You might call it a “super assault weapon,” the seller brags on his armslist.com posting.
The AK-47 features grenade sights, a bayonet lug and three other add-ons — any of which would make it illegal under the 2013 assault weapons ban that has no chance of passing Congress.
He’s willing to sell it in person, if the buyer can meet in Boca Raton. No background check.
And that’s the key part of the deal: No red tape; no oversight.
The 21-year-old Palm Beach State College student legally can sell his Yugoslavian-made automatic rifle to a total stranger because of something known as the gun show loophole. Private gun sales, like this one, do not require a background check.
Such a sale would be banned, under legislation now being considered in Congress. Virtually all gun sales would be subject to a background check to ensure that the buyer is not a criminal, and does not have a mental illness or some other disqualifier.
Closing that loophole remains one of the most popular gun measures in the eyes of the American people. A stunning 88 percent of Americans support background checks on all sales, a new Quinnipiac University poll reports. But even that popular change will have to survive a bloody fight in Congress, as the prospects for any new gun legislation has faded in the months since the Newtown school shooting.
As lawmakers in Washington debate the effectiveness of expanding the checks, they might learn from Florida.
The federal government has invested more money in the state than nearly any other under its National Instant Criminal Background Check System record improvement program. Florida has won $5.5 million in grants to upgrade its background checks.
And yet the state is left with an underlying criminal database built on 1970s technology that officials have said is at risk of “major failure.” FDLE issued this warning in 2010: “While the Florida repository has not ‘broken’ yet, the risk of system failure increases each year.”
Those who want to expand checks argue that a system need not be perfect to save lives. Checking the background of more potential buyers has to be an improvement over the current system, they say, which allows roughly 6.6 million weapons to change hands through private sales with no oversight, according to a report funded by the Department of Justice called Guns in America.
“In my experience, the background check is the single most important thing to be done to prevent gun violence,” said David Chipman, a retired special agent with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives who now consults with Mayors for Illegal Guns.
Others argue that more checks will have little effect on violence.
“Somebody who’s violence-prone, who wants a gun and doesn’t pass a background check isn’t frustrated from getting a gun,” said Robert Levy, one of the lawyers on the landmark Heller case in which the Supreme Court recognized an individual right to bear arms. “He gets a gun on the black market, or, most likely, he steals a gun.”
Checks deliver fast answer
Passing a background check takes about as long as waiting for a Starbucks barista to brew and froth a frappuccino.
In Florida, in 95 percent of cases, a gun dealer makes an inquiry and gets a thumbs up or down in about four minutes.
Florida’s gun check hot line is among the busiest in the nation, making the strength of its background checks critical to the national gun debate. In 2012, the state ran 834,319 checks, according to the FBI. Only California, Texas, Pennsylvania and Illinois and Kentucky ran more.
The state taps into the NICS to determine whether someone is prohibited from buying a weapon. It is made up of three national databases, managed by the FBI, that cover criminal history; information, such as protection orders; and firearm prohibitions.
That single check is all that’s needed in most cases to get an answer — and fast.
Among those 5 percent of cases in which the background check doesn’t spit out an immediate answer are red flags: Cases in which, say, there’s an arrest record for a disqualifying offense, but no clear outcome. If the person was found innocent, he has a right to a weapon.
So the Florida Department of Law Enforcement turns to the local clerks’ offices. Staffers have eight hours to find the answer, under state law. In the age of smart phones that send data nearly instantaneously, their search may take them off the grid. They search file cabinets, dusty off-site warehouses and files on microfilm.
These manual checks are so important because the law places the rights of gun owners above its duty to ensure safety.
If law enforcement can’t determine in three business days whether a person is disqualified from buying a weapon, the dealer is allowed to turn over the gun. Then if a disqualifier is found after the fact, it’s up to police to try to get the gun back.
State system prone to failure
The state of Florida recognized weaknesses in its system and applied to the federal government for help.
The state recently upgraded its computerized firearm purchasing system. Clerks now can enter disqualifiers directly into a web-based program, instead of having to fax it to the state and wait for someone there to enter the data. But the main database from which it pulls criminal records has been patched so many times and is so old that it is at risk of bringing down the entire system.
