Background Checks On Gun Sales Has Major Loophole

[SecularMotion]

"A vast majority of the time we get a proceed," L.E.P.D. Firearms Owner Eric Delbert said. "A percentage of the time, it comes back with a denial, there is also a good percent of the time where we hear nothing."

It comes back as "delayed." The person needs to be checked further. But the system isn't always quick. And there's a certain provision in the Brady Law.

"If we hear nothing, after three business days, then we are legally able to transfer that firearm to that person," Delbert said.

That's reportedly what happened in the case of the gunman who killed nine people in a South Carolina church.

http://www.10tv.com/content/stories/2015/07/23/background-checks-on-gun-sales-has-major-loophole.html

[Nuclear Unicorn]

1. Is the solution --

A) for the enforcers of gun laws (and all other laws, for that matter) to get their crap together and actually do their jobs in a timely and effective manner or

B) infringe upon the fundamental rights of the people

By the way, the "no response within 3 days = approval" is not a loophole; it's a protection of the rights of the people. It's meant to keep dishonest authoritarians -- which is all authoritarians -- from lying by claiming they received no response in order to deny a BGC.

[SecularMotion]

2. The solution is no sale until the background check is confirmed.

[Nuclear Unicorn]

3. Except authoritarians lie.

[SecularMotion]

4. So do gun buyers.

[Nuclear Unicorn]

5. How does a person lie when presenting ID for a background check?

[SecularMotion]

8. Ask Dylann Roof

Mr. Roof exploited the three-day waiting time that has allowed thousands of prohibited buyers to legally purchase firearms over the past decade — and some of those weapons were ultimately used in crimes, according to court records and government documents.

The Department of Justice’s inspector general has been investigating the three-day loophole for some time, Mr. Comey said.

http://www.nytimes.com/2015/07/11/us/background-check-flaw-let-dylann-roof-buy-gun-fbi-says.html?_r=0

[Nuclear Unicorn]

11. He didn't exploit it, the incompetence of the enforcers made it happen --

LEXINGTON, S.C. — A jail clerk made a mistake when entering information about the location of a drug arrest for church shooting suspect Dylann Roof, the first in a series of missteps that allowed Roof to purchase a gun he shouldn't have been able to buy two months before the attack, authorities said.

Lexington County Sheriff Jay Koon told The Associated Press in a statement that the jail discovered mistakes two days after Roof's drug arrest, but the change wasn't corrected in the state police database of arrests. So when a FBI examiner pulled Roof's records in April, she called the wrong agency, and Roof was eventually allowed to buy the .45-caliber handgun that would be used in the June 17 shooting at Emanuel African Methodist Episcopal Church in Charleston, authorities said.

http://www.msn.com/en-us/news/crime/jails-clerical-error-contributed-to-allowing-dylann-roof-to-buy-gun/ar-AAcVNyv

A little further down we read --

In 2014, the FBI reported about 2 percent of background checks end with the FBI not getting enough information and failing to give an answer. Officials said they do about 58,000 checks on a typical day, handled by about 500 people at a call center.

Two percent.

However, we know that Rodgers, Holmes, Hasan, Cho, Lanza, Alexis, Loughner and others had histories with law enforcement and mental healthcare professionals. Yet, the enforcers failed to act in one manner or another.

The problem isn't the people. There is no reason to infringe upon the rights of the people. The problem is the enforcers. They need to get their act together before they go begging for more power even though they are obviously not competent enough to wield what they already possess.

[Duckhunter935]

16. Well said

[Duckhunter935]

7. If the provide knowingly incorrect information on the 4473 form

it is a federal crime.

[pipoman]

12. Which nobody is ever charged with..if they quit worrying about pot

And actually investigated this maybe this wouldn't happen..

[Duckhunter935]

15. Very true

This and the attempted and denied purchases need to be fully funded and heavily enforced. The laws are there.

[Duckhunter935]

6. How long?

the Brady people wanted 5 days, the Instant background check people wanted same day. A compromise was 3 days. It is up to the dealers discretion and if it does eventually come back denied they mist tell the ATF so the person can be contacted and weapons removed as they are a prohibited person with a weapon. The data needs to be correct and the cops and ATF need to get their act together, the process is good if they do that.

