Gun sales have been brisk at Tick Licker Firearms in Salem since Measure 114 passed in November 2022. (Photo by Connor Radnovich/Oregon Capital Chronicle)

While the enactment of the voter-approved firearm law awaits litigation, neither state nor federal law enforcement agencies are tracking how often Oregonians buy guns before failing a background check through a federal loophole.

They also aren’t tracking whether police seize weapons sold to Oregon buyers who are disqualified from owning them due to their criminal history, domestic violence situation or mental health status.

Measure 114, approved in November, would close a background check loophole that allows sellers to hand guns over to purchasers whose checks aren’t processed within three business days. The law was temporarily blocked and hasn’t gone into effect due to an ongoing lawsuit in Harney County.

The law’s passage kicked off a gun-buying frenzy in Oregon that slowed the state’s background check process and created a massive backlog, according to Oregon State Police data. Some gun dealers have even encouraged people not to worry about passing a background check and buy a firearm anyway. 

Owning a firearm in Oregon

Under Oregon law, you have to be 18 to buy a firearm in Oregon, and you cannot have been convicted of a felony or found as a minor to have committed the equivalent of an adult felony. The law also excludes firearm ownership to those who:

Have been committed to the Oregon Health Authority due to mental illness;

Have been found to be mentally ill and excluded from purchasing a firearm;

Is subject to a domestic violence protective order;

Has been convicted of a domestic violence misdemeanor.

It’s unclear how many weapons might have been sold to disqualified owners after the election, or whether Oregon’s gun industry is broadly trying to exploit the loophole: Federal, state and at least several large local law enforcement agencies aren’t tracking how many Oregonians might have bought a gun through the loophole before failing a background check, or why these buyers failed.

Penny Okamoto, director of the Ceasefire Oregon Action Fund, helped write and pass Measure 114. She said there’s “no idea of knowing” how many buyers have used the loophole to buy a gun.

That data is available for dozens of states participating in the federal government’s background check system. In 2020 and 2021, the FBI tipped off the federal Bureau of Alcohol, Tobacco, Firearms and Explosives to more than 11,560 purchases in these states by buyers who later failed a background check, according to the FBI’s most recent program report.

But the FBI and ATF do not collect this data for Oregon, agency spokespersons said. 

No Oregon agency tracks sales of firearms, even of weapons like AR-15s that have been used in mass shootings. 

The agency messages local law enforcement agencies when someone in their jurisdiction bought a gun before the background check was complete, Kennedy said. But the agency doesn’t have a database of those instances and it doesn’t track whether police ultimately seize the firearm.

The Capital Chronicle reached out to five large police agencies in Oregon for information about these seizures. Three police agencies responded: the Portland Police Bureau, Lane County Sheriff’s Office and Washington County Sheriff’s Office.  These police departments don’t keep data about gun seizures according to spokespersons. 

Daniel DiPietro, a spokesperson for the Washington County Sheriff’s Office, said the department investigates illegal gun sales when tipped off by state police, but he wasn’t aware of any investigations involving the loophole. 

When asked for department policy on gun seizures, DiPietro said investigations are “on a case by case basis.”

Advocates worried

The lack of data alarms gun control advocates like Okamoto who sought to tighten the state’s gun laws, including ending the three-day loophole with Measure 114.

Okamato said use of the loophole would lead to “excess deaths” in Oregon.

The gun regulations narrowly approved in November would require owners to first pass a background check and safety training before obtaining a permit and a firearm. That would end the three-day “Charleston loophole,” which allowed a gunman with a pending background check to buy a Glock pistol and kill nine people in a South Carolina church in 2015.

Measure 114 would also ban magazines holding more than 10 rounds of ammunition. The law was due to go into effect in December but Harney County Circuit Court Judge Robert Raschio has placed it on hold pending the litigation.

Under current law, gun dealers are required to request a background check on purchasers before handing over the weapon. Last November, those requests increased to more than 85,000, a 240% jump from the first ten months of 2022, according to recent court filings. The surge slowed down processing, according to Oregon State Police. Before Measure 114 passed Nov. 8,  state police conducted a background check within three days 83% of the time in 2022. That rate plummeted to 53% between Nov. 9 and Jan. 4, Kennedy said in an email. 

Kelly Drane, research director at the Giffords Law Center, based in San Francisco, California, said it’s likely that more Oregonians are now illegally buying guns through the loophole because state police are taking more time to process background checks.

The state police agency keeps data showing why purchasers fail background checks in Oregon, and how often. From 2017 through 2021, the check unit approved about 95% of gun transactions each year.

About 6,570 firearms purchases were denied in that time, mostly because the purchaser had been convicted of a felony or was on probation, according to a 2021 program overview.

In 2021, the most recent data available, the agency issued 130 denials due to past conviction of domestic abuse charges, 58 for mental health commitment and 12 due to a restraining order.

But the agency doesn’t check whether someone had already picked up their new firearm before being denied, or whether police retrieved it. Those seizures are up to local law enforcement, said Jason Chudy, a spokesperson for the ATF.

Kevin Allen, a spokesperson for the Portland Police Bureau, said he wasn’t sure how often the bureau retrieves firearms illegally sold in this way because the department doesn’t track this.

He said in an email, “We do not want people having guns who by law should not be able to purchase them.”

DiPietro said use of the loophole was probably “few and far between” in Oregon.

In 2019, former House Majority Leader Jennifer Williamson, a Democrat, sponsored a bill that would have required the state police department to study and release a report on illegal gun sales. The bill died in a committee.

Oregon Capital Chronicle

Oregon Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Oregon Capital Chronicle maintains editorial independence. Contact Editor Lynne Terry for questions: Follow Oregon Capital Chronicle on Facebook and Twitter.

Grant Stringer is a freelance journalist in Oregon who writes for national newspapers like the Washington Post and outlets in the West, including the Capital Chronicle and the Oregonian/OregonLive. He specializes in features, solutions journalism and social policy stories.