The Computerized Criminal History System contains arrest records on more than 6 million people, supplied by more than 400 law enforcement agencies. Those records grow by nearly 1 million a year.
Most records since 2004 are electronic, but not always in smaller counties, the state explained in its federal grant application. In the 1990s, most fingerprints were submitted on paper cards and manually entered in the criminal repository. As of 2010, 6 percent of arrests were still being reported on paper.
Record retention laws also have made building a complete history of criminal and civil violations difficult. Some court records were required to be held for only a year and others for five years. While felony convictions are supposed to be retained, the state reported those records were sometimes missing.
In 2010, the state flagged as many as 65,000 domestic violence convictions found in court records that were not tied to the database prohibiting gun purchases.
One of the system’s greatest weaknesses is its age.
Florida’s central repository for criminal history was built in the 1970s, when arrest information was keyed in by hand. Since then, the system is “largely unchanged,” according to the grant application.
The database’s programming language is so outdated that the state struggles to find programmers.
“As existing staff near retirement, the state is left with a legacy system that has been patched and ‘customized’ over nearly 40 years with little documentation,” the application read. “The risk of a major failure increases.”
A failure would be disastrous. The system contains more than two million records that could disqualify someone from legally possessing a gun. The state called the system “critical to firearm decisions across the nation.”
Florida has finished a needs assessment on the system it warned was “considered outdated 20 years ago.” In 2012, it received additional federal grants toward replacing it.
State moving to improve
People who make a living using data have an expression: garbage in, garbage out. If the data is wrong or not existent, a search of it has no hope of producing a meaningful result.
Florida officials have worked hard to ensure that more data can be accessed in background checks.
In 2007, the legislature passed a law requiring clerks to submit mental illness adjudications every month to comply with a federal law forbidding people with a mental defect from obtaining a weapon.
Florida clerks and law enforcement have been voluntarily adding adjudications prior to 2007. The stakes are clear:
In 2009, Paul Merhige murdered four relatives at a Thanksgiving dinner in Jupiter. He had been involuntarily committed at least three times, police said. Yet, he was able to pass a background check and buy six guns.
That’s because his last-known commitment occurred a year before the state law required reporting of involuntary commitments, so the records were not in the database.
The state has identified other gaps. Of particular concern are older records missing from the state database. Clerks offices have to find those files and input them. As the demands on clerks have grown, funding and staffing have been cut. Since 2009, clerks’ budgets throughout the state have been cut 25 percent. In Palm Beach County alone, the office lost 111 employees.
South Florida clerks, with some of state’s biggest and busiest offices, have had the most trouble turning over timely records.
In Palm Beach County, the office gets about 10 requests a day for a historical record search, according to the FDLE. The records they’re seeking may be up to 50 years old.
Sometimes the only information the county has to go on is a name. If it’s a common name, it can take hours of research to determine which records belong to the person in question. Other times the state can provide date of birth, an arrest date or case number, too, said Kathy Burstein spokeswoman for the Palm Beach County Clerk’s Office.
“There are many older cases that we must keep, but (we) don’t have the physical space in the courthouse to hold them all,” Burstein said.”
Records are spread throughout the county, in off-site warehouses and in courthouses in Delray Beach, Palm Beach Gardens and Belle Glade.
If a missing record is connected to someone actively seeking to buy a gun, researchers have three days to uncover the person’s record before the gun is placed in his hand.
In its 2012 grant application, the state said the historical records project “carried a significant impact” on firearms sale decision. The state warned of a “workload and public safety” issue when a county misses the three-day deadline and finds a disqualifier after the gun has been turned over.
In 2011, Palm Beach County found an answer within three days in only 58 percent of these manual checks, FDLE said. The county’s record has improved with federal money to hire another staffer.
In its latest report to the state, the county conducted 533 historical searches over three months with a 99.9 percent success rate in finding an answer in three days.
Dual system undermines safety
The current background check system is doomed, critics say.
Yes, technology should be upgraded. Data reporting can improve. But a missing file here or there, a late response is a blip, said Chipman, the former ATF agent. The real problem is the millions of guns changing hands with no check at all.
At a gun show, you might find a private seller seated at a table next to one manned by a licensed dealer. If a seller walks to the first table, he can buy with no background check. But before he purchases the exact same weapon from the licensed dealer, his background is checked.
This dual system is the biggest failure of the current background checks, Chipman said.
“Imagine if after 9/11, there was a decision made that 60 percent of people (at airports) are going to go through the screeners and take off their shoes, get their luggage searched and we’re going to allow 40 percent of people to just walk on the plane,” Chipman said. “No one would think that’s smart.”
That’s the kind of free pass private sales now get.
Private sales also are moving online. As long as the online sale is completed in person, even to a total stranger, no background check is required. Guns that must be shipped have to be sent through a licensed dealer who will run a background check.
William, the Palm Beach State College student, asked that his last name not be used. He hopes to get as much as $1,500 for his AK-47.
William said the current background check system is full of holes, and assumes a buyer is guilty before being proven innocent.
He points to more than 1,000 times in which weapons were sold, after background checks, to people on the terrorist watch list. The federal government’s General Accounting Office reported that loophole.
William has no concerns about selling his weapon to someone he’s never met.
The sale will take place in daylight. He plans to take down the buyer’s license number, get a signature and create a bill of sale.
“A criminal doesn’t want their name, driver’s license number and signature linked to a firearm that they want to use to commit a crime,” he said. “
But weapons sold online have been bought by people who should be barred from having them, and who used them to murder.
Last year, a Wisconsin man bought a gun online and then used it to kill his wife and two others at a spa where she worked.
A judge had issued a restraining order against the man for domestic abuse, which should have made it illegal for him to buy a weapon. But he turned to the unregulated private market. A day after he bought the gun, he used it in his shooting spree and then killed himself.
Where do criminals get guns?
Gun control advocates and the pro-gun lobby agree on one thing: Most criminals aren’t buying guns from licensed dealers or from private sellers.
Data from the ATF shows that in traces of guns used in crime, 85 percent of the time, the criminal who used the gun was not the buyer.
Johns Hopkins University did a survey of inmates in state correction facilities and found that nearly 40 percent got their weapon from a friend or family member and nearly 38 percent got it from a black-market supplier. Licensed gun dealers were the source in just 11 percent of cases. Just one in 10 offenders reported they had stolen the weapon.
The opposing camps in the gun control debate reach very different conclusions about what the data mean.
Expanding background checks will do little to curb gun violence, said Richard Feldman, head of the Independent Firearms Owners Association and a former NRA political director.
The FBI reports that just more than 1 percent of background checks result in a denial.
Unlike leaders from his former organization, Feldman said he’d be willing to support extending background checks to private sales at places like gun shows if it would prevent even a small number of guns from landing in the hands of people who are barred from having them.
But background checks are needless in sales between family members, friends, neighbors or co-workers, he said.
“I think it’s only reasonable that the proponents show us this is some big source of crime guns,” he said.
The gun control lobby is too busy focusing on the wrong things “instead of focusing on the problem, which is how do criminals obtain guns. The gun of choice to America’s criminals is the first gun they can get their hands on.”
But Jon S. Vernick, co-director of the Johns Hopkins’ Center for Gun Policy and Research, said states with more comprehensive background checks do, in fact, deter crime.
“You discover the places that do have private sale background checks do have much less trafficking,” he said. “You increase the risk associated with that unlawful sale.”
His center researched guns traced after crimes and found that fewest crime guns originated from states with regulation of private sales, including California and New York.
“No one should believe that universal background checks will prevent all criminals from getting guns. We don’t hold any criminal intervention to 100 percent perfection,” Vernick said. “You also have to ask yourself what’s the downside of having a private sale background check. For law-abiding gun owners it should have very little downside.”
Staff Writer Alexandra Clough contributed to this story.
The National Instant Criminal Background Check System, or NICS, is made up of three separate national databases, managed by the FBI.
The Interstate Identification Index is the primary repository for criminal history records.
The National Crime Information Center contains 19 different files, including records on people against whom protection orders have been filed.
The NICS Index contains records on 10 different federal firearm prohibitions that are not housed in the other database. They include people dishonorably discharged from the military and those involuntarily committed to a mental institution.