Dylann Roof apparently had <i>not</i> been arrested for a felony a month before he went through a gun purchase background check

Dylann Roof was arrested and charged only with misdemeanor drug possession. The Lexington County (S.C.) criminal records site reports, under “Charges,” that Roof was charged with “0179-Drugs / Poss. of other controlled sub. in Sched. I to V – 1st offense.” Charge code 0179 refers to misdemeanors. S.C. Code § 44-53-370(d)(2) provides that possessing a Schedule III substance (here, suboxone) is a misdemeanor leading to at most six months in jail. The arrest report confirms that this is what Roof was arrested for.

It appears, however, that the South Carolina records at first incorrectly listed the charge as a felony, according to the Greenville News (Nathaniel Carey). “A spokeswoman with the State Law Enforcement Division said Roof’s criminal record incorrectly listed the pending charge as a felony due to a data entry error. The record has since been corrected to reflect it is a misdemeanor, she said.”

Had Roof indeed been charged with a felony, dealers would have been legally forbidden from knowingly selling him a gun simply because of that formal charge, even before he was convicted. That is because 18 U.S.C. § 922(d)(1) bars sales of guns to people who are known to be “under indictment for, or [have] been convicted in any court of,” a felony. (How felony is defined for purposes of federal gun law is complicated, but I’ll set that aside here.) Moreover, “indictment” has been read as covering not just indictments by grand juries, but also “informations” filed by prosecutors. Formal charges had indeed been filed against Roof by the time the gun purchase background check took place.

Though Roof wasn’t charged with a felony, the sale to him might still have been barred under 18 U.S.C. § 922(d)(3), which covers anyone who is an “unlawful user of or addicted to any controlled substance.” The relevant federal regulation defines that term this way:

A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.

The police officer’s arrest report states that Roof had admitted that he knowingly possessed Suboxone without a prescription. It’s possible that the police officer’s statement in the arrest report about what he said Roof told him would have sufficed to justify the FBI’s blocking the sale to Roof. (To be sure, this wouldn’t have necessarily stopped Roof from getting a gun, either on the black market or through a private transaction that is exempt from the background check requirement; but here I’m just discussing whether this particular dealer sale to Roof could have been blocked by the FBI.) This is not “a conviction” or “multiple arrests” or a “drug test,” to quote the examples given in the regulation; but perhaps the FBI examiner, had she come across the incident report, would have concluded that the reported admission of drug possession by Roof was enough to disqualify Roof as an “unlawful user of … [a] controlled substance.” (Recall that Roof wasn’t at that point being criminal prosecuted for trying to buy a gun while an unlawful user, which would require proof beyond a reasonable doubt; I suspect the FBI applies a lower standard of proof than the reasonable-doubt threshold in deciding whether to block a sale.) I’d love to hear what people with experience on how such decisions are made can say about that; certainly Director Comey thought this might well have happened.

Now let’s return to Comey’s statement:

Her initial check of Roof’s criminal history showed that he had been arrested in South Carolina March 1 on a felony drug charge. This charge alone is not enough to deny proceeding with the transaction. As a result, this charge required further inquiry of two potential reasons to deny the transaction. First, the person could have been convicted of a felony since the arrest. Second, the underlying facts of the arrest could show the person to be an unlawful drug user or addict.

A few thoughts (again, tentative, since my analysis might be mistaken):

• The first sentence may well be technically right: The South Carolina records error noted above may have led the examiner to believe that Roof had been arrested for a felony (even though the records were mistaken, since the charge was a misdemeanor). I don’t know when the records error was corrected, but Comey’s statement suggests that this wasn’t until after April 13, when the background check was conducted. I do think, though, that saying “showed that he had been arrested … on a felony drug charge” was potentially misleading here (since it can easily be read, and has been read by some, as meaning “showed something that is indeed true”). Rather, it appears that the examiner’s initial check led her to believe that he had been arrested on a felony drug charge.

• Another possibly confusing item: a felony drug charge, in the sense of an indictment or an information alleging a felony, would indeed be enough to deny proceeding with the transaction. An arrest leading to such a charge would not be enough, since what triggers the disqualifications is the filing of charges, not the arrest.

• When an examiner sees what appears to be an arrest on a felony drug charge, there are three potential reasons to deny the transaction. First, the person indeed could have been convicted of a felony since the arrest. But second (and something that very likely would happen after the arrest, and before the conviction), the person could have been indicted on a felony charge, which would itself disqualify him from buying a gun from a dealer. And third, he could be an unlawful drug user or addict.

So FBI Director Comey’s bottom line may well have been right, and the examiner could have found the arrest report and concluded that Roof was disqualified under the (d)(3) unlawful-drug-user prohibition. But readers of the statement (and of some news reports on the statement) might end up being confused about the facts — thinking Roof had been arrested for felony drug possession, whereas he had really been arrested for misdemeanor drug possession — and about the law (thinking that the federal felony-related gun sales ban applies only to people who have been convicted of felonies, whereas it also applies to people who are under indictment for felonies).

Finally, let me stress again: This is my tentative understanding, and please let me know if I’m mistaken (in which case I will of course correct the post).

Thanks to Jim Schaller for the pointer.

UPDATE: I originally wrote “Moreover, ‘indictment’ has been read as covering not just indictments by grand juries, but also ‘informations’ filed by police officers” instead of “… filed by prosecutors” — of course, criminal informations are filed by prosecutors, not police officers, but I somehow miswrote this; my apologies for the error, and thanks to commenter LouGots for alerting me to it. I have corrected it above.