MOBILE — 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.
Now, there are lots of comments on Uncle's site, and they are of varying opinions, bit I'll get to that in a minute. But I want to point out a couple of things right off the bat.
First, this "story" is at least 4 years old ...... his arrest was in 2004, and if we assume the most time elapsed, the winter mentioned would have been in 2005, plus 3 days to look for disposition of his case, into 2006 (if this happened at the end of 2005). So at least 4 years old, maybe more.
Second, unless you're an AL attorney, we can't say for sure what the laws in AL were 4 or more years ago. I have seen that there were a couple of court cases that ruled that simple possession of marijuana is not a violent crime, so it's possible that Mr Davis' arrest, though a misdemeanor, was considered a violent offense, which would have knocked him out of eligibility to own a firearm. Current AL law says that the punishment for conviction of a misdemeanor marijuana charge is a maximum of one year in jail, and a $2000 fine.
So, if we view this situation under current AL law, Davis was arrested for misdemeanor marijuana possession (?). This could have netted him a jail term of no more than one year, which under question 12c on the 4473, would have allowed him to purchase a firearm. And if he had seen the error of his ways (I know, don't laugh), he could legitimately answer 'no' to question 12e.
But given the age of the story, the points are moot, since we, under normal circumstances, don't know what the laws were when all this happened.
But to Uncle's comments. They range from 'Davis needs to be put under the jail' to 'The FFL was just following the law', and most things in between.
Now, Tam says that she would not transfer a firearm with a 'Delayed' response, and that's her right. However, the FBI pretty clearly sets out what an FFL can legally do after the FBI-announced three business days are up. So in this case, the authorities did not come back with a denial, and the FFL was legally entitled to transfer the firearm under NICS rules. You may disagree with the wisdom of this practice, but there's no denying that it's allowed, and follows the letter of the law.
I don' think that anyone would disagree that the background check is flawed; it is, however, what the government has set up for FFL's to use, and they must accept the bad outcomes with the good. Of course, my solution would be to repeal all of the laws on the books, since they're mostly ineffective.
pm
PS: I note that all of the articles about this incident use the exact same story, no matter what source, so it's obvious that no one is doing any actual reporting on this. I also note that this story pops up on the eve of the selling dealer's trial for bypassing background checks.
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