Judge Dismisses Survivors’ Lawsuit Against FBI After Charleston Church Shooting NICS Failure

Charleston Church Shooting Lawsuit Dylann Roof

courtesy thedailybeast.com

The FBI hasn’t exactly covered itself in glory over the past decade. One of the bureau’s biggest black eyes came when it was revealed that the bureau failed to deny a firearms purchase to the Charleston church shooter who later murdered nine people with the gun. Survivors of the shooting had filed a wrongful death suit against the bureau for failing to deny the purchase despite an earlier admission of narcotics possession.

A federal judge has dismissed 16 lawsuits filed by survivors of a 2015 mass shooting at a South Carolina church who sued the government over the failure of an FBI-run background check system to prevent the purchase of the murder weapon.

U.S. District Judge Richard Gergel also criticized what he called “abysmally poor” Federal Bureau of Investigation policies for the system that allowed Dylann Roof buy the gun he used to kill nine people, all African-Americans, at a historic black church in Charleston.

The survivors claimed that the FBI had sufficient information their systems to deny the shooter’s purchase during his background check process.

Wrongful death lawsuits filed by survivors and family members of victims of the shooting alleged that at least one of the background check databases maintained by the federal government had information that should have prevented the firearm sale.

Gergel criticized the FBI’s policy to deny background check examiners access to the database, known as N-DEx.

If the examiner assigned to Roof’s purchase request had been able to access N-DEx, he would have seen Roof’s 2015 drug arrest and would have barred him from buying the gun, Gergel wrote in his decision.

The government’s argument in the case that it had to deny background check employees access to N-DEx, as it was restricted to law enforcement agencies, was “simple nonsense,” Gergel wrote.

Multiple NICS failures, including Charleston and the Sutherland Springs shootings, allowed prohibited persons to purchase firearms later used in mass shootings and have prompted the passage of so-called Fix NICS provisions in the latest budget bill.

It clearly pained Judge Gergel to dismiss the survivors’ suit against the hapless law enforcement agency.

In his ruling released late Monday, Gergel said that the government had immunity from being sued for its policies, “even really bad policy choices.”

comments

  1. avatar No one of consequence says:

    Complete and total lack of surprise.

    1. avatar kevin says:

      Correct. The more power we give to the government, the greater the chances of a mistake, and the more we will blame the government for “causing” events like this. This is the liberal dream- to let the government do *everything*, and then complain when they do it badly, and then give it even more responsibility in the stupid and unfounded hope for a different result.

      The government only screwed up because we gave it a job to do. We never should have given it that job. It will only screw up whatever job we give them. Its only job should have been to take care of its citizens. In this case, by identifying, treating and protecting them from the dangerously mentally ill. It will screw that up also, but hopefully not at the expense of too many innocents.

      The government didn’t cause this massacre. It is a poorly run political machine. What else would you expect from it?

  2. avatar Dark Omni says:

    That is ridiculous. No surprise that the government gets immunity…Look everything in the past…Kent State, Ruby Ridge, Waco. All of thise couldve been handled differently. This has to change. The government shouldn’t be above the law either after all they are all people as well. Well they are ones that will have this on their conscience.

    1. avatar Ranger Rick says:

      “they are ones that will have this on their conscience”.

      Highly unlikely.

      1. avatar RA-15 says:

        Combine the lot & I don’t think you could find a conscious.

      1. avatar anonymoose says:

        No lawsuit can bring back your dead family though.

      2. avatar frank speak says:

        …..yeah, they lost….then they went out and gave us Waco…hopefully they finally got the message….

    2. avatar Garrison Hall says:

      The more governments become authoritarian, the more their bureaucracies become incompetent. I think this has to do with the concurrent increase in power bureaucracies experience under authoritarianism. Progressives like to talk about the “administrative state” as being more benign and equitable but, in fact, what happens is that the resultant bureaucratic structures become dangerously autonomous. Autonomous bureaucracies are not responsible to anyone and, even worse, it is usually the case that nobody is really in charge of them. F. A. Hayek talks about this in “The Road To Surfdom”. It’s not exactly light summer reading, but it explains a lot.

    3. avatar CZJay says:

      When you sue the cops the money comes out of the tax payers’ pockets. If someone wins a lawsuit against the department don’t be surprised you see more traffic tickets being passed out afterwards.

