A glaring loophole for fugitives

Published 12:11 pm Friday, December 1, 2017

by John Micek

When gun-control and gun-rights advocates clash after the latest mass shooting, you can usually count on two rhetorical chips being thrown onto the table:

“What new law would have stopped the latest massacre?” gun-rights advocates will ask.

That’ll inevitably be followed up with the assertion that if we put limits on gun ownership, then only the bad guys will have guns.

But thanks to a law enforcement turf war, we know the latter is probably untrue.

That’s because, back in February, 70,000 people were purged from an FBI database over a disagreement over the definition of “fugitive from justice,” leaving them legally able to purchase firearms.

As The Washington Post reported last week, people wanted by law enforcement were removed from the National Instant Criminal Background Check System when the FBI “changed its legal interpretation of ‘fugitive from justice’ to say it only [pertained] to people who crossed state lines.”

The background checks system, which is run by the FBI, made headlines when it was revealed that the Air Force followed to fail policies that would have added Texas church shooter Devin P. Kelley to the system.

The Charleston church shooter, Dylann Roof, was wrongly able to legally purchase the weapon in his murderous rampage after his name was not added to the database because of an arrest for drug possession. The mistake in the Roof case has been referred to as “The Charleston Loophole.”

Gun owners, spurred by on the National Rifle Association, have opposed efforts to expand background checks, seriously arguing they “don’t necessarily stop criminals from getting firearms.”

Taking a break from forgetting things about Russia and trampling on the rights of America’s LGBTQ citizens, U.S. Attorney General Jeff Sessions at least had the presence of mind last week to send a letter to the FBI and the Bureau of Alcohol, Tobacco and Firearms calling on the two agencies to fix the system.

The NICS system is “critical for us to be able to keep guns out of the hands of those . . . prohibited from owning them,” Sessions said. He also reportedly ordered the two agencies to report back to him on measures ensuring that “people who are prohibited from purchasing firearms are prevented from doing so.”

The problem is that Sessions’ own Justice Department is part of the problem here.

Last year, before President Donald Trump took office, The Post reported the DoJ’s Office of Legal Counsel sided with the ATF (which had narrow definition of fugitive) against the FBI (which had historically had a broader one), agreeing that gun purchases could only be denied to fugitives who crossed state lines.

Then, after Trump took office, the DoJ further narrowed the definition, confining it those who had crossed “state lines to avoid prosecution for a crime or to avoid giving testimony in a criminal proceeding.”

And faster than you could say “shall not be infringed,” what had once been a list of 500,000 fugitives in the database had been trimmed to ridiculously small 788.

Robyn Thomas, executive director of the Giffords Law Center to Prevent Gun Violence, called on the FBI and ATF to “correct this self-inflicted loophole,” and also called on the government to recover the weapons that had been illegally purchased by people purged from the database.

That’s a tall order, since the folks with the guns are, well, fugitives, and are presumably pretty good at evading contact with law enforcement. One also imagines that taking the weapons back might not end well for at least one side of that discussion.

David Chipman, a former ATF official who now advises the Giffords group, says Congress should pass a law cleaning up the definition of fugitive so that the current legal logjam won’t repeat itself in the future.

“I would imagine 99 percent of Americans don’t want people who have a warrant out on them to be able to buy a gun,” Chipman told The Post. “I can’t believe there is a constituency for wanted people. Wanted people are particularly dangerous. They’ve already proven that they’ll break the law.”

With Congress unwilling to take even the most minor of steps to expand background checks or limit the sale of devices that enable mass slaughter, those on both sides of the debate should be able to agree that this “fugitive loophole” should be closed as soon as possible.

JOHN L. MICEK, an award-winning political journalist, is the Opinion Editor and Political Columnist for PennLive/The Patriot-News in Harrisburg, Pa. Readers may follow him on Twitter @ByJohnLMicek and email him at jmicek@pennlive.com.