Dylann Roof Case Reveals That Background Checks Don’t Always Work

New information in the Dylann Roof case shows that the background check system used for gun purchases is still prone to human error.

Doug Mataconis · · 51 comments

Due to what seems to be a combination of human error and the fact that the nation’s criminal records systems are not as adequately connected as one might thing, Dylann Roof was allowed to purchase the gun he used to kill nine people in a Charleston, South Carolina church even though the required background check had not been completed:

WASHINGTON — The man accused of killing nine people in a historically black church in South Carolina last month was able to buy the gun used in the attack because of a breakdown in the federal gun background check system, the F.B.I. said Friday. Despite having previously admitted to drug possession, the man, Dylann Roof, 21, was allowed to buy the .45-caliber handgun because of mistakes by F.B.I. agents, a failure by local prosecutors to respond to a bureau request for more information about his case, and a weakness in federal gun laws. “We are all sick this happened,” said James B. Comey, the F.B.I. director. “We wish we could turn back time. From this vantage point, everything seems obvious.” The authorities’ inability to prevent Mr. Roof from obtaining the weapon highlighted the continuing problems in the background check system, which was intended to keep guns out of the hands of criminals, drug users and mentally ill people. Despite new procedures and billions of dollars that have been spent on computer upgrades in the years after the Sept. 11, 2001, terrorist attacks, the federal authorities still do not have a seamless way of examining Americans’ criminal histories that eliminates human error. The disclosure also introduced another element of politics into the aftermath of the massacre, which has already led lawmakers in South Carolina to remove the Confederate battle flag that flew outside its State House. Republicans and Democrats quickly seized on the background check failure as the latest evidence to back up their views on gun laws. Mr. Roof exploited the three-day waiting time that has allowed thousands of prohibited buyers to legally purchase firearms over the past decade — and some of those weapons were ultimately used in crimes, according to court records and government documents.

Background checks for gun purchases have been a fact of life in the United States for more than twenty years now ever since the passage of the Brady Handgun Violence Prevention Act in 1993. The Brady Act was the first law to impose a mandatory federal criminal background check for all gun purchases handled by federally licensed gun dealers. Initially, the law also imposed a five-day waiting period on all purchase but that was gradually phased out when the National Instant Criminal Background Check System was brought online starting in the late 90s. Contrary to the way it’s often represented in the media, though, the NICS is not necessarily an “instant” background check system. For one thing, if the system or some part of it is down then the background check cannot be performed. In theory, this means that someone seeking to purchase a gun on a given day would not be able to bring the weapon home, however there are exceptions to the law that allow the dealer to proceed with the transaction anyway based on their own discretion. Additionally, even when the system is working, it obviously depends upon the criminal and other records being up-to-date and accurate. When they are not, someone who is ineligible may be able to purchase a weapon or someone who is eligible may be denied the ability to do so. In Roof’s case, the problem came due to the fact that there the initial record indicated there some pending charges against him that could have barred him from purchased, charges that Roof himself apparently also disclosed on the form he was required to fill out, but because the information was incomplete, a follow-up by a human agent was required, and this where the mistake happened:

According to Mr. Comey, Mr. Roof first tried to buy the gun on April 11 from a dealer in West Columbia, S.C. The F.B.I., which operates the National Instant Criminal Background Check System, received a call from the dealer, seeking approval to sell Mr. Roof the weapon. The F.B.I. did not give the dealer the authority to proceed with the purchase because the bureau said it needed to do more investigating of Mr. Roof’s criminal history, which showed he had recently been arrested. Under federal law, the F.B.I. has three business days to determine whether there is sufficient evidence to deny a purchase. If the bureau cannot come up with an answer, the purchaser can return to the dealer on the fourth day and buy the gun. Many major gun retailers, like Walmart, will not sell a weapon if they do not have an answer from the F.B.I., because of the fear of public criticism if the gun is used in a crime. The marginal sale of one gun means little to the bottom line of a large dealer, which is not the case for smaller stores like the one that sold Mr. Roof his gun. Two days after Mr. Roof tried to buy the weapon, an examiner at the F.B.I.’s national background check center in Clarksburg, W.Va., began investigating his criminal history. The examiner found that Mr. Roof had been arrested this year on a felony drug charge, but not convicted. The charge alone would not have prevented him from buying the gun under federal law. But evidence that Mr. Roof had been convicted of a felony or was a drug addict would have resulted in a denial, so she continued to investigate his background. Because Mr. Roof had been arrested in a small part of Columbia that is in Lexington County and not in Richland County, where most of the city is, the examiner was confused about which police department to call. She ultimately did not find the right department and failed to obtain the police report. Had the examiner gained access to the police report, she would have seen that Mr. Roof had admitted to having been in possession of a controlled substance and she would have issued a denial. The examiner, however, did send a request to the Lexington County prosecutor’s office, which had charged him, inquiring about the case. The prosecutor’s office, however, did not respond. Around that time the three-day waiting period expired, and Mr. Roof returned to the store and purchased the gun. Mr. Comey said that he had spoken with the examiner, who he said had been working in that position for several years, adding that she was “heartbroken.”

The facts as the F.B.I. has presented suggest that the Roof transaction reveals two points of failure, neither one of which seems to be easily addressable by changing the laws themselves. First of course, there’s the fact that the gun dealer that Roof had purchased the weapon from allowed the transaction to go forward even though they had not heard back from the NICS system regarding the background check. As noted above, this is perfectly legal because existing Federal Law provides that if the dealer has not heard back from the system after the expiration of three business days then the dealer is permitted to allow the sale to forward at their discretion. Some major retailers have made the business decision to still wait until they have heard back from the system before selling the weapon, but my understanding is that most gun dealers do not have this policy and there’s never really been a case before this where that has been an issue. I suppose one could change the law to mandate that the sale cannot go forward at all until the system has reported back, but that seems somewhat unreasonable. Three business days is a pretty long period of time in a world where these records are now largely available electronically. To put consumers at the mercy of a government bureaucracy that, as we have seen here, is not exactly prompt or competent, seems unreasonable.

The second failure is probably the one that is more concerning, because it raises the possibility that people who should not be allowed to purchase weapons under Federal Law will be able to do so. In this case, the failure came because a human agent failed to contact the correct jurisdiction to ask about the charge that Roof had pending against him. Had they done so, he potentially could have been denied under the background check because Roof had admitted that he was in possession of drugs, a fact that would have disqualified him from being able to purchase a weapons. It’s hard to see what new law could have prevented this mistake from happening. Indeed, the problem that it demonstrates is the fact that the background check system is still quite often dependent upon human actors for its reliability. Perhaps that suggests that the Federal Government needs to invest more money in continuing to modernize criminal records systems around the country, but there’s no amount of money that can make up for the fact that someone sitting at a desk in a Federal Government office in West Virginia made a mistake that should have been easily caught and wasn’t.

Given how highly political the debate about guns in this country, it’s inevitable that this case will be cited by both sides in support of their arguments. Gun control advocates will argue, for example, that this case shows why we need a stricter background check laws that would prevent something like this from happening in the future. Gun right supporters, on the other hand, will argue that this case demonstrates that more background check laws aren’t necessarily the answer because, as I pointed out above, you can’t legislate away human error. To some degree, I think that both sides might have legitimate points. If the system we have now isn’t working the way its supposed to because of incomplete technology or human error, then perhaps we need to talk about spending money to improve the quality of the system we have so that things like this at least become less likely. At the same time, though, the failures here should cause people who think that all we need to do is make the existing background check system stronger to rethink their position because it demonstrates that no system is going to be completely perfect. Given that, passing new laws isn’t necessarily the answer. Ideally, there would be some rational discussion about what we can learn from this failure going forward, but given how the gun debate usually goes in this country I wouldn’t count on that happening.