  3. avatar Ranger Rick says:

    The government’s argument is specious, a contracting company working for the DOJ & the FBI can always have access granted to fulfill the contracted mission. Perhaps the FBI doesn’t trust the contracting company?

  4. avatar Gun Owning American says:

    So suprising that a government judge ruled in favor of the government.

    1. avatar Mark N. says:

      Not really. He did not want to, but well-established principles of sovereign immunity compelled him to do so. Bias is not a factor in the decision.

      1. avatar CZJay says:

        Government workers are sovereign citizens? They all get some kind of special license? Like some kind of diplomatic immunity? If that’s the case, we need to repeal the 2nd Amendment and outlaw self defense.

  5. avatar bob says:

    You can’t sue the government because the people make up the government, therefore you would be suing yourself. This is where the immunity comes from.
    If there were a payout, who would pay, all taxpayers…..

    We collectively tried, mistakes were made, kicking your own ass does no good.

    1. avatar TrueBornSonofLiberty says:

      But govt agencies are sued all the time. And lose all the time or take the prudent course and settle. How is it that police departments nationwide regularly settle multi million dollar lawsuits with tax payer money, but the FBI can’t even be sued because of this convenient immunity?

      1. avatar Ed Schrade says:

        Appeal to next level.

      2. avatar bob says:

        Depends on how the lawsuit is presented.

        Straight cash reprimand for an accident, nope.
        sue an individual for their own incompetence, maybe.

        These guys tried to straight up sue the gov.

    2. avatar Ralph says:

      “You can’t sue the government because the people make up the government, therefore you would be suing yourself. This is where the immunity comes from.”

      No, that’s not where “sovereign immunity” comes from. BTW, that’s the actual name of the legal immunity doctrine, which is a big clue as to where the doctrine comes from. In English Law, it was called “Crown Immunity.”

      It means that the King can do no wrong. And no, I’m not kidding.

      1. avatar CZJay says:

        The King can’t break the rules when he makes them.

        Do as I say, not as I do!

    3. avatar Mark N. says:

      Actually, it is not that at all. The basis for sovereign immunity is ancient. In essence, the King makes the law, and can decide the terms upon which the king will allow himself to be sued. That can be total immunity, or limited immunity, depending on circumstances. The easiest way to think of it is that the sovereign is immune unless it says otherwise. For example, the government can be sued under the Civil Rights Act for various torts committed by police agencies, e.g., excessive force claims (as but a single instance). The government cannot be sued for natural conditions of the land, like cliffs, wild animals, etc, but it can be sued if it builds a faulty improvement, and the improvement is a cause of injury or death. All of the exceptions to immunity are detailed by statute.

  6. avatar Ropy saliva says:

    When, precisely, were any Federal law enforcement agencies viewed(justifiably) as bastions of impartiality and integrity? I’m genuinely interested in hearing some opinions.

    1. avatar RA-15 says:

      Not in my 54 years on this planet !!

      1. avatar frank speak says:

        personal accountability would be concept more of us would like to see…but it usually results in some underling being tossed under the bus…

  7. avatar former water walker says:

    Well I’ll be J. Edgar Hoovered! The FBI is a “special” case I see. .GOV owns us😩😢😡

    1. avatar CZJay says:

      Well, you did have a “serial number” given to you after your creation.

  8. avatar GS650G says:

    And Dylan Roof would have remained unarmed because we know once on the denied list it’s physically impossible to buy a firearm.
    Which the judge didn t buy either.

    1. avatar CC says:

      Uhm a LOT of people lying on 4473 forms get arrested. some liberal jurisdictions won’t but plenty of jurisdictions would.

      Ultimately this one comes from Obama’s AG, Eric Holder reducing charges for prior thresholds of amounts of hard drugs considered distribution amounts. See the 2014 holder memorandum

  9. avatar m. says:

    de gubmint never be wrong

    1. avatar CZJay says:

      They are almost always wrong, they just never do any wrong.

  10. avatar ollie says:

    From WAPO :
    Roof was NOT a convicted felon, his arrest was for misdemeanor drug possession so it was not flagged for a background check. The 4473 question states “are you a user of illegal drugs” , NOT “are you a possessor”. Had he been arrested for public drug intoxication, it would be different, maybe.
    If WAPO is correct, Roof was not really an official prohibited person so the argument about a faulty NCIS is somewhat moot.

    1. avatar TrueBornSonofLiberty says:

      Isn’t there a question on the 4473 where it asks (paraphrased) “have you been arrested for an offense that could be punishable for more than a year in prison”? I believe Roof was prohibited.

