A little-noticed mandate from the Trump administration has cleared the way for some people with outstanding arrest warrants to purchase guns, a change that worries law enforcement officials who say it could be allowing dangerous criminals to arm themselves.
Six months after the U.S. Department of Justice issued a memo redefining who is a fugitive from justice — and cannot have a gun — more than a half a million names have been dropped from a national law enforcement data base used to determine who may purchase a firearms and or obtain a carry permit, according to FBI records provided to The Atlanta Journal-Constitution.
“I cannot believe this has happened,” Vernon Keenan, the director of the Georgia Bureau of Investigation, told The AJC.
“I told them this is a problem,” he said about a conversation he had with the FBI about the change in fugitive definition.
Supporters said the guidance was needed to clear up confusion in the law.
Who is a Fugitive?
Fugitives are among the groups of people who are barred from buying a gun under federal law. But who actually qualifies has been the subject the subject of an almost decade-long dispute between the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives.
The FBI had argued that a fugitive from justice was anyone with an outstanding warrant, regardless of whether they had crossed state lines to avoid prosecution. The ATF, which is charged with retrieving any guns sold to fugitives, said it should apply only if those people had fled a state to avoid prosecution there.
In a Feb. 15 memo, the Justice Department sided with the ATF — and the narrower definition.The change also applies to anyone who has knowingly left a state to avoid testifying in a criminal case.
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“The department determined that the Brady (Handgun Prevention) Act does not authorize the denial of firearms transfers under the ‘fugitive from justice’ prohibitor based on the mere existence of an outstanding arrest warrant,” the Justice Department wrote.
“The current process of denying a NICS (National Instant Criminal Background Check System) transaction based on the existence of an active warrant alone is no longer valid.”
Five years after the Brady Act was adopted in 1993, the National Instant Criminal Background Check System was created to provide a database against which gun dealers and agencies that issue carry permits could check backgrounds. NICS is maintained by the Criminal Justice Information Services, a division of the FBI and pulls records from various sources.
The fugitive revision received little notice. The policy change came about with little publicity and other events coming out of the Trump Administration dominated the news.
Advocates of tighter gun control laws said the change is in keeping with other administration moves, conducted with little or no fanfare, to make it easier for people to purchase firearms.
Just as the new policy defining a fugitive took effect, President Donald Trump quietly signed into law a bill blocking the Social Security Administration from reporting to a national background check database the names of about 75,000 people who received government benefits because of mental illnesses so severe they cannot handle their own finances.
“It’s another thing this administration and this Congress wants to slip under the radar,” said Lindsay Nichols, federal policy director for the Law Center to Prevent Gun Violence.
The National Rifle Association did not respond to several requests from the AJC for comment on the DOJ fugitive memo, but the change is consistent with the NRA’s long-standing support for removing obstacles to gun ownership.
But the gun-rights group GeorgiaCarry.org said the revision was needed to eliminate any confusion.
“I’ve wondered sometimes ‘what constitutes a fugitive’ and it’s not clear,” said John Monroe, the attorney for GeorgiaCarry.org.
“This is more a matter of just defining who’s in and who’s out and not so much being lenient and being stricter. It’s one of those things where the law says these people cannot possess firearms and it’s not clear who these people are.”
Athens-Clarke County Probate Court Judge Susan Tate, chair of the Weapons Carry License Committee for the Council of Probate Court Judges of Georgia, said that, under the new mandate, if an outstanding warrant appears on a criminal background check, probate courts must now check with the agency that issued a warrant to confirm that the person crossed state lines to avoid criminal prosecution or testifying in a criminal matter. No longer an automatic disqualifier, that takes time and resources that are already short, she said.
“It just seems like in the last several years a lot of the changes that have happened have made it easier for people to get weapons, even if they are prohibited,” Tate said. “The names of too many people who are either ineligible for a license or prohibited from possessing a weapon have either been purged from the date base or never entered in first place.”
The law in Georgia, like in many states, tracks federal statutes when it comes to who cannot possess or buy firearms. Some of those prohibited include convicted felons, people indicted on felony charges, those convicted of misdemeanor domestic violence, people subject to restraining orders and those who have been involuntarily committed for mental health treatment. Georgia law also prohibits anyone convicted of misdemeanor marijuana possession or who had in-patient treatment for mental health issues or drug addiction from having a gun permit or buying a firearm for five years.
A Question of Safety
Although the revision has only been in effect for six months, there has already been a noticeable dip in the number of gun sales denied because the potential buyer was a “fugitive from justice.” According to NICS data, there was an 80 percent decline, compared to the same period in 2016.
“We’re very concerned this new policy means that officials will frequently be unable to block gun sales to people who are on the run from the law and trying to get armed,” said William Rosen, deputy legal director of advocacy group Everytown for Gun Safety. “It appears to be already happening.”
The FBI records show that 518,670 names have been removed from the nationwide background check database, meaning those individuals would not automatically be banned from obtaining a gun.
Nationwide, there were 1,581 gun sales or carry permits sought by fugitives that were declined between March and August in 2016; 18 percent of all denials. This year, there were 321 denials based on entries in the “fugitive from justice” category in NICS, or 4 percent of all denials nationwide.
The Justice Department memo noted that some states — Maine, Massachusetts, California, Oregon and Washington — have laws that prohibits selling a gun or granting a carry permit to those with warrants pending against them even if they have not left the state. Those states will have to provide documentation before names of individuals would be put in the NICS data base.
Since April 14, 675 entries in those states that now meet the new definition have been added back to the "fugitive from justice" category on the NICS, according to the FBI.
“It’s still unclear what kind of evidence they need,” Nichols said. “It is shocking that … there is an open question of whether they are a criminal or not.”
The audit that prompted the Justice Department to settle the dispute noted that the ATF disagreed 61 percent of the time when the FBI denied a transaction based on an entry in the “fugitives from justice” category.
Tate said she doesn’t want to restrict anyone’s gun rights.
“I just hate that there are these loopholes,” she said.
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