Even as some Democratic lawmakers and state officials – including Attorney General Bob Ferguson – renew a push to ban the purchase of semiautomatic rifles, the annual background checks approved by voters have been left to languish.
Officials cite a host of barriers to the new law, like the cost of administering it and – more significantly – logistical barriers like the absence of a registry or database that tracks firearms owners. Officials note they wouldn’t be able to access a key background-check database maintained by the Federal Bureau of Investigation that is used whenever individuals purchase a firearm.
In July 2020, the Department of Licensing – which was tasked with developing a “cost-effective and efficient process” to conduct annual checks – concluded that such a program was not feasible under the current system. In an email last week, the office of Gov. Jay Inslee said the Legislature would likely need to weigh in on annual checks on gun owners.
“There is a rationale for being able to determine if a person is disqualified from possessing a firearm after purchase. It’s important,” wrote Inslee spokesperson Mike Faulk in an email. “The issue is that there is not a way to legally conduct the check under our current system.”
“The governor would welcome the opportunity to work with the Legislature to identify a viable path forward to conduct these checks,” Faulk added.
Those conclusions that a yearly background check system may not be possible have been made so quietly that key advocates of firearms regulations weren’t aware the law was anything more than delayed. Asked whether he expected annual checks to move forward after Washington’s new centralized background-check system comes online in 2024, Rep. Drew Hansen said he did.
“That gets fixed, I’m nearly positive, with the statewide centralized system,” said Hansen, D-Bainbridge Island and author of the bill creating that new system.
Paul Kramer, the citizen sponsor of I-1639, said he was “surprised and somewhat disappointed” that annual checks have not been put in place. He wasn’t aware of the failure to implement them, Kramer said, until Crosscut reached out.
“I don’t think that’s an unreasonable thing for us, collectively, to be doing,” said Kramer, whose son was injured in the 2016 shooting at a Mukilteo house party that helped spur I-1639. “I think it moves us toward a safer society, a safer public in general.”
‘Millions of records’
Americans buy a lot of guns, and Washington is no exception. Between January and August, nearly 507,000 background checks were conducted in the state, according to FBI data.
Washington’s current background-check system is fairly unique among the states. The checks are handled by the federal government or by more than 200 local law enforcement jurisdictions, depending on what weapon you want to buy.
It’s a system that can create confusion for firearms dealers and tax the resources of tiny police departments and county sheriffs. State reports have also described this decentralized system as “fragmented,” with some gun buyers getting less rigorous checks than others, depending on the resources, training and access to databases in various jurisdictions conducting the checks.
When someone goes to buy a shotgun or non-semiautomatic rifle – like one operated with a bolt or lever – a licensed firearms dealer contacts the FBI’s National Instant Criminal Background Checks System database, aka NICS, to conduct a check. Often the results come through within minutes.
People buying pistols go through a more rigorous process, which generally includes a 10-day waiting period before they can receive the gun. During that period, local law enforcement in the places where potential buyers live are tasked with contacting the FBI database. They then conduct additional checks through Washington state databases, like the state Health Care Authority and the Washington State Patrol, and potentially local court records.
Part of I-1639 moved background checks of semiautomatic rifles to the tighter process conducted for pistols, including a waiting period of 10 business days to receive the firearm. That part of the ballot measure took effect July 1, 2019, generating a slew of additional background checks for local law enforcement to conduct.
That was one big reason lawmakers in 2020 passed Hansen’s bill to redesign Washington’s background checks by consolidating them within a new unit at the Washington State Patrol. That unit will include dozens of staffers to conduct the checks by contacting the FBI database and state records and will have a portal for firearms dealers to contact the State Patrol with the background-check requests.
“It’s going to be the single biggest change to strengthen background checks since the state passed background checks in the first place,” said Hansen.
But it still won’t include the annual re-checks laid out in I-1639 for owners of pistols and semiautomatic rifles.
The initiative stated that, “Within twelve months of the effective date of this section, the department of licensing shall … develop a cost-effective and efficient process” to verify that owners of pistols and semiautomatic rifles are still legally allowed to possess them.
If someone is flagged during such a check, according to the initiative, then the state is tasked with notifying local law enforcement wherever the person lives. From there, law enforcement would “take steps to ensure such persons are not illegally in possession of firearms.” This would apply, for example, to someone who bought a firearm before they had a domestic violence or civil protection order.
“The recheck will flag the fact that individuals, even if they haven’t tried to buy a firearm,” might be ineligible to possess it, said Renée Hopkins, CEO of the Alliance for Gun Responsibility, the advocacy organization that spearheaded the I-1639 campaign.
