"The Charleston loophole": Purchases by people barred from buying guns skyrocketed in 2020

An unprecedented number of people who are legally barred from owning guns managed to buy them in 2020 through the so-called "Charleston loophole," according to data obtained by the advocacy group Everytown for Gun Safety.

The "loophole" allows gun dealers to complete sales after three days if a buyer's background check has not been completed by the FBI. If the agency later determines that the buyer should not have been allowed to get the gun, it refers the case to the Bureau of Alcohol, Tobacco, Firearms and Explosives, which is tasked with recovering it. There were 5,807 cases in which gun purchases should have been prohibited last year through November 3, 2020, on pace to roughly double the 3,139 total for all of 2019.

Everytown for Gun Safety obtained the data through a Freedom of Information Act request filed to the ATF on November 3, 2020, which is why the numbers do not reflect the entire year.

Rob Wilcox, Everytown's deputy director of policy and strategy, said gun sales and background checks surged in 2020, driven by a confluence of crises: the pandemic, civil unrest and election uncertainty.

"When we first started seeing this surge in sales and background checks, we immediately asked ourselves the question of what will this do to the kind of long-standing loopholes that are dangerous and have been exacerbated in the past, but have the potential to get worse," Wilcox told CBS News. "And we now know what we've been suspecting for months, amid last year's spike in gun sales there were dramatic increases in the number of sales to people who shouldn't have guns."

Each year, the FBI flags thousands of "Charleston loophole" cases to the ATF, but the true number of cases is not known. Hundreds of thousands of background checks each year are never completed because the agency is required to purge records after 90 days. Everytown estimates that in 2020, more than 438,000 background checks were purged without being completed, more than doubling 2019's roughly 207,000. 

It's unclear how many background checks go through as sales after three days because some major retailers like Walmart, on their own accord, won't complete the sale unless the check is finished.

Licensed gun dealers have been submitting background checks through the National Instant Criminal Background Check System since 1998, and most checks are completed quickly. FBI data show there were nearly 40 million background checks conducted in 2020, far higher than the average of 26 million in the previous five years. While about 1% of checks resolved within three days are denied, far more, about 5%, are denied when the check lasts between three and 90 days. Those denials are most often for prior felonies or domestic abuse, according to Everytown.

Senator Richard Blumenthal said Tuesday that he plans to introduce legislation that would close the "loophole."

"These statistics are a very stark call to action. Because clearly the 'Charleston loophole' is becoming a massive gateway to dangerous evasion of the background check rules," said the Connecticut Democrat.

The "Charleston loophole" nickname is a widely-used reference to the June 17, 2015, massacre of nine Black worshippers by neo-Nazi Dylann Roof inside Charleston, South Carolina's Emanuel African Methodist Episcopal Church. Roof was prohibited from purchasing guns but had managed to buy the gun used in the attack when his background check remained incomplete after three days.

Sharon Risher, a reverend whose mother and two cousins were among those murdered by Roof, tied the "Charleston loophole" issue to America's wider struggle against racist violence.

"The 'Charleston loophole' name for me means that you will remember the people that were killed in that church and not forget that white supremacy is at a level that we can't even imagine," Risher said.

The National Rifle Association and gun rights advocates have argued that delaying the purchase of a gun beyond the three-day wait could prove problematic for people who believe they need a gun to defend themselves from potential imminent danger.

Risher said that argument ignores the benefits of letting people cool off when they might be acting out of rage.

"It angers me that people can do something, not just for Black people, but for everybody, and they don't," Risher said. "Because we know gun violence kills more women than anything else. The wait might be an opportunity for some domestic abuser to cool down before he goes and kills a woman, or children."

While Risher is hopeful that Democratic control of the House of Representatives, Senate and White House might give Blumenthal's legislation a chance, she said she doubts it will succeed.

"To be totally honest, I don't think it's going to get done because if it could have gotten done, it would have happened before," Risher said.

Blumenthal acknowledged it faces tough odds.

"Her point is well-taken because this legislation would require 60 votes in the Senate. In the wake of the Sandy Hook (elementary school) massacre. We succeeded in getting 55 votes for a universal background check bill… so I hardly minimize the difficulty of mustering 60 votes, but this legislation would close the loophole that has devastating consequences, and her story shows how horrific and heartbreaking those consequences can be," Blumenthal said. 

"Her family members might still be alive today if the shooter there had been unable to buy a gun. In other words, if the Charleston loophole were not there," Blumenthal said.