The Trace

How California Took Action to Address a Risky Change to Gun Background Checks

A gun seller processes paperwork for a background check.

As officials across the country grapple with a rule change that makes it easier for some people with outstanding arrest warrants to legally buy guns, California passed a law that legislators say fixes the problem for their state.

The law comes in response to a change in the Department of Justice’s definition of who qualifies as a “fugitive from justice,” a category of people prohibited from buying a gun under federal law. For decades, the phrase applied to anyone with an open arrest warrant in the U.S. In February, the DOJ decreed that to be considered a fugitive for the purposes of gun buying, prospective purchasers must not only have an open warrant — they must have fled across state lines to avoid prosecution.

The rule change meant that an unknown number of people — likely tens of thousands nationwide — who had once been prohibited from buying guns would now be allowed to do so. As The Trace previously reported, the definition change increases the chances that people with outstanding arrest warrants for violent crimes will be able legally purchase a firearm in some states.

As estimated 2,500 of these previously prohibited gun purchasers live in California, according to Assemblyman Phil Ting, a San Francisco Democrat. Fearing that some of the people with outstanding warrants posed a threat to public safety, the legislature adopted a new measure this summer that essentially restores the older definition of fugitive for the purposes of gun buying, with a few small differences. First, it only applies to warrants for crimes that would prohibit a person from owning a gun in California, such as felonies, and misdemeanors involving domestic violence. Second, background checkers must prove that the person is aware of the warrant. For example they might show that the person was served with legal papers, or told about the charge by a judge in court.

“We wanted to take quick action to close that loophole,” said Ting, who sponsored the bill. “We didn’t want a gun to fall into the wrong hands.”

A spokesman for Assemblywoman Melissa Melendez, an opponent of the bill, did not respond to two requests seeking comment. But Melendez told the Sacramento Bee she didn’t feel a person should be prohibited from owning a gun before his case was heard in court.

“You are talking about stripping someone’s constitutional rights,” she told the paper. “Since when are you guilty before you’ve even been convicted in this state?”

Some experts say California may have found a relatively straightforward fix to a complicated problem that many states have been struggling with.

“This sounds like a reasonable and progressive measure to protect the public,” said Robert McCrie, a professor of security management at the John Jay College of Criminal Justice, adding that when it comes to gun laws, California is often a bellwether for other states that favor progressive gun laws.

When the DOJ changed the definition of fugitive, it ordered the FBI to purge about 500,000 records from its instant background check database. The vast majority of those records — about 480,000 — came from Massachusetts and Connecticut, states that have other safeguards in place that should prevent fugitives from buying guns regardless of whether they’ve crossed state lines.

Nationwide, the DOJ rule change complicated the work for background checkers, who now need to distinguish between prospective buyers who fit the old definition of fugitive and the new one.

Previously, all background checkers needed to do was find an open arrest warrant to know a person was prohibited. Now they must figure out whether fugitives have crossed state lines and prove that the person did it for the purpose of evading the justice system — often an impossible task. Many states are now awaiting guidance from the DOJ on what proof they need to show someone still qualifies as a fugitive.

Even when background checkers are able to determine that someone meets the new definition of fugitive, it often takes more than 72 hours — the period of time they are allotted to investigate a case before licensed gun dealers are legally allowed to release a gun.

Experts say California is the only state they are aware of that has sought to close the fugitive gun purchase loophole since the federal definition was changed. But it is not the only state with a local law governing fugitives buying guns. The Trace found at least 17 states with laws on the books, though it’s unclear how many of those laws are more restrictive than the federal rule.