Bill Would Close Loophole, Require Completed Background to Purchase Firearm

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

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.

Under House Bill 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.

“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. “The premise is simple: No background check, no gun, period.

“This is not a hypothetical situation where someone could walk into a store, buy a firearm without passing a background check and then use it in a crime. It already has happened, and in at least one instance, it was a horrific tragedy.”

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.

“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.”

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.

HB 325 allows 30 days for a background check to be completed before a firearm could be transferred. However, federal rules require that after 30 days, a person must resubmit a background check to purchase a firearm.

“As state lawmakers, we must do more than hope the federal government is able to complete its background checks in a timely manner,” said Sen. Bryan Townsend, D-Newark, the prime Senate sponsor of HB 325. “We have a responsibility to keep Delawareans safe, and this law does that by barring gun sales from occurring until that federal background check is completed and substantiated. In doing so, we take an important step toward preventing the kind of firearm sale that enabled the Charleston church massacre last summer.”

According to the FBI, background checks can be delayed because the person “has been matched with a similar name and similar descriptive information associated with a record containing a potential state or federal firearm prohibition. The NICS Section must obtain additional information before making a final determination of a Proceed or Denied for the firearm transfer.” 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.

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.

HB 325 has been assigned to the House Administration Committee.