[SecularMotion]

9. See post #2

[Duckhunter935]

14. So months or years are good for you?

I seem to remember a couple of months ago a lady was murdered waiting a month plus for her required background check so she could have the her option of defense. I also seem to remember someone blaming her for her own death. That sound familiar?

[SecularMotion]

17. Sounds like a NRA misrepresentation.

[Duckhunter935]

18. Blaming the victim was done by one

Of the hosts of the other gun group

[krispos42]

24. And of course...

...pro-gun-control governors and legislators erotic never ever ever ever in a billion years slash staff and funding from the office that does the checks so there's a 3 year backlog.

Ever.

[SecularMotion]

25. No doubt that government moves slowly at times,

but what you're describing sounds like an anomaly and not the norm. It also sounds like what Republicans in Congress have done to the ATF, leaving the bureau unable to enforce existing regulations.

[krispos42]

32. Uh huh.

What's the wait time for a concealed carry permit in anti-gun states? Months?

Let's face it. There are far too many people out there that would do to RKBA what others are doing to privacy, abortion, union, and voting rights:

Smother it in bureaucracy until it's inert.

[SecularMotion]

34. What is an "anti-gun state"?

[beevul]

35. Its not like examples are hard to find.

http://www.democraticunderground.com/1172168288

http://www.democraticunderground.com/1172124281

[SecularMotion]

46. These "examples" don't support Krispos' claim.

Your first link has nothing to do with a backlog of background checks. It concerns a delay in obtaining a gun license which requires more than a simple background check for a gun purchase and to suggest that this woman would still be alive if she had obtained a gun license is a NRA fantasy.

The second link concerns a backlog caused by an unusual increase in background checks. The Maryland State Police responded by tripling their staff to handle the influx.

Neither supports Krispos' claim that "pro-gun-control governors and legislators" slashed staffs and funding to create a backlog of background checks.

[beevul]

57. No. They support yours...

No. They support yours at least in part.

You did say "No doubt that government moves slowly at times..." right?

Neither supports Krispos' claim...

Had I intended to reply to krispos, I would have.

[petronius]

36. Erotic legislators, huh? I want to move to your state!

Législateurs érotiques would certainly (maybe) spice up the debate...

[krispos42]

38. Dammit.

Autocorrect on my phone.

[Nuclear Unicorn]

40. niccccce

[Travis_0004]

10. I am very pro gun. I'm ok with it being 7 days

If it was infinite, gun control could be implimentef by refusing to pass background checks.

I do have to wonder though. If the brady campaign thought 5 days was plenty in 1994, 3 days should be enough today.

[petronius]

28. In California the DOJ has 30 days to clear a 'delayed'

check before the transfer may proceed regardless - that seems on the long side, but I'd be really curious to know how many go that far, what the time distribution is for background check completions (between instant and 30 days).

'Infinite' is a non-starter for the reason you give, as well as it being unreasonable to deny a civil liberty based without a specific reason for the denial, but I don't see a real problem with allowing more than 3 days to complete a check where there is some confusion: 3, 5, 10, 15, whatever, as long as the clearance is communicated to the dealer immediately on resolution...

[pipoman]

13. It was 2 fucking months after the purchase that he used it

He didn't move, nor was he hiding....why didn't the NICS issue a pickup and send someone to get the gun?

The answer is because they really don't give a shit..nobody cares enough to make such things a priority...there is no funding for enforcement. The tools are there...no more are needed...your government isn't using the tools they are given.

This is so simple only the agenda driven gun control fanatics pretend not to get it..

[Eleanors38]

19. Improve the reporting, don't enable inaction on this with more delay.

Delay is one of the many tacs gun prohibitionists try to use in denying a right.

[SecularMotion]

20. If a seller sells a weapon without a required background check confirmation,

they should be liable for any illegal activities the weapon may be involved with.

[Eleanors38]

21. The seller is following the law; hence, no liability.

[SecularMotion]

22. So you're okay with existing loophole?

[Eleanors38]

23. Sorry, not a "loophole." It's the law. You may not support its improvement...

since little is heard about that subject from controller/banners, but improvement will not be enhanced by longer delays (what's your majic number of days?). But improvement in reporting takes effort and money. Maybe Bloomberg can donate some of both to that cause.

[SecularMotion]

26. How about "window of opportunity for illegal gun buyers"

Does that work for you?

President Obama said he plans to continue working on gun control in his time remaining in office.

http://www.democraticunderground.com/10027004501

I think he will focus on expanding background checks and closing loopholes, since it has overwhelming public support.

