Though he tossed out the Emanuel AME Church victims’ lawsuits against the FBI on Monday, a federal judge in Charleston blasted "nonsense" in the background check system that led to Dylann Roof’s gun purchase.
The FBI could easily fix the problem but has chosen to hide behind bureaucratic procedures and misleading statements to its congressional overseers about the system’s effectiveness, U.S. District Judge Richard Gergel said in a ruling that came three years and a day after the June 17, 2015, racially motivated hate crime.
Roof acknowledged drug use during an arrest before the killings — a factor that should have prohibited his gun purchase. An FBI database contained a police report documenting the arrest, but the agency didn’t give its background examiners access to the resource.
When Roof went to buy a gun, the examiners instead tried fruitlessly to get the report directly from South Carolina agencies. A three-day waiting period expired, and Roof was allowed to pick up his Glock pistol without the FBI ever determining his eligibility. The self-avowed white supremacist killed nine black worshippers during a Bible study two months later.
The government’s argument that the FBI’s National Instant Criminal Background Check System, or NICS, cannot use the agency’s own database because the unit doesn’t have a criminal justice purpose “is simple nonsense,” Gergel said. The FBI’s director could fix the problem “today” without waiting on the bureaucratic process for changing outdated regulations or tweaking policies that are “hopelessly stuck in 1995,” the judge added.
“The fault here lies in some abysmally poor policy choices made regarding the operation of the NICS,” Gergel said. “The most obvious of these poor policy choices was the decision to deny the examiners access to the most comprehensive federal criminal justice database.”
Gergel dismissed the victims’ lawsuits — 16 of them in all — under the FBI’s recommendation because the Brady Handgun Violence Prevention Act, which set up the background check system, gives the government immunity in most situations when it fails to prevent weapons from winding up in the wrong hands.
He issued the scathing order, though, to lay out factual and legal findings that could give the victims’ families and survivors a good case in seeking special congressional legislation that would award money for their loss. In 1984, South Carolina Sen. Strom Thurmond pushed through a bill awarding funds to 16 workers at the Charleston Naval Shipyard, the judge mentioned.
Legal experts had anticipated the lawsuits’ demise. During a hearing earlier this year, the judge lambasted “outrageous” government deficiencies laid bare by Roof’s case while noting the legal hurdles in the lawsuits' path.
Charleston attorney Andy Savage, who represents some of the victims, said he would consult with other families and their lawyers about their next step.
“What happened was inexcusable, and those that allowed the arming of this hate-filled, mentally deranged, drug-abusing racist must be held accountable,” Savage said. “Our efforts do not stop here.”
A phone call and an email seeking comment from FBI headquarters and from Stephen Fischer, a spokesman for the agency's Criminal Justice Information Services, were not immediately returned. The West Virginia-based division oversees both the background check system and the database that might have helped halt Roof’s purchase. Fischer had declined to discuss the issue while the lawsuits were pending, and the FBI had been largely silent since then-Director James Comey said shortly after the shooting that policies had been followed yet failed to thwart Roof.
The 21-year-old from Eastover completed a federal application in April 2015 to buy the pistol from a West Columbia gun store.
His earlier drug arrest at a Columbia mall popped up during the initial background check. But the charge alone wasn't enough for the FBI to deny the purchase; examiners needed to find the incident report and see if Roof had admitted drug possession or use.
While the purchase was delayed, the examiners sent out faxes seeking the report. But the arrest had been reported to the FBI with three errors, posing challenges to the examiners’ search. The quest was rendered even less effective by the agency’s strict procedures that, for example, barred Google searching that would have easily revealed contact information for the agency that had the document, Gergel said.
All along, the FBI’s most comprehensive records repository, the National Data Exchange, or N-DEx, held the report and 500 million other records, but the examiners were allowed to search only a set list of databases. The N-DEx wasn’t on the list.
“This would have … saved the examiner in this transaction, and likely many other examiners in thousands of other transactions, a great deal of time and effort in a system that is already tremendously overburdened,” Gergel wrote in his order.
After sending a few faxes to Columbia-area agencies that might have had the report, “the examiner did nothing more” and moved on to the next case, the judge added.
A 'sham' system?
Since then, allowing buyers to pick up a weapon without a resolved background check has become known as the “Charleston loophole.”
The Emanuel shooting sent Roof to death row. It also inspired legislative proposals that would extend the waiting period beyond three days, which might give the FBI more time to find such documentation. In reality, the FBI rarely spends time searching for records beyond its initial inquiries — an effort that boosts the system’s efficiency by quickly turning around some background checks while abandoning more complicated ones.
“This 'one and done' practice directly contradicts FBI statements to the public and Congress” in annual reports stating that examiners continue to seek the missing information beyond the three-day period, the judge said.
Gergel highlighted the lawsuits’ triumph: prodding detailed information about the FBI’s system for the first time in a courtroom. "Glaring weaknesses" were revealed, he said.
Savage, the local attorney, said the lawsuits confirmed “just what a sham the current background program is.” Expanding the current system to cover new categories of buyers won’t enhance gun safety, he said.
“Background checks by the government provide a false sense of security,” he said.