Bill to Close Background Check Loophole Passes House

DOVER – The House gave final approval Tuesday to legislation from Rep. Ed Osienski and Majority Leader Valerie Longhurst that would close a serious federal loophole that annually allows thousands of prohibited persons to purchase firearms without passing a background check.

House Bill 325 cleared a final vote in the chamber after returning to the House with a Senate amendment. No House Republicans voted in favor of the legislation. It now heads to the governor for his signature.

Current 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 purchasing guns from lawful sellers on a technicality. According to the FBI, from 2010-14, gun dealers completed 15,729 gun sales to ineligible people due to the delayed transaction provision.

Last year, nine people were murdered in a mass shooting at a Charleston, S.C. church. The suspected gunman, Dylann Roof, purchased the firearm used in the killings through the delayed transaction loophole after a background check took longer than three days. It was later determined that the sale should have been denied due to a drug conviction.

Under HB 325, a person purchasing a firearm would need to pass a background check before a transaction could be completed. This would not impact the vast majority of gun transactions in Delaware, as 92 percent of background checks are completed in a matter of minutes, or at most, hours. This would eliminate the “delayed transactions” (also known as “default proceeds”) of guns being turned over because a background check takes longer than three business days.

As amended, HB 325 allows 25 days for a background check to be completed before a firearm could be transferred.

“For the average, law-abiding citizen, this bill would have no impact on their ability to purchase a gun. If you walk into a store to buy a gun and pass a background check, then you would be able to leave with your gun, just the same as you can today,” said Rep. Osienski, D-Newark. “This is not a hypothetical situation. It already has happened, and in at least one instance, it was a horrific tragedy.”

“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,” said Rep. Longhurst, D-Bear. “In addition to the issue of potentially dangerous people obtaining a firearm, we have to use ATF resources to retrieve guns from people who shouldn’t have had them in the first place.”

“Delawareans have made it clear that they want us to do what Washington won’t: pass meaningful gun-safety laws. House Bill 325 is common-sense gun-safety legislation that will protect Delawareans by making sure more gun sales only occur once a background check has been completed,” said Sen. Bryan Townsend, D-Newark, lead Senate sponsor of HB 325. “For the small percent of checks that can't be completed immediately, HB 325 gives law enforcement officials more time to make sure firearms do not end up in the hands of people who are prohibited from having them.”

According to NICS, in Delaware from 2013-15, 40 individuals successfully purchased firearms and were later determined to be prohibited from possessing a gun. In each case, the Bureau of Alcohol, Tobacco, Firearms and Explosives had to deploy officers to retrieve the weapons.

In most of these cases, background checks were denied only a few days after the three-day period passed. However, in some cases, a prohibited person has been able to possess a firearm for weeks before the background check catches up. In one 2013 case in Delaware, a fugitive from justice successfully purchased a firearm through this loophole. That background check did not reveal the person’s status as a fugitive until 43 days after the transaction was initiated.

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.

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