      1. avatar ollie says:

        The 4473 fine print instructions specifically exclude State Misdemeanors that have two years or less punishment as grounds for prohibited person status.
        Which might or might not be the case here, but likely do to overcrowding in most state prisons resulting in reduced penalties for most misdemeanors.

      2. avatar JR Pollock says:

        No, it asks if you’re currently under indictment or an information filed in a felony(more than 1 year incarceration). If the charges are dismissed, or you’re acquitted at trial, you’re not prohibited.

        You can’t be denied an enumerated right based solely on an arrest, unless the case is ongoing/current. I don’t recall the specifics of the Roof case, as to whether his drug arrest had been adjudicated.

        1. avatar TrueBornSonofLiberty says:

          My memory stinks, but I believe it was still pending. In fact, it happened relatively closely to his murders, but before he purchased the gun.

        2. avatar LarryinTX says:

          Big picture is that the system failed, will always fail, was designed to fail. Should be scrapped, not discussed as if it were meaningful in some way.

      3. avatar DonS says:

        Isn’t there a question on the 4473 where it asks (paraphrased) “have you been arrested for an offense that could be punishable for more than a year in prison”?

        Adding some more detail to previous replies…

        Questions 11b and 11c ask:

        b. Are you under indictment or information in any court for a felony, or any other crime for which the judge could imprison you for more than one year?
        c. Have you ever been convicted in any court of a felony, or any other crime for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation?

        The prohibitions behind those questions are in 18 USC 922, subsections (d), (g), and (n).

        The instructions for form 4473 go on to explain that state misdemeanors punishable by imprisonment for two years or less don’t count. That exception comes from 18 USC 921 (a)(20).

        Eugene Volokh explained in the Washington Post (possibly the article to which ollie refers) that:
        * Roof was charged with misdemeanor possession of a controlled substance.
        * The misdemeanor charge was erroneously entered as a felony.
        * That misdemeanor carries a maximum penalty of 6 months imprisonment and a $1000 fine.
        * Roof allegedly admitted to possession, according to the arrest report.
        * Roof might have been prohibited as an “unlawful user of a controlled substance”.

        Whether Roof would have been prohibited as a drug user would likely come down to whether the definition of “Unlawful user of or addicted to any controlled substance” in 27 CFR 478.11 includes someone who, according to a police officer’s arrest report, allegedly admitted that he possessed a controlled substance without a prescription. That regulation describes, as evidence that may be used to draw “an inference of current use”, such things as multiple arrests, a conviction, or a drug test. It doesn’t list anything like “a single arrest with an alleged admission”.

        I believe Roof was prohibited.

        According to the relevant federal statutes and regulations, it doesn’t seem likely that he was a prohibited person.

        1. avatar TrueBornSonofLiberty says:

          Thanks for that detailed explanation. As a law abiding citizen who’s filled out an embarrassingly large amount of 4473’s, it’s done with such haste, as there’s nothing on there to answer yes to other than citizenship, lol. In other words, I’ve never really paid close attention to those questions because they’re not applicable to me.

  11. avatar barnbwt says:

    Lemme guess; just as cops have no legal duty to protect citizens, these federal databases/programs have no legal duty to protect citizens, either (despite promised protection being their sole ‘compelling interest’ justification for legality)

    1. avatar CZJay says:

      I’m from the government and I’m here to help (if I feel like it).

  12. avatar Alexander says:

    In essence, the judge recognized the fact that we are now a Banana Republic and that the ruling class will not be held accountable for its actions. At least he’s honest.

    1. avatar CZJay says:

      But why do other judges get to make new laws from the bench when it comes to human/civil rights?

  13. avatar Colt Magnum says:

    Ultimately responsibility lies with the shooter. He could have taken his rifle home and used for target shooting and/or self-defense, like millions of others. No one would have been the wiser. He could have cleaned up his act and lead a productive life. Instead, he chose to commit this atrocity.

  14. avatar W says:

    Yep. The government is not responsible for protecting you. Nor is it responsible for being competent. Nor can clearly incompetent or disinterested employees be removed in a timely fashion.

    Now, turn in your guns. You don’t need to protect yourself.

  15. avatar Every Town's Village Idiot says:

    Any failures of background check systems simply prove that we need more and better background checks.