[Eleanors38]

29. Hiw about working to improve the law, instead of large posting quantities?

If President Obama works for improving the NICS efficiency and response time, I'm all for it. But citing catch-phrases like "loop holes," and merely extending the time for approval to 5, 7, 10 days, or never, is a lazy approach and invites court challenges.

[Nuclear Unicorn]

27. "what's your majic number of days?"

I'd wager money the answer would be if the report is delayed indefinitely the sale would have to be delayed indefinitely. Then the next thing we'd see is reports being delayed indefinitely.

It's how they succeeded in leaving that woman in NJ defenseless against her psycho ex even though they failed at the legislated requirement to approve or deny the license within 30 days.

If there's no automatic approval requirement the Controllers will lose paperwork, misfile claims and enter bad data as a means of denying people their rights through deliberate error.

[TeddyR]

30. My background check

In Virginia took maybe 20 minutes. There's zero reason in today's digital age that a background check can't be performed within an hour, unless the system is down. And there's no reason to expand the current three day period for completing a check, which frankly seems too long. The problem isn't the background check, the problem is that people aren't doing their jobs, or don't have the resources to do their jobs.

[fifthofnine]

31. Loophole...

"You keep using that word. I do not think it means, what you think it means."

[SecularMotion]

33. Loophole

loop·hole
noun
noun: loophole; plural noun: loopholes

1. an ambiguity or inadequacy in the law or a set of rules.
"they exploited tax loopholes"
synonyms: means of evasion, means of avoidance;

If the law as written allows a person to obtain a gun without a confirmed background check, that is a loophole.

[DonP]

39. Loophole = something the dumb ass gun control crowd didn't think about and are now whining over

We went through this same crap with the so called Assault Weapons Ban and now the SAFE act in New York.

Stupid people, that know nothing about firearms, pass a bunch of laws in a big hurry, without any input from people that actually know what they are talking about.

Then, when things don't work the way they think they should, they get all whiny and pissy about so called "loopholes' their own side left in the laws.

But no problem, after all you have "90% support for more gun laws", including "75% of the NRA membership" behind you. Just tell the legislature to fix anything you want.

We'll wait here.

[russ1943]

61. It's a loophole alright.

Full Title; To provide for a waiting period before the purchase of a handgun, and for the establishment of a national instant criminal background check system to be contacted by firearms dealers before the transfer of any firearm. https://www.govtrack.us/congress/bills/103/hr1025
An Act ;To provide for a waiting period before the purchase of a handgun, and for the establishment of a national instant criminal background check system to be contacted by firearms dealers before the transfer of any firearm. http://usgovinfo.about.com/library/bills/blbradyact.htm
The Brady Bill requires that background checks be conducted on individuals before a firearm may be purchased from a federally licensed dealer, manufacturer or importer—unless an exception applies. https://en.wikipedia.org/wiki/Brady_Handgun_Violence_Prevention_Act#Opposition_by_National_Rifle_Association
Simply put, the Brady Act was intended to provide a mechanism for keeping guns away from prohibited purchasers. Many consider default proceeds as an inadequacy in the law, since it allows the prohibited person to walk out of the FFL’s place of business with the firearm. The Law Center to Prevent Gun Violence isn’t the only organization to use the term loophole.
, the ATF, FBI and other federal agencies have made several recommendations to strengthen the law, including:
Extending the three-day limit for background checks – Under the Brady Act, if the FFL has not been notified within three business days that the sale would violate federal or state laws, the sale may proceed by default.17
This loophole in federal law, known as a “default proceed,” allowed 3,849 prohibited purchasers to buy guns during the first year of operation (November 30, 1998 through November 30, 1999) of NICS.18 In fact, the FBI has found that a purchaser whose NICS check takes longer than 24 hours to complete is 20 times more likely to be a prohibited purchaser than other applicants.19
Moreover, between November 1998 and December 31, 2005, ATF received 26,600 referrals from the FBI requesting further review, evaluation and possible retrieval of firearms that had been sold to ineligible persons by default.20 As a result, the FBI has recommended extending the maximum time allowed for conducting background checks to allow more research time to complete background checks and to reduce the number of prohibited purchasers who are able to purchase firearms by default.21 FBI investigations of prohibited purchasers who were allowed to buy firearms by default typically take 25 days to complete.22 http://smartgunlaws.org/federal-law-on-background-checks/
As a result, the FBI has recommended extending the three-day period to allow more agents more time to complete background check investigations and to reduce the number of prohibited purchasers who are able to purchase firearms by default.11 A January 2013 poll found that 76.3% of Americans – including 67% of gun owners – support giving law enforcement up to 5 business days, if needed, to complete a background check for gun buyers.12 Recognizing the irresponsibility of the default proceed rule, some gun dealers, including Walmart, refuse to engage in default proceed transactions, making it a matter of policy to only sell firearms when the individual affirmatively passes a background check.13 http://smartgunlaws.org/background-check-procedures-policy-summary/
Several states have taken measures to extend the time allowed for completion of a background check, so that firearms cannot be transferred by default when a background check cannot be completed within three days…………..In California, all firearm transfers are subject to a 10-day waiting period.85 If the California Department of Justice (“DOJ”) cannot determine within the 10-day period whether the prospective purchaser is prohibited from possessing a firearm, DOJ may notify the dealer and prospective purchaser of this fact and obtain up to a total of 30 days to complete the background check.
Maryland gives the Secretary of State Police seven days in which to approve or disapprove the transfer of a handgun. Maryland also prohibits the transfer of a handgun if the application is placed on hold because of an open disposition of criminal proceedings.
Washington allows five days to complete a background check on prospective handgun purchasers. However, if records indicate that a prospective purchaser has an arrest for a potentially disqualifying offense, a hold may be placed on the transaction for up to 30 days, pending receipt of the disposition, or longer upon a judicial order for good cause.86
In Tennessee, the Bureau of Investigation must deny a transfer if the background check reveals that the purchaser has been charged with a crime for which the purchaser, if convicted, would be prohibited from possessing a firearm, and either there has been no final disposition of the case, or the final disposition is not noted. However, the transfer may go forward if the Bureau receives written notice from the court indicating that no final disposition information is available.87 http://smartgunlaws.org/background-check-procedures-policy-summary/