That could be especially important to prevent harm in situations where domestic violence is involved, said Hopkins.
In July 2020 – the date by which the new checks should have been developed – the state Department of Licensing instead concluded that there was no “cost effective and efficient” way to handle annual rechecks. It recommended reevaluating when Washington’s new, centralized gun-purchase background system comes online in 2024, according to a copy of its recommendations to the Legislature.
One big logistical reason is because background checks are centered around the purchase of a gun using the applications filled out when buying a firearm. The Department of Licensing keeps some of that information from those applications on file, but neither Washington state nor the federal government keeps actual records on who owns guns.
“If an individual moves out of state, if they pass away, if they no longer have a firearm, we don’t know that, right?” said Beau Perschbacher, legislative and policy director for the department. “And so thinking about a re-check, you’re potentially doing a re-check on someone that doesn’t live here or that’s not alive.”
“You’re talking about millions of records that local law enforcement would have to search, and the cost of that was a major consideration,” he added.
In his email, Faulk, the Inslee spokesperson, also pointed to the challenges of conducting checks only through state databases – and without the FBI’s national criminal database.
“The biggest concern is that if we don’t have a complete check, we could be allowing a person to continue possessing a firearm when they are not legally allowed to do so because of a disqualifier that was not in our state system,” he wrote.
The FBI’s national press office didn’t respond to requests for comment.
The Alliance for Gun Responsibility expects the state to follow the statute and find a way to implement the annual checks, Hopkins wrote in an email.
“It is not acceptable to wait until after the rollout to evaluate the re-check program,” she said. “It must be part of the system upon rollout.”
What’s next
In July 2021, the advisory board overseeing the new background-check system agreed with the recommendation to re-evaluate annual checks for pistol and semiautomatic rifle owners after that system goes live in 2024, according to meeting minutes obtained from the Washington State Patrol.
One possibility to make the annual checks logistically feasible was recommended in a different state report on firearms that was released in 2019.
That Office of Financial Management report floated the idea of creating an “endorsement” system that would require people to get background checks before they purchased a weapon, similar to a process currently conducted in Washington for those who apply for concealed pistol licenses. The state maintains a database of people with concealed pistol licenses, and can check that database to revoke licenses if prohibiting records pop up, according to the report.
“If this system is developed to the point that all relevant state data reaches it in a timely manner, any individual with a clear firearm endorsement can be assumed to pass any state-level check,” according to the report. “Conversely, any new information that would cause a person to fail a state check would preempt the check entirely by causing a hold to be placed on their gun endorsement.”
It remains to be seen whether there’s any political appetite to implement the law. In the wake of mass shootings this year in Uvalde, Texas, and Buffalo, New York, talk has bubbled up again about passing a law to ban the sale of semi-automatic rifles in Washington. That’s a progressive priority previously supported by Inslee and Attorney General Bob Ferguson that has never advanced in the Legislature.
Faulk, the Inslee spokesperson, said it would be up to state lawmakers to decide whether they wanted to proceed with annual checks that didn’t depend on the FBI national criminal database.
“The Legislature could decide that a more limited search is sufficient, so that there could be a check of only state records,” he wrote, adding: “This is very speculative though, because we don’t have an indication from the Legislature that they would find this partial check satisfactory.”
A spokesperson for Ferguson, who took the unusual step of endorsing I-1639 during the campaign, said the office couldn’t provide much comment.
In an email, spokesperson Brionna Aho pointed out that the annual re-checks law wasn’t a proposal previously supported by Ferguson, unlike other parts of I-1639, such as the higher purchase age, enhanced background checks and mandatory waiting period for semiautomatic rifles.
Aho referred questions – like whether Ferguson believed the annual rechecks law should be repealed, or if additional efforts should be made to implement it – to the Department of Licensing, the State Patrol and the Legislature.
“As you know, we provide legal counsel to those agencies, which limits what we can share regarding their work if they have sought legal counsel on these matters,” Aho wrote. Another spokesperson for Ferguson, citing attorney-client privilege, wouldn’t confirm whether Ferguson’s office had been consulted.
The Washington Association of Sheriffs & Police Chiefs agreed with the recommendation to hold off on annual rechecks for now, according to a statement from executive director Steve Strachan.
“Once the state’s single point background check system is operational, one of the challenges may no longer exist, though it would be incumbent on [the Washington State Patrol] to determine whether such a process would be conceivable,” Strachan, who is on the background-checks advisory board, said in the statement.
If the Inslee administration wanted to resume conversations on the annual recheck law, Strachan said his organization “would look forward to being an active and productive partner in those discussions.”
