Rep. Longhurst: Let's Close 'Delayed Transaction' Loophole for Gun Sales

(Rep. Valerie Longhurst sent the following letter to Delaware's Congressional Delagation Wednesday.)

February 3, 2016

RE: Federal Criminal Background Check Loophole

Dear Sen. Carper, Sen. Coons and Rep. Carney:

It has come to my attention that there is a serious loophole in federal law regarding background checks and preventing prohibited persons from purchasing firearms. Federal regulations allow a Federal Firearm Licensed dealer (FFL) to proceed with a firearm transaction if a requested background check has not been processed by the National Instant Criminal Background Check System (NICS) within three business days.

This loophole has allowed firearm transactions that otherwise would be denied to proceed, resulting in potentially dangerous individuals “legally” purchasing guns on a technicality. These “delayed transactions” (or “default proceeds”) jeopardize public safety, and they create a problem for the Bureau of Alcohol, Tobacco, Firearms and Explosives, which must then deploy officers to retrieve any guns that were sold to a person who later was determined to be prohibited from possessing a firearm.

According to the FBI, from 2010-14, gun dealers went forward with 15,729 gun sales to ineligible people due to the delayed transaction provision. Additionally, the FBI has stated that investigations to determine whether an ineligible person has been sold a gun by default typically take 25 days to complete. That means that each year, thousands of individuals who should have been denied a firearm purchase are able to obtain a gun solely through this loophole, and it then takes the FBI nearly a month on average to determine that a person should never have been permitted to purchase the gun.

Last year, nine people were murdered in a mass shooting at a Charleston, S.C. church. The suspected gunman legally purchased the firearm used in the killings through the delayed transaction loophole after a background check took longer than three days. Had there been a law in place to require that he pass a background check before obtaining a gun, the sale would have been denied due to a drug conviction.

As the lead sponsor of Delaware legislation requiring state agencies to provide information on mentally ill individuals to NICS and closing the “gun show loophole,” I am very concerned about this federal regulatory loophole. These “delayed transactions” do not occur in situations where the legality of the transaction is clear. These are situations in which NICS requires further research, possibly because of problems with the applicant.

According to NICS, approximately 69 percent of firearms transactions in Delaware are processed immediately without any further assistance needed from NICS.  The other 31 percent of transactions are subjected to additional review by NICS to determine final status while the Federal Firearm Licensed dealer is still on the phone. Of those, only 8 percent are delayed for further research. This means that 92 percent of background checks are completed in minutes (or at most, hours) as opposed to days.

President Obama recently announced plans for the FBI to hire more than 230 additional examiners and other staff to help process background checks 24 hours a day, seven days a week. That should help reduce the number of “delayed transactions.” However, it is not a cure-all.

While I know you share my concern and would like to address this problem at the root, we also all recognize the difficulty in moving such a proposal forward in Congress. I intend to move forward with legislation in Delaware that would close this loophole for Delaware firearm purchases and eliminate “delayed transactions” that result in transfers of firearms to people who have not successfully passed a background check, a practice the FBI recommends.

If we truly believe, as most Americans do, that any person who seeks to lawfully acquire a firearm must pass a background check before doing so, then this is a common-sense solution – no background check, no gun.

At least 18 states have addressed this delayed transaction loophole in a manner that reduces the number of prohibited people who are able to purchase firearms, and Delaware absolutely should be one of those states.

I look forward to us working together to address this situation and improving public safety throughout our state and our country.


Valerie Longhurst
House Majority Leader
15th District

Longhurst - Congressional Delegation - Background Check Loophole.pdf125.98 KB