[fifthofnine]

37. In this context....

...one must use the legal definition of "loophole" since we are dealing with the law. From http://legal-dictionary.thefreedictionary.com "An omission or ambiguity in a legal document that allows the intent of the document to be evaded." What is the "omission or ambiguity" to which you refer? The law VERY clearly states, "3 days" (ergo, no "ambiguity&quot . There is certainly no "omission". The law is, again, VERY clear. Which brings us back to, "I do not think that word, means what you think it means."

[SecularMotion]

41. I'm not sure if you're purposely missing the point here, but I'll explain this slowly.

The loophole exists in that if there is no response to the background check after 3 days, the sale can proceed without completing the background check. This allows the "allows the intent of the document to be evaded" as stated in the definition you provided.

[fifthofnine]

42. Since you are unsure...

...I will clarify for you. (Just curious, did you type your explanation slowly?) I am not "purposely missing" anything.
The law very clearly states the 3 day time limit and it also very clearly states what must legally be done if results are not returned within that time limit. Doing so does not "evade the intent of the law", doing so follows the exact wording of the law. "The intent of the law" is to provide 3 days for a background check and to state the recourse when those 3 days are exceeded. If you want to argue, in your opinion, following the law exactly constitutes a "loophole" please feel free to do so. However, dont expect your interpretation/opinion to go unchallenged. Obviously, those who wrote the law disagree wtih your assertion.

[SecularMotion]

43. You replied to the wrong post

The intent of the Brady Bill is to mandate federal background checks on firearm purchases. The fact that a sale is still allowed to be completed without a background check after a 3 day time limit evades the intent of the bill.

I'm not going to play semantics with you any longer. If you do not recognize that a background check bill that allows for sales without background checks is an "inadequacy in the law", then you are purposely missing the point.

Enjoy your stay on DU. I hope it's short.

[Nuclear Unicorn]

45. "The intent of the Brady Bill is to mandate federal background checks on firearm purchases."

Yes it is and that's a good thing but at the same time it cannot impose an undue burden on a fundamental right. Any and all regulations placed on rights must be the least invasive possible to pass USSC muster.

Dylan Roof did not pass a BGC because he beat the clock; he passed the BGC because people in law enforcement screwed up.

Even then he could have bought a gun illegally -- just like millions buy illegal drugs every day -- or he could have just pitched Molotov cocktails.

