Taking up the crisis of gun violence with the same energy as so many other long-awaited priorities, today the New York State Assembly and State Senate passed a comprehensive package of bills to reduce gun violence, promote gun safety, and keep firearms from falling into the wrong hands.  This package includes a bill by Assemblymember Amy Paulin (D-Scarsdale) to increase the time interval before a firearm, shotgun, or rifle may be sold to an individual whose background check requires additional investigation by the Federal Bureau of Investigation (A.2690).

Under current law, approximately 9-11% of the background checks for gun purchases utilizing the National Instant Criminal Background Check System (NICS) do not come back as either “proceed” or “deny.” They come back designated as “delayed,” and the case is referred to an FBI examiner for additional investigation to determine if the buyer is one of 9 categories of prohibited purchaser. However, after three business days, if the background check still has not come back with a clear “proceed” or “deny” designation, the buyer can be provided the firearm at the dealer’s discretion.

Assemblymember Paulin’s bill would increase the time interval before the dealer has the discretion to hand over the firearm to 30 calendar days so that the FBI has sufficient time to complete their investigation.

“Most background checks come back quickly and cleanly from NICS,” said Assemblymember Amy Paulin. “My bill will not hinder a law-abiding citizen's ability to purchase of a gun. But I’ve talked to the FBI and on too many of these cases, they just need more time. Giving law enforcement time to do its job to keep guns out of the wrong hands ought to be an issue we can all be united around.”

The Gifford Law Center to Prevent Gun Violence has nicknamed this issue with the background checks system the “Charleston loophole.” Dylann Roof, the confessed shooter at Emanuel African Methodist Episcopal Church in Charleston, received a “delayed” designation on the background check when he purchased the weapon that he would later use in that tragedy. The NICS database had the information that Roof had a prior drug arrest, but did not have the information that he had confessed to that charge, which would have been sufficient to deny his background check. An FBI examiner did not receive the case files from local authorities within the three business day window, and the dealer had discretion under the law to hand over the gun to Roof.

Although previous versions of the bill had passed the Assembly during prior sessions, they had never received a vote in the State Senate. This year’s version is a more robust bill that gives law enforcement officers a full 30 days to complete their investigation. This is particularly important to prevent those convicted of domestic violence misdemeanors, which takes the longest of any prohibited factor to be noted appropriately in NICS.  According to a 2016 report by the Government Accountability Office, 30% of cases of domestic violence misdemeanors take 11 calendar days or more to be adequately taken into account in NICS, making it entirely possible under current law for someone convicted of domestic violence to begin a background check, receive a “delay” designation, but still receive a gun from the dealer before NICS could accurately determine that the individual should be denied the gun. This has the potential to create an incredibly dangerous scenario for victims of domestic violence. 

Finally, persons who are on the FBI’s Terror Watch list will receive a “delayed” designation on their background checks. Under current federal law, being on the Terror Watch list in and of itself is not sufficient to deny an individual a gun, but it is a flag for the FBI to conduct more rigorous scrutiny of the individual’s background. This bill would extend the period of time in which that investigation could discretely take place before the dealer would be permitted to hand over a gun.