shows That “Thousands” of Guns Have Likely Been Sold to Prohibited Purchasers During the Pandemic Due to the Charleston Loophole

Data Obtained in the FOIA Proves that the Background Check System is Overwhelmed Due to the Sustained Surge in Gun Sales and the Charleston Loophole

According to an Everytown FOIA exclusively obtained by Reuters, the National Instant Criminal Background Check system (NICS) has been overwhelmed due to surging gun sales during the pandemic –– leading to “a spike in the number of delayed checks and allowing gun sales to proceed without them.” The FOIA further reveals that “[t]here has been a 54% increase in the number of background checks that were delayed past three days in the March through July period, as compared with the same time last year,” which means that “thousands of people prohibited by law from owning guns –– such as most convicted felons –– may have obtained them as the FBI background check was delayed.” This is happening because of the Charleston loophole –– a gap in federal law (named after the loophole the Mother Emanuel AME Church shooter exploited to acquire his firearm) that allows gun sales to proceed if a background check has not been completed within three business days. 

Rob Wilcox, the deputy director of policy and strategy at Everytown for Gun Safety, is quoted in the Reuters story on the FOIA, saying that the President Donald Trump and the FBI, “should have allocated the people and resources needed to conduct these background checks.” Additionally, Wilcox released the following statement: 

“At the beginning of the pandemic, the DOJ warned President Trump that the background check system was going to be overwhelmed –– but rather than addressing it, Trump added fuel to the fire by making it even easier to buy guns,” said Rob Wilcox, deputy director of policy and strategy at Everytown for Gun Safety. “Now, this FOIA confirms that the worst has happened: thousands of guns have likely fallen into the wrong hands due the Charleston loophole, and there’s no end in sight.”

The data, which captures data from March through July and is published in full here, is alarming: 

• The NICS system is completely overwhelmed. As a share of all federal transactions, 54% more background checks were delayed past 3 days in March-July 2020 compared to the same time last year. This means that 294,683 gun sales could have proceeded without a background check being finished, which is more than all of 2019.
• It’s estimated that nearly 4x more guns were transferred to prohibited purchasers (due to the Charleston loophole) in March through July 2020 than during the same time last year: It’s estimated that nearly 4x as many guns were transferred to a prohibited purchaser (due to the Charleston loophole) between March and July 2020 than during the same time last year. Specifically, during those five months alone, it’s estimated that of the 75,855 checks that were resolved within 90 days, at least 3,988 delayed background checks resulted in a gun being transferred to a prohibited purchaser — 33% more than the number of guns transferred in all of 2019. With the large increase in background checks, the number could be even higher. 
• It’s estimated that over 131,000 of the delayed, uncompleted background checks from March-May 2020 have already been purged. All uncompleted federal background check records are purged after 90 days, meaning that most of the delayed records from March through May –– an estimated 131,000 –– are now lost forever. 
• Tens of thousands more prohibited buyers are trying to buy guns: Twice as many prohibited buyers tried to get guns from dealers between March and July 2020 compared to the same time last year.

Over a year ago, the House of Representatives passed House Majority Whip James Clyburn’s (D-SC) bipartisan legislation to address the deadly Charleston loophole (H.R. 1112), but Senate Majority Leader Mitch McConnell (R-KY) has failed to even bring the bill to the floor for a vote. In addition, the House-passed Fiscal Year 2021 Commerce, Justice, Science, and Related Agencies appropriations bill included key provisions calling for the data on the gun sales that fell through the Charleston loophole and actions to complete background checks and retrieval firearms sold to people who ended up failing the check. The inaction has grown even more dangerous during the pandemic, when even President Trump’s Department of Justice has asked for more money to perform background checks and retrieve firearms that should not have been sold.

This FOIA follows another Everytown FOIA from March, which found a likely “increase in gun purchases by people who can’t legally own them” due to surge in gun sales and the Charleston loophole.