    We need to enter more people into the reject lists and we need to run a check every time a gun changes hands, loans, rentals, gifts, private sales…

    1. avatar CZJay says:

      The betas/prey want everyone to be on a ban list then removed when they can prove to the government that they won’t eat meat.

    2. avatar frank speak says:

      that kind of stuff is the law already in some places…yet many people don’t bother to comply…a law that people won’t respect or abide by is less than worthless..

  16. avatar Ian in Transit says:

    This lack of accountability is one of the reasons that we have the 2nd, and that it is still relevant today.

  17. avatar John Q Public says:

    It’s all a bunch of Authoritarian Fantasy ,anyhow…Eventual the DemoCommies, RINOs, and The Globalists will have all Americans in a “PreCrime Database…” A special place for political dissidents, political opposition, True Freedom loving Republicans, Constitutionalists, Libertarians, NRA/GOA/[email protected] supporters/Knife Rights/Term Limits supporters/etc, etc…”

  18. avatar BierceAmbrose says:

    I for one think a bigger ban list, that’s not checked more often is a fine idea. Hey, this guy got ignored. No reason we shouldn’t leave everybody else out, too.

  19. avatar Brian Cuprisin says:

    You guys need someone to edit your posts. Badly.

  20. avatar CZJay says:

    Working as intended:

  21. avatar Hannibal says:

    Don’t worry, I’m from the government and I’m here to help

    So you’re not allowed to help yourself because I’m here

    Except when I’m not, which is often. But you can’t blame me, you should have known better!

  22. avatar Bill B says:

    We have had the government that the Founders warned us about for some time. I am sure they are rolling in their graves. It is well past time We The People retake what is rightfully ours or it will continue to get worse.

  23. avatar anarchyst says:

