Appeals Court Says Government Can Be Sued Over 2015 Church Massacre

September 1, 2019 by Dan McCue

WASHINGTON — The 4th U.S. Circuit Court of Appeals reinstated a lawsuit over the flawed background check that allowed an avowed white supremacist to buy the gun he used to kill nine people in a racist attack on a South Carolina church.

Last year, U.S. District Judge Richard Gergel, presiding in Charleston, S.C., dismissed the case, holding the Brady Handgun Violence Prevention Act grants the government immunity in almost all cases when it fails to prevent the wrongful sale of a firearm.

On Friday, however, a three-judge, 4th Circuit panel said Gergel was mistaken. According to the panel, which sent the case back to the lower court for further consideration, the Brady Act does not shield the federal government from being sued.

Rather, it protects only the actions of individual employees, the panel said. The ruling is the first of its kind on the appellate level.

Dylann Roof was convicted and sentenced to death for carrying out the massacre during at Bible study class at Charleston’s historic Emanuel AME Church.

It was quickly revealed that Roof should never have been able to purchase the .45-caliber Glock pistol he used in the murder due to his arrest, just six weeks earlier, on a felony drug charge.

Roof had gone to a Columbia, S.C. gun store not far from his home to purchase the gun and underwent the mandatory federal background check. When the gun store received no response of denial or approval after three days, an employee exercised his legal right to sell Roof the firearm.

That option after the required three-day wait has become known as the “Charleston loophole.”

In February, House Majority Whip James E. Clyburn, D-S.C., Representative Peter King, R-N.Y., and Representative Joe Cunningham, D-S.C., introduced the Enhanced Background Checks Act of 2019, bipartisan legislation that would permanently close the loophole.

It passed the House days later, but Senate Majority Leader Mitch McConnell prevented it from being taken up in the Senate.

“The real tragedy of the Emanuel Massacre is that it could have been prevented,” Clyburn said at the time. “We need to ensure that background checks are completed before weapons are sold. This legislation seeks to provide, with as much certainty as possible, that guns are not sold to those who ought not have them.”  

Cunningham said the legislation would give “law enforcement the time necessary for them to do their job.”

“The tragedy at Mother Emanuel should never have happened, and hopefully by promoting common sense steps like closing the Charleston loophole we can prevent it from ever happening again,” he said.

The lawsuit revived on Friday centers on the actions of the federal background check examiner who failed to discover what happened after Roof’s arrest on the felony drug charge.

The existence of a charge alone is enough for the FBI to deny a firearm purchase. But by law anyone who admits to or is convicted of using or being addicted to a controlled substance is automatically barred from possessing a firearm.

In reviewing the case, the 4th Circuit panel focused on the examiner’s failure to contact the arresting agency to find out what happened in the case. Because the examiner allegedly failed to follow a “clear directive” that he do so, “the Government can claim no immunity in these circumstances,” the panel said.

The court documents also show there was much that wasn’t the examiner’s fault. He did try to get copies of Roof’s arrest report, but it had been forwarded to the FBI with multiple errors, complicating the search.

The search was prolonged further by the FBI’s prohibition on examiners using Google to search for the contact information of the local agency that had the document.

All of these issues were revealed within a month of the murders by then-FBI Director James Comey. He also acknowledged Roof’s gun application would have been denied if the examiner had seen the police report.

Friday’s ruling was written by Chief U.S. Circuit Judge Roger Gregory, and he was joined in the opinion by U.S. Circuit Judge Albert Diaz.

U.S. Circuit Judge G. Steven Agee wrote a separate opinion concurring in part and dissenting in part.

Where Agee disagreed with the majority opinion was its view of examiner’s actions. 

Because court records revealed that Roof had no convictions — he admitted to using controlled substances and was never tried on the drug charge — and the contacted agencies provided no verified information, it was “within the Examiner’s discretion” to move on to other requests, Agee wrote.

“Any attempts to improve the efficiency and efficacy of firearms background checks should be focused on improving examiners’ access to accurate information,” Agee said. “The majority’s approach instead hampers examiners by requiring them to follow up on every potential lead and expend further precious resources.”

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