Outrageous. Superficial. A fool’s errand.
A federal judge in Charleston used those words Tuesday in a scathing rebuke of how the FBI handles gun background checks that fail to prevent tragedies like the Emanuel AME Church shooting.
The process involves FBI examiners sending out thousands of requests with aging technology — a fax machine — and hoping for a response from police departments that have records pertaining to whether someone is allowed to buy a gun.
The FBI already has some of those documents, including one that would have stopped Dylann Roof from getting the pistol he used to kill nine black worshipers at the church. But the agency's internal rules halted it from searching a database that stored the document.
U.S. District Judge Richard Gergel called for that system to change Tuesday as survivors of the 2015 mass shooting and the victims’ families packed his courtroom. Gergel's pleas brought force to outside calls for change. The Post and Courier reported last month on officials' hesitancy to act.
"You have these examiners on a fool’s errand chasing something the government already has,” Gergel said. “It’s outrageous … when you have a system right there that would save a tremendous amount of time.
"Part of this is bigger than this case. ... I'm outside my lane, but I'm trying to make sure something good comes out of this."
Gergel’s comments came as he weighs the fate of the victims’ lawsuit against the FBI over the failed background check of Roof. Thought to be a first of its