    If anything, police should be held to a higher standard than that of the public…As it stands now, police can commit crimes with impunity because, in most situations, they investigate themselves…Behavior that would get an ordinary citizen charged, convicted and incarcerated is routinely ignored by “the powers that be” because police are considered to be “above the law” as the “law” is whatever they say it is, the Constitution be damned…
    Police officers are the only group that can murder someone by falsely claiming that “they feared for their lives”, have 48 to 72 hours to “get their stories straight”, and have a union lawyer and compliant prosecutor-steered “grand jury” absolve them of responsibility.
    Police demand immediate compliance (Israeli-style)–with two or three cops issuing and yelling out conflicting commands, it is easy to see how a person under police control could lose his life for merely attempting to follow conflicting directions.
    Ever notice that police unions are “fraternal”? This should tell you something. The “thin-blue-line” is a gang, little different than street gangs–at least when it comes to “covering-up” their questionable and quite often, illegal and criminal behavior.
    In today’s day and age, “officer safety” trumps de-escalation of force. This, in part, is due to the militarization of the police along with training in Israeli police tactics. This becomes a problem, with the “us vs. them” attitude that is fosters, along with the fact that Israel is a very different place, being on a constant “war footing”, its police tactics are very different.
    It is interesting to note that our military operates under “rules of engagement” and “escalation of force” doctrine, unlike American police departments which have NO “rules of engagement” policies.
    There are too many instances of police being “given a pass”, even when incontrovertible video and audio evidence is presented. Grand juries, guided by police-friendly prosecutors, quite often refuse to charge those police officers who abuse their authority.
    Police officers, who want to do the right thing, are quite often marginalized and put into harms way, by their own brethren…When a police officer is beating on someone that is already restrained while yelling, “stop resisting” THAT is but one reason police have a “bad name” in many instances…this makes the “good cops” who are standing around, witnessing their “brethren in blue” beating on a restrained suspect, culpable as well…
    I realize that none of the following will ever be enacted into law, but, on can hope that at least SOME of the following can be implemented:
    Here are changes that can help reduce police-induced violence:
    1. Get rid of police unions. Police unions (fraternities) protect the guilty, and are responsible for the massive whitewashing of questionable police behavior that is presently being committed.
    2. Eliminate both “absolute” and “qualified” immunity for all public officials. This includes, prosecutors and judges, police and firefighters, code enforcement and child protective services officials, and others who deal with the citizenry. The threat of being sued personally would encourage them to behave themselves. Require police officers to be “bonded” by an insurance company, with their own funds. No bond=no job. You can bet that insurance companies would be more diligent in weeding out the “bad apples” than our present system…
    3. Any public funds disbursed to citizens as a result of police misconduct should come out of police pension funds–NOT from the taxpayers.
    4. Regular drug-testing of police officers as well as incident-based drug testing should take place whenever an officer is involved in a violent situation with a citizen–no exceptions.
    5. Testing for steroid use should be a part of the drug testing program. You know damn well, many police officers “bulk up” with the “help” of steroids. Steroids also affect users mentally as well, making them more aggressive. The potential for abuse of citizens increases greatly with steroid use.
    6. Internal affairs should only be used for disagreements between individual officers–NOT for investigations involving citizen abuse. State-level investigations should be mandatory for all suspected abuses involving citizens.
    7. Prosecutors should be charged with malfeasance IF any evidence implicating police officer misconduct is not presented to the grand jury.
    8. A national or state-by-state database of abusive individuals who should NEVER be allowed to perform police work should be established–a “blacklist” of abusive (former) police officers.
    9. Most people are unaware that police have special “rules” that prohibit them from being questioned from 48 to 72 hours. This allows them to “get their stories straight” and makes it easier to “cover up” bad police behavior. Police must be subject to the same laws as civilians.
    10. All police should be required to wear bodycams and utilize dashcams that cannot be turned off. Any police officers who causes a dash or body cam to be turned off should be summarily fired–no excuses. Today’s body and dash cams are reliable enough to withstand harsh treatment. Body and dashcam footage should be uploaded to a public channel “on the cloud” for public perusal.
    11. All interrogations must be video and audio recorded. Police should be prohibited from lying or fabricating stories in order to get suspects to confess. False confessions ARE a problem in many departments. Unknown to most people, police can lie with impunity while civilians can be charged with lying to police…fair? I think not…
    12. Any legislation passed that restricts the rights of ordinary citizens, such as firearms magazine capacity limits, types of weapons allowed, or restrictive concealed-carry laws should apply equally to police. No special exemptions to be given to police. Laws must be equally applied.
    13 “Asset forfeiture” is a form of “legalized robbery under color of law” and must be abolished. We must return to Constitutional principles when it comes to “crimefighting”. The so-called “war on drugs” is actually a “war on the citizenry” and has had an extremely corrosive effect on the Constitutional principles that our country is (supposed to be) founded on.
    14. “No-knock” raids must be abolished as they put both police and (especially citizens) in harms way. Even the Nazis “knocked on the door” before gaining entry.
    15. SWAT teams must be reigned in on their “dynamic entry techniques”. Utilizing SWAT teams for routine situations is dangerous to both police and citizens. Smashing everything in sight “just because they can”, blaming it on an “adrenaline rush” must end. There is NEVER a reason for destroying property.
    16. The “21 foot rule” must be modified or abolished. American police training assumes that ANYONE that gets within 21 feet of a police officer and is deemed a threat, even a non-life-threatening situation is “fair game” for the use of lethal force. Persons with rakes, sticks, knives, or even their fists have been executed, even when non-lethal means would have been more appropriate. Police hide behind the “21 foot rule” in order to justify questionable police shootings. Their “excuse”, when brought before a prosecutor or grand jury is that “they feared for their life” or “that is the way they are trained”. THAT has to change. Police have a greater responsibility NOT to use deadly force against those that they could easily subdue by other means.
    17. Clear and concise “rules of engagement” must be established for ALL American law enforcement personnel. Any deviation from these rules must be severely punished. It is interesting to note that American military veterans in combat zones operate under more restrictive “rules of engagement” than American “law enforcement”. In fact, American “law enforcement” operates under NO “rules of engagement”. They have total “carte blanche” to destroy whoever they want. THAT has to change…
    Police work is not inherently dangerous…there are many other professions that are much more dangerous.

    1. avatar Alan says:

      The Iron Workers trade for instance, this regarding item 17 above.

    2. avatar frank speak says:

      that cop in pittsburgh just got charged by the DA….whether a jury will convict remains to be seen….

    3. avatar Jug says:

      And then there are police officers with the morals of the Peterson that almost got away with killing his two wives!

  24. avatar Alan says:

    The judge’s discription of FBI antics as “simple nonsense” is something of an understantment, given that CRIMINAL BULLSHIT would be ever so much more accurate and to the point. By the way, a significant reduction in the public’s willingness to cooperate with “law enforcement” should come as no surprise. Seek not to know for whom the bell tolls, it tolls for thee, and thou are the puller of the bell’s cord. AKA what goes around comes around.

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