Background Check Issues
Demario Terrell Davis’ 2004 arrest on a misdemeanor marijuana charge popped up on a federally required background check when he sought to buy a military-style rifle the following winter.
Criminal history records did not reveal the outcome of that arrest, however. Government checkers had three business days to find the answer, according to the law, or the sale could go through regardless.
The government lost that race against the clock, and Davis had himself a new .223-caliber Stag 15. He later went to prison for having the weapon.
So, the guy goes to buy a gun and gets put on hold. The police can’t figure out the outcome and the sale goes through. ATF later arrests him as a prohibited person.
If we’re going to have background checks, they should work right instead of being the silly show that they are. And a failure of police follow-through ought not land one in prison.
March 15th, 2010 at 10:33 am
Well if he was a prohibited person, he shouldn’t have tried to buy the gun in the first place.
March 15th, 2010 at 10:34 am
He may not have known he was. That happens quite a bit.
March 15th, 2010 at 10:48 am
From the point of view of the FFL, unless I get a “Yes”, the answer is “No”.
Under the system as it is, turning the gun loose after the three-day period without an explicit “Yes” from NICS or its state equivalent leaves the dealer wide open should the person ever do anything shady with that gun.
“You mean to tell me that the government was concerned enough about this man to place the sale on hold, but the clock ran out before they could find the disposition of his case, and you went ahead and sold it to him anyway? And then he left it out where one of his drug-using friends took it and used it to murder the clerk at the 7-11! If not even the authorities were sure his background merited possession of a firearm, ladies and gentlemen of the jury, what made the sales clerk at Jimmy’s Bait’n’Bullets feel that he was a better judge of character than the Tennessee Bureau of Investigation?“
March 15th, 2010 at 10:55 am
Notwithstanding the idiotic thing of having a misdemeanor pot bust making you a prohibited person.
March 15th, 2010 at 11:57 am
From the story, i have no clue if he person was convicted or not. Seems unfair that a charge, regardless of conviction, could cause somebody to lose an important civil right.
March 15th, 2010 at 12:43 pm
The article does not state why he was a prohibited person at all. So I’m afraid I can’t see the conclusion of the post making sense with this info.
March 15th, 2010 at 12:45 pm
So the buyer KNEW he had a felony conviction yet tried to buy the gun from a gunshop that had background checks?
That sounds like Gunkid of internet fame to be that stupid.
Actually, I think the ATF did the right thing. Stupid felons, and that’s most of them, do deserve to be in prison.
March 15th, 2010 at 12:45 pm
says he was arrested for a marijuana charge. Then that he was arrested for having the gun. The implication being he is a prohibited person.
March 15th, 2010 at 12:46 pm
paul, maybe. but the police let the sale go through.
March 15th, 2010 at 1:06 pm
Tam, I know a guy who get holds all the time because his brother is a murderer. Of coarse, the brother is in prison, and will be pretty much forever, so I have no idea why he keeps getting holds. They either get answered “Yes” or they time out. He’s had a CHL, so he passes the FBI background check.
Go figure.
March 15th, 2010 at 1:20 pm
Maybe I don’t know the law as well as I should, but my impression was that misdemeanors did not bar a person from purchasing a firearm. Can anyone enlighten?
March 15th, 2010 at 2:26 pm
Misdemeanors can make you a prohibited person if your state has misdemeanors with more than 1 year penalties (even if you didn’t get a year+ sentence, it’s the max penalty that determines the status). Ditto for misdemeanor domestic violence convictions, independent of the the length. In this case, it’s also not clear that they got him on possession or for lying on the form. There are situations where you can’t buy, but can keep your old stuff.
March 15th, 2010 at 2:30 pm
It’s a shame he didn’t pop any of the ATF guys.
March 15th, 2010 at 2:58 pm
“ATLien Says:
March 15th, 2010 at 2:30 pm
It’s a shame he didn’t pop any of the ATF guys.”
Hold on there! We shouldn’t be like the moron anti’s. Working for a corrupt .gov organization should put you in the political cross-hairs not the real ones. We don’t need that type of help to get our point across, there are dozens of morons looking for any reason to ding us and your not helping.
