Judge greenlights claims against FBI in Charleston church shooting case
April 20, 2017 - Diane M. Zhang
Judge Richard Gergel of the District of South Carolina has rejected the federal government’s motion to dismiss negligence lawsuits brought by survivors and families of victims of the 2015 Charleston, S.C., church massacre. (Sanders v. United States, No. 2:16-2356-RMG (D.S.C. Mar. 23, 2017).) They allege that the FBI negligently administered its National Instant Criminal Background Check System (NICS), allowing Dylann Roof to purchase the gun that he later used to kill nine black parishioners of the Emanuel African Methodist Episcopal Church in a race-motivated hate crime.
On Feb. 28, 2015, a few months before the shooting, a City of Columbia Police Department (Columbia PD) officer found Roof in possession of a bottle of Suboxone—a Schedule III controlled substance—without a prescription. Columbia PD then arrested Roof, charged him with possession, and created an incident report, noting in it that Roof admitted to the crime. Six weeks later, Roof attempted to purchase a Glock handgun from Shooter’s Choice, a federally licensed firearms dealer in West Columbia, S.C.
Shooter’s Choice initiated a background check through NICS, a computerized system created by the Brady Handgun Violence Prevention Act of 1993 (Brady Act) and administered by the FBI. Because South Carolina does not serve as an NICS “point of contact,” federally licensed firearms dealers in the state must initiate background checks by contacting the NICS Operations Center so a researcher may then conduct the requisite check.
After searching the relevant databases, NICS provides the firearms dealer with one of three responses: “Proceed,” if no disqualifying information was found; “Delayed,” if the NICS search found a record that requires more research; and “Denied,” if records show that selling a gun to the intended purchaser would violate federal law. When a “Delayed” status is issued, the dealer cannot sell the gun to the prospective buyer until receiving a follow-up “Proceed” response from the NICS or the expiration of three business days, whichever occurs first.
The criminal background check into Roof created several areas of confusion. First, Roof’s possession charge was erroneously listed in the NICS as a felony drug arrest. Because he had not been convicted, which would have automatically blocked purchase, the examiner issued a "Delayed" response and attempted to find more information. She noted Roof was listed as having been arrested by the Lexington County Sheriff’s office—not Columbia PD—so she contacted Lexington County, which told her to check with Columbia PD. She instead contacted the City of West Columbia Police Department, a different jurisdiction that had no record of Roof’s arrest.
The FBI did not take further action and did not issue a follow-up “Denied” response to Shooter’s Choice. Had the examiner found Columbia PD’s report, Roof’s admission to illegal drug possession—noted by the arresting officer in the report—would have been enough to block the sale. However, three days after Shooter’s Choice initiated the background check, Roof was allowed to purchase his Glock. Two months later, he used it in the attack, which left nine dead and three others injured. Roof subsequently pleaded guilty and was sentenced to nine life sentences on Apr. 10, 2017.
Survivors of the attack and family members of those killed sued the FBI, alleging that the failure to issue a “Denied” status and prevent Roof from purchasing the murder weapon was a violation of nondiscretionary duties under the Brady Act, and that the violation was actionable as negligence under the Federal Tort Claims Act (FTCA). The government moved to dismiss, arguing that the FTCA barred the plaintiffs’ claims under the discretionary-function and misrepresentation exceptions, and that the plaintiffs’ claims were not actionable under South Carolina law.
The FTCA’s waiver of sovereign immunity has a few exceptions; one is the discretionary-function exception, which bars any claim that is based on a federal agency’s exercise or performance of a discretionary function or duty. The U.S. Supreme Court, in United States v. Gaubert (499 U.S. 314 (1991)), articulated a two-part test for determining whether a claim falls within this exception. First, the court should look to whether a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. Second, if the conduct involves judgment, then the court should look to whether that judgment is of the kind that the discretionary-function exception was designed to protect.
The FBI argued that there was a prescribed course of action here: issuing a “Delayed” response. A “Denied” response would have been inappropriate in Roof’s case, the government argued, because no matching record was found that would have demonstrated that selling a firearm to Roof would have violated state or federal law. Roof’s sheet indicated only that he had been arrested on a felony drug charge, which was not enough to deny him a handgun—definitive information that demonstrated that his receipt of a firearm would violate federal or state law was required. Because the employee followed the regulation and issued a “Delayed” response, the government argued, and because this type of judgment was the type that the exception was designed to protect, the plaintiffs’ claims were barred.
The court disagreed, ruling that the issue was a question of fact to be decided by the jury. Although the government argued that issuing a “Delayed” response was the only one permitted under the circumstances, the court pointed to the fact that while the plaintiffs agreed that federal regulations mandated the examiner’s response, they believed that the correct response was “Denied.” Thus, the court said, it was a question for the jury.
The government also relied on the FTCA’s misrepresentation exception, under which the statute’s waiver of immunity will not apply to any claim arising out of a misrepresentation, whether negligent or intentional—this includes cases alleging damages due to the government’s breach of its duty to use due care in obtaining and communicating information. Here, the FBI argued, the plaintiffs alleged that the government failed to communicate a denial to Shooter’s Choice.
The court found the defendant’s argument unconvincing. “The gravamen of the complaint is the Government’s failure to act to prevent a violation of federal law, as required by allegedly mandatory procedures,” the court said.
Last, the government argued that the claims were not actionable under state law. Plaintiffs could sue the government under the FTCA if the alleged breach of duty was tortious under state law, or if the plaintiffs demonstrate that the government breached a duty imposed by federal law similar or analogous to one imposed by state law, the government alleged. South Carolina does not impose a duty on private citizens to investigate purchasers of firearms—and it does not impose negligence liability for inadequate background checks. And no common law or civil obligation to conduct background checks prior to selling a gun in the state exists.
But because South Carolina law holds people liable when they negligently create a foreseeable risk of harm from a third party, the plaintiffs argued, negligently failing to prevent Roof from purchasing his Glock was a substantial factor in the harm the victims and survivors of Roof’s attack suffered. The court stated that this negligence per se argument was “sufficiently . . . plausible to survive a motion to dismiss.” The case will proceed to jurisdictional discovery.
Attorney Marc Bern of New York City, who handled the civil litigation against the movie theater in which the 2012 Aurora, Colo., mass shooting took place, emphasized the novelty of this lawsuit.
“From my experience,” he said, “I’m not aware of any other litigation like this—and it’s a great theory.” But Bern warned about upcoming hurdles. “They’ll have to face federal preemption and immunity. There are all kinds of additional problems. But if you take away those defenses that the government will throw up, it appears to be a strong case.”