[Oneka]

59. The three day period is not an inadequacy.

It is a fully deliberated protection against the possible future abuses of government agencies. Your insistence that it is a "loophole" does not make it so.

[Nuclear Unicorn]

44. "Obviously, those who wrote the law disagree wtih your assertion."

The National Instant Criminal Background Check System (NICS) is a U.S. system for determining if prospective firearms or explosives buyers are eligible to buy. It was mandated by the Brady Handgun Violence Prevention Act (Brady Law) of 1993

https://en.wikipedia.org/wiki/National_Instant_Criminal_Background_Check_System

Emphasis mine.

Maybe the OP thinks the Brady campaign is just a NRA front group.

[SecularMotion]

47. The 3 day limit was a concession made to Republicans in order to pass the law.

[Nuclear Unicorn]

49. You're so cute when you make things up out of thin air.

https://en.wikipedia.org/wiki/103rd_United_States_Congress

[SecularMotion]

50. How America Wound Up With a Gun Background Check System Built More for Speed Than Certainty

The almost-forgotten story of the Gekas amendment.

House Amendment 390 is the part of the Brady Bill that sets the clock. Known colloquially as the Gekas amendment — for its sponsor, George Gekas, a House Republican from Pennsylvania and staunch NRA ally — it was introduced at the eleventh hour of a seven-year-long legislative fight. In the years since, the Gekas amendment has come to define the policy at the center of American gun violence–prevention efforts. Its primary purpose was to mandate the replacement of an interim, manual federal system for verifying prospective gun buyers’ eligibility with a national computer-based system capable of producing near-instant answers; the three business-day cutoff was an afterthought. But together those provisions have shaped the expectations for gun background checks, creating a bias toward speed.

For such a consequential piece of Congressional maneuvering, the backstory of the Gekas amendment is not widely known. Interviews on background with several key players in the creation of the legislation, along with a review of the Congressional record, paint a clear picture: In the waning days of the debate over the Brady bill, the NRA countered the inevitability of a rare defeat by trying to sink the bill from within — and instead wound up producing a federal background check system that differs in key ways from what its original champions envisioned.

http://www.thetrace.org/2015/07/brady-bill-amendment-default-proceed-loophole-amendment-nra/

[Nuclear Unicorn]

52. Yet the Democratic party had 57 votes in the senate. It even passed the senate with 63 votes.

[SecularMotion]

54. The honorable thing to do would be to withdraw your accusation that I make up things out of thin air

[blueridge3210]

60. Honorable?

Like referring to posters as "gun nuts" and "gun trolls"?

[DonP]

56. Bloomberg as a source, very "authoritative"

Not that Bloomberg would lie, only all the time.

Maybe he'll take you and the other true believers with him when he enters heaven on a full ride scholarship too?

Feh!

[beevul]

58. Meanwhile, another former MAIG mayor is in trouble with the law.

Former Harrisburg PA Mayor Stephen R. Reed, if I remember correctly.

[fifthofnine]

48. If I replied to wrong post...

how did you know to respond? The Brady Bill has nothing to do with this legal issue. I am sure you dont want to play "semantics" any longer. However, it is interesting how you continue to use words like "intent", "inadequacy", "confirmed" and "completing" with regard to background checks. When those words do no appear in the law. Apparently, it is OK for you to play "semantics".
You are the one "purposely missing the point". "If you do not recognize that a background check bill that allows for sales without background checks is not an "inadequacy in the law"... The law provides 3 business days to conduct a backgound check (notice, it does not provide for 3 business days to "complete"a background check) AND provides for a legal recourse when the time limit is exceeded.
I am sure you do hope my stay is short. I have no intention of it being so.

[fifthofnine]

51. OK....

..."The 3 day limit was a concession made to Republicans in order to pass the law." That does not negate the fact, it is the law. Laws are often the result of "compromise".

[SecularMotion]

53. A loophole is an inadequacy in the law.

And now we've come full circle.

[fifthofnine]

55. Speak for yourself....

...I posted nearly 3 hours ago..."If you want to argue, in your opinion, following the law exactly constitutes a "loophole" please feel free to do so." You have finally come "full circle". I was there 3 hours ago. You are also free to argue it is an "inadequacy" and are entitled to that opinion. Just dont expect it to go unchallenged.