Gun dealers are urged to wait on the FBI as firearm buyers flood the background check system during the coronavirus pandemic.
Thousands of U.S. gun dealers were urged not to finalize surging weapons' sales until the FBI completes background checks even if the review process extends beyond the mandated three business days.
The National Shooting Sports Foundation issued the advisory at the start of a rush on the firearms market as a crush of gun buyers flooded the bureau’s system during the coronavirus health emergency.
Larry Keane, general counsel for the firearm industry’s association, said the advisory was issued in March after dealers in more than two dozen states received notices from the bureau indicating that background reviews would not be completed in time, in some cases for up to 28 days.
“There is no question that the NICS (National Instant Criminal Background Check System) is overwhelmed by the volume,” Keane said, referring to record sales during the past two months in the midst of the pandemic.
In March, the FBI reported 3.7 million background checks, the most in a single month since the launch of the NICS in 1998; that was followed by 2.9 million last month – the largest number for April in the system’s history.
The FBI does not track actual gun sales, as multiple firearms can be included in a single transaction, but the NICS numbers are an important market indicator.
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The delays in processing background checks are probably due, analysts said, to the unprecedented volume of transactions coupled with NICS' limited or spotty access to records in jurisdictions where the pandemic has altered state and local government operations.
The law mandates that FBI analysts complete background checks within three business days of the proposed purchase. If the check is not complete within the time limit, federal law allows the sale to go forward.
“We are in uncharted territory here,” Keane said. “I don’t think Congress ever contemplated that a county clerk’s office might be closed because of a pandemic.”'Delays faced in recent weeks are unusual'
In a written statement, the FBI said the NICS "remains fully operational and will continue to process requests."
"The NICS Section appreciates the public's patience during this period of national emergency," the bureau said.
In a bulletin on the bureau's website, the FBI referred to limited operations in the states that could delay the timing of when weapons could be transferred to prospective buyers.
"Should a state choose to limit days of operation by completely closing state offices one or more days a week or even indefinitely, this could potentially impact the (weapons transfer) date," the bulletin says. "The NICS Section urges (dealers) to be cognizant of the impact this may have to your day-to-day operations, and also to stress the importance of adhering" to the firearms transfer dates provided by the FBI.
The bureau reminded dealers that federal law allows dealers to transfer firearms to prospective buyers "even if the NICS Section has been unable" to determine whether the buyers are eligible to make the purchases.
In its advisory to dealers, Keane's National Shooting Sports Foundation said it sought clarification from the FBI, adding that the "delays faced in recent weeks are unusual."
"In the meantime ... we advise you not transfer a firearm earlier than the date provided to you by NICS," the dealers' group said.
Keane said dealers have offered no resistance to the group's recommendation.
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Republican senators expressed concerns for NICS operations in a letter Monday to FBI Director Christopher Wray and Regina Lombardo, acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Citing the "surge in gun purchases," the lawmakers asked the FBI and the ATF to explain the delayed transactions and how they were reconciling the cases.
"Please provide us with an accurate accounting of the number of NICS checks that have been placed in delayed status and the average time that it is taking NICS to resolve those delayed checks," the senators wrote. "Please also provide an accurate accounting of the number of delayed transactions that have resulted in approved or denied transactions."'Fear' that system will be overrun by spike in sales
In a letter to the FBI and ATF last month, Democratic senators expressed "fear" that the NICS system would be overrun by the spike in gun sales.
"Even absent a public health emergency, law enforcement does not always have enough time to accurately determine pre-sale whether someone is a prohibited buyer,” Massachusetts Sen. Edward Markey said in the letter also signed by Connecticut Sens. Richard Blumenthal and Chris Murphy. “We fear that a drastic increase in gun sales in response to the coronavirus pandemic could overwhelm NICS and allow prohibited individuals to obtain firearms."
In 2018, the Democratic senators said, more than 270,000 background checks were not completed within the three-business-day limit, resulting in more than 4,800 gun transfers to buyers who should have been denied because of criminal records or other conditions that disqualified them from making gun purchases.
Christian Heyne, vice president for policy at the Brady Campaign to Prevent Gun Violence, said he was "encouraged" by the unusual action taken by the dealers' group to abide by the FBI timelines. He expressed concern about retailers who might disregard the delayed transfer dates and provide weapons to those who may not be eligible to purchase them.
"I'm afraid that we are going to be dealing with the implications of these gun sales much longer than the pandemic," Heyne said.
The surge in sales, along with the increasing pressure on the FBI's gun check system, argues for extending the three-day time limit to complete background checks, Heyne said.
"At a minimum, there should be a declaration of emergency powers so that investigators can have a little more time" to complete background checks, Heyne said.
Keane said the sales and the burden on the FBI system are not likely to relent as the pandemic rolls into a divisive presidential election.
Democratic candidate Joe Biden, when he was in the Senate, supported a ban in 1994 on some semiautomatic weapons. During his presidential campaign he has advocated for expanded background checks, "red flag laws" aimed at keeping guns away from people suffering from mental illness, limits on how many guns people can buy and expanding the list of prohibited buyers.
President Donald Trump has been embraced by gun rights advocates, including the National Rifle Association.
"We don't think the volume of sales will subside as we move closer to the election," Keane said. "The difference between the two candidates is too stark."
In anticipation of a sustained buying spree, Keane said, the government should boost the FBI's capacity to keep pace. He said $20 million set aside for NICS in the next fiscal year should be provided immediately.
"NICS needs the money now," Keane said.
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