Closing the 'Charleston Loophole' by Adding the National Data Exchange Database to NICS Background Checks (H.R. 2319)

What is H.R. 2319?

(Updated March 20, 2021)

This bill — the 21st Century NICS Act — would improve the National Instant Criminal Background Check (NICS) system by allowing it to search the National Data Exchange (N-DEX) database when conducting criminal background checks for firearms purchases.

Argument in favor

While the FBI is already planning to give background check examiners access to the National Data Exchange (N-DEx) when background checks are delayed, that isn’t enough. Instead, N-DEx should be integrated into the NICS system, just like the other three databases that comprise NICS, so it’s queried every time a background check is completed.

Argument opposed

This bill is unnecessary, as the FBI has already announced plans to integrate the National Data Exchange (N-DEx) into the national instant criminal background check for gun purchases. It’s already expected that this will happen by 2020. While the FBI isn’t planning on integrating N-DEx to every NICS check, it isn’t clear that that’s needed anyway.

Impact

Gun purchasers; gun sellers; gun background checks; National Instant Criminal Background Check System; National Data Exchange; and the FBI.

Cost of H.R. 2319

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Tom Rice (R-SC) introduced this bill to close the “Charleston Loophole,” which allows gun sellers to sell guns to prospective purchasers without a complete background check if the background check can’t be completed within three business days:

“The National Data Exchange (N-DEX) aggregates criminal records from various federal, local, and state agencies to provide critical information to the criminal justice community. Although it is operated by the FBI, outdated agency policy prevents the FBI’s own background check examiners from accessing this database. If a request from a firearm retailer is referred to an FBI National Instant Criminal Background Check (NICS) examiner, current protocol sends them on a wild-goose chase for relevant information. Unable to legally access their own database, they have to fax requests to local law enforcement agencies and are prohibited from performing basic internet searches to find contact information. If three days passes without an answer from the FBI, the retailer can use their discretion on whether to complete the firearm sale. Not only does this prevent lawful citizens from exercising their Second Amendment Right to purchase a firearm, but as we know from the horrific shooting at the Emanuel AME church it allows the sale of guns to people who absolutely should not have them. Why have this database if it isn’t going to be used effectively? This common-sense and long overdue fix will grant background check examiners access to the N-DEX, allowing lawful citizens to purchase firearms without running into bureaucratic delays and keeping guns out of the wrong hands.”

Avery Gardiner, co-president of the Brady Campaign to Prevent Gun Violence, argues that it doesn’t make sense to deny access to any federal database that could contain relevant information for gun background checks to the appropriate parties:

“Government regulations can be cumbersome, but how does it make any sense to deny relevant information to people who are ... enforcing the law that helps keep guns out of the wrong hands? That does not make sense to me.”

In July 2018, the FBI announced plans to add the National Data Exchange (N-DEx) to the gun background check system. In a pilot study covering over a million gun background checks, the FBI’s Criminal Justice Information Services Advisory Policy Board found that adding N-DEx to the tools for vetting potential gun purchasers led to two dozen gun buyers who’d have otherwise been approved being denied approval to acquire guns they weren’t allowed to have, and seven more buyers were flagged for additional research. The buyers who were barred on the basis of N-DEx records included people with felony convictions, open arrest warrants, illegal drug use, and misdemeanor domestic violence crimes.

Currently, the FBI doesn’t plan to make N-DEx a part of initial NICS checks. Instead, it’ll allow background check examiners to query N-DEx when a background check is delayed. The agency hopes that this bill reduces the number of background checks that can’t be completed within the three business day deadline for their completion before gun sellers can legally sell guns to potential purchasers even in the absence of a completed background check.

This bill has 14 bipartisan cosponsors, including 12 Republicans and two Democrats.

Rep. Rice has introduced another bill relating to gun purchase background checks, the FAST NICS Act, which would do the exact same thing as this bill.

Of Note: The National Data Exchange (D-DEx) system is a national repository of criminal justice records submitted by agencies across the U.S. N-DEx contains incident, arrest, and booking reports; pretrial investigations; supervised release reports; calls for service; photos; and field contact/identification records.

N-DEx serves as an online tool for criminal justice agencies to share, search, link, and analyze information across jurisdictional boundaries, and helps investigators “connect the dots” between data on people, places, and things that may seem unrelated. Some of the information in N-DEx — specifically, incident and case reports, full DOJ case files, and corrections data — isn’t available in other FBI systems (the National Criminal Information Center (NCIC), International Identification Index (III), and Next Generation Identification (NGI)).

N-Dex is endorsed by a number of criminal justice associations, including: International Chiefs of Police, National Sheriffs' Association, Association of State Correctional Administrators, National Institute of Corrections, American Probation and Parole Administrators, Corrections Technology Association, Major Cities Chiefs Association, and Major County Sheriffs' Association.

Under federal law, anyone seeking to purchase a firearm at a federally licensed dealer must undergo a background check through NICS — which currently queries three different databases — before the purchase can be completed. The NICS currently queries the Interstate Identification Index, a collection of rap sheets; the National Crime Information Center, which stores details on people and property; and the NICS Index, which carries documents about people already known to be prohibited from gun ownership. During an NICS check, the gun dealer looks for any records that might show the potential purchase is banned from possessing firearms for a number of reasons, including a criminal record, a history of domestic abuse, or a serious psychiatric condition.

After Charleston mass shooter Dylann Roof killed nine African-American churchgoers in 2015, an internal review at the FBI revealed that he would’ve been blocked from buying the Glock .45-caliber model 41 he used in the shooting had the background check process been more stringent. In Roof’s case, the initial background check revealed a drug arrest, but NICS examiners couldn’t tell whether Roof had admitted guilt or been convicted, so they contacted local records officers to find out. After three days of failed attempts to determine Roof’s status, the dealer sold Roof the Glock. Had the examiner checked N-DEx, they’d have found a record showing that Roof admitted drug possession — which would have led to the denial of his gun purchase. At that time, it was legal for the gun purchaser to sell the firearm to Roof after the background check couldn’t be completed within three business days. After it was discovered, this glitch became known as the “Charleston Loophole.”

Media:

• Sponsoring Rep. Tom Rice (R-SC) Press Release
  
• Countable (Similar Bill)