March 15th, 2010 at 3:01 pm
Seems to me, taking into account the original article and all the above comments, that the only “reasonable” gun laws are NONE!
March 15th, 2010 at 3:21 pm
I am confused, he got busted for a misdemeanor pot charge why does that make him a prohibited person? I was under the impression the only misdemeanor that disbarred you from buying or possessing a firearm was a domestic violence charge or conviction. If I remember right the 4473 asks about felony convictions, not hey were you in jail for more than a year? Maybe they decided he lied because in their opinion he was an addict but that doesn’t seem to leave any room for those who find god or a 12 step program and sobriety to ever buy a gun.
@ Tam what’s the point of having a law that reads …if after three days you may… if it doesn’t get followed? I understand i am a bit of an idealist (borderline anarchist) but still?
March 15th, 2010 at 3:25 pm
I have to wonder – was there a warrant, and was it unconstitutionally vague?
If the ATF has stopped by without a warrant and he had had kept quiet and refused to let them search, would they have claimed probable cause?
March 15th, 2010 at 3:47 pm
Firstly, I am not a lawyer, so I might have some of this wrong (eg. this is not legal advice).
I don’t know the laws elsewhere, but here in Florida, my understanding is you are a prohibited person if you are prohibited by the feds (felon etc.) or you have a Domestic Violence conviction, or a drug trafficing conviction, or a misdemeanor conviction that could result in jail time of over 2 years. I have also been of the impression that it is a crime for a prohibited person to knowingly attempt to buy a gun. So, even if the ffl didn’t sell him the gun, couldn’t he be in trouble for even trying to buy it?
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March 15th, 2010 at 6:21 pm
To expand on that, it’s my understanding (IANAL) that the feds define a felony as any crime punishable by more than 1 year in jail, and it’s the federal definition that controls who is a prohibited person. So if your state decides that simple possession of marijuana should be punishable by more than one year – even if it’s “a year and a day” – but that it should still be considered a misdemeanor, the feds don’t care. As far as they’re concerned it’s a felony, and anyone convicted under that law is a prohibited person.
March 15th, 2010 at 6:35 pm
ScottM,
I am, too.
However, when I’m standing behind the counter at the gun shop I’m also an employee with responsibilities to my employer and coworkers. Were I to decide to the questionable guy a gun without every “i” dotted and “t” crossed, it’s not just my principles I have to worry about, but the livelihood of every other employee and their families.
“Hey, Joe, sorry you can’t make the mortgage payment this month, but the guy swore to me that his pot conviction had been cleared up. No, I don’t know if we’ll get our license back. Apologize to your kids for me, too.“
March 15th, 2010 at 6:38 pm
Also, how can a guy with a drug conviction answer question 11e on the 4473 in the negative?
March 15th, 2010 at 8:09 pm
Of the FFLs I’ve worked for and know, not a one would transfer a firearm without a proceed. If that means holding the paperwork for ten days, they will (and have).
“Also, how can a guy with a drug conviction answer question 11e on the 4473 in the negative?”
I’m guessing it’s because the question asks in the present tense about use, not prior convictions. I know a few folks who answer no and justify it because they’re not currently smoking a spliff.
March 15th, 2010 at 8:40 pm
This is a clear case of having too many laws that cover a crime. As far as I can tell their are at least 6 laws covering this case. 6 laws to send a man to jail for a year. Yet no one is totally sure the law was broken. If you read the article they were saying that their are people with convictions but no arrest records and arrests with no conviction records. If the police are clueless to the situation how is some guy trying to by a gun supposed to know?
March 16th, 2010 at 12:07 am
Tam I get your point, I was more trying to highlight the idiocy of the law.
You also asked “Also, how can a guy with a drug conviction answer question 11e on the 4473 in the negative?”
Again maybe he realized he had a problem and started going to AA and hasn’t used in say 5 years or 10 or 20 or 30 is he still an unlawful user of or addicted to an illegal drug?
March 20th, 2010 at 2:30 am
He can’t own a gun because he smoked some pot? WTF? Someone needs to clear that law up.