In-Depth: Rep. Tom Rice (R-SC) introduced this bill to improve the national instant criminal background check system (NICS). Stephen Morris, who used to run the FBI’s background check division, has long pushed to give access to N-DEx for gun purchase background checks. He says, “If there is a system that can be searched, we should be searching it.”
Frank Campbell, who was the Dept. of Justice (DOJ) lawyer in charge of setting up the National Instant Criminal Background Check System (NICS) in the nineties, says the status quo, in which the FBI isn’t querying an existing database to screen potential gun purchasers, “just doesn’t make sense”:
“The idea that the FBI would have info in a database that would prohibit a gun transaction — but not make it available to the background check examiners — just doesn’t make sense.”
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.
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.
The FBI began exploring the possibility of using N-DEx in 2015, after an internal review revealed that Charleston mass shooter Dylann Roof would’ve been blocked from buying the Glock .45-caliber model 41 he used in the shooting had N-DEx been checked during the purchasing process. 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.”
Andy Savage, a Charleston attorney who represents several families who lost loved ones to Roof’s shooting, says N-DEx’s incorporation into NICS is overdue:
“It's amazing it's taken more than three years before an initial step can be taken by the FBI. There is no excuse under any circumstances for Dylann Roof to have ever gotten a weapon. The facts are egregious.”
Summary by Lorelei Yang
(Photo Credit: iStockphoto.com / Bill Oxford)