Some Oregon gun shops selling weapons to customers who might fail a background check

By GRANT STRINGER/Oregon Capital Chronicle

As Oregonians scramble to purchase firearms before the state’s new gun regulations go into effect, some gun shops are using a loophole to potentially bypass background checks and sell firearms to anyone, including to people who might not qualify to legally own them.

Measure 114, which was narrowly approved by voters last month, will tighten Oregon’s gun regulations. Due to go into effect on Dec. 8, it will ban magazines that hold more than 10 bullets and require gun owners to acquire a permit and undergo training before purchasing a firearm.

Since the measure passed, gun shops have faced a surge in demand. Under current law, purchasers are required to pass a background check before buying a gun. But Oregon State Police, which process those, is overwhelmed with a backlog of requests that could take months to process. Under a federal loophole, if a background check is not processed in three days, dealers can legally sell a gun, rifle or semi-automatic weapon.

The owner of a gun store in Tigard, who spoke to the Capital Chronicle on the condition of anonymity, said he’s no longer waiting for background check to clear.

He said he and some other gun shop owners he knows are completing all sales, no matter the weapons sold, unless Oregon State Police determine a customer has failed a background check within three business days. He said he’s sold about 500 firearms this way.

“All the people releasing these (firearms) — we’re not happy about this. But we don’t have a choice,” the dealer said.

Other gun shops are openly advertising the loophole to encourage sales. J&B Firearms in Beaverton announced on Nov. 20 in a popular gun blog that it would invoke what it called a “nuclear option” to speed up the process.

In the post on the Northwest Firearms message board, the store encouraged customers to buy a weapon, submit information for the background check and return three days later – but before Thursday, Dec. 7 – to pick up their purchases.

“We also invite and encourage all other Oregon (federal firearms licensees) to join us in adopting this policy,” the store said in its announcement. “If this state wants to take us down, we believe we should go out with a bang, not a whimper.”

The policy is controversial within Oregon’s gun industry, according to interviews with five gun dealers across Oregon and sometimes-fierce debate in gun advocates’ Facebook groups. But the push for sales underscores the concern among many sellers and buyers who fear the new law will curtail firearm sales until officials implement Measure 114’s permit system. It could take months for the Oregon State Police to set up this new system.

It’s unclear how many firearm dealers are selling weapons to customers after three days while the background check is pending. Lars Dalseide, a spokesperson for the National Rifle Association, would not say whether he thinks store owners should do so. Neither would Kevin Starrett of the Oregon Firearms Federation, a plaintiff in a legal challenge to Measure 114.

It’s also unclear what would happen if a customer bought a gun and later failed a background check. In those cases, the agency currently notifies local law enforcement and the dealer that sold the firearm, according to Kyle Kennedy, a spokesperson for OSP.

But law enforcement agencies have limited resources and might not be able to recover firearms sold to people who fail background checks, said Daniel Webster, a professor and researcher at the Johns Hopkins Center for Gun Violence Solutions in Maryland. He said agencies would probably have to prioritize disarming dangerous people, such as those convicted of violent crimes.

A spokesperson for the Beaverton Police Department did not respond when asked twice whether Oregon State Police had sent any such notifications.

Some Oregon sheriffs have said they won’t prioritize enforcing Oregon’s new gun regulations. Linn County Sheriff Michelle Duncan said in a statement on Facebook that her office will not enforce Measure 114’s magazine capacity limits, calling it a “terrible law for gun owners, crime victims and public safety.”

‘The Charleston loophole’

Some researchers and gun control advocates say the three-day rule gives dealers the power to skirt background checks that are required across the country. Oregon and federal law bar customers with criminal histories, arrest warrants, mental health commitments or those who have other issues from purchasing a gun. The background checks also apply to private transfers of firearms except between close family members, according to a spokesperson for the Oregon Firearms Federation.

Gun control advocates call the three-day rule the Charleston loophole, named after a horrific 2015 mass shooting in Charleston, South Carolina, when 21-year-old white supremacist Dylann Roof illegally obtained a firearm before the background check was complete and killed nine worshippers at a church.

Measure 114 will close the loophole by requiring a permit system. Gun proponents in Oregon say that in the meantime the loophole is legal.

“If the gun grabbers don’t like it, it’s their own fault for creating the emergency. It(’ s) VERY, VERY legal,” John Price, an administrator of the gun-advocacy group Good Guys with Guns Oregon, said on Facebook.

An employee at J&B Firearms who declined to be named said “plenty” of stores were selling firearms after three days.

Not all gun dealers are doing so, however.

Carlos Ortegon, who manages the gun shop Umpqua Survival in Roseburg, said he’s turning down customers asking him to honor the rule because he won’t risk arming people who might fail their background check. He thinks shop owners shouldn’t engage in the practice.

“They’re risking putting guns in people’s hands who should not have them,” he said.

Ray Gunter, owner of Emerald Valley Armory in Creswell, said he’s not selling firearms until someone passes a background check because doing otherwise might be illegal. He echoed concerns from several other gun store proprietors that the policy might open them up to legal liability and license seizure.

But like the four other gun dealers interviewed for this story, he expressed a deep frustration with the background check backlog at Oregon State Police.

Its Firearms Instant Check System unit received more than 48,000 requests for a background check between Nov. 9 and 22, according to the agency’s data. The surge has slashed its rate of ruling on a background check within three days from 84% between 2018 and Nov. 8 —  Election Day — to 61%  between Election Day and Thanksgiving, Kennedy said.

Oregon State Police are now delaying all new requests for background checks.

Starrett, of the Oregon Firearms Federation, said he’s not sure when the three-day period technically begins — when the gun dealer submits the background check, or when state police notify the dealer that they’ve started looking at it. The latter case would narrow the rule’s application to a smaller group of customers.

That confuses some gun shop owners and managers, including Gunter in Creswell. He said he’s not taking advantage of the three day rule, but might consider changing his policy if he had more clarity, he said.

Unintended consequences

The store owner in Tigard said smaller dealers needed to adopt the three-day sales policy to survive.

Several gun stores have already announced they will close in the coming months, including Gunrunner Arms in Junction City. On its website, the store blamed uncertainty around Measure 114 and the current backlog for its expected closure.

“With the source of our income being outlawed, we will not be able to stay open past the first of the year,” its website reads.

At The Outdoorsman in Ontario, owner Julie Clark is turning away all customers seeking a new gun, despite the financial risk of getting stuck with her inventory. Clark is considering transferring her stock across the border to Idaho and setting up shop there at a big expense, she said.

Webster, the Johns Hopkins researcher, said Measure 114’s intent to make firearm sales safer in Oregon could be blunted if enough Oregon gun shops bypass background checks.

“To me, it underscores why you need a licensing system,” he said.

• Oregon Capital Chronicle is a nonprofit Salem-based news service that focuses its reporting on Oregon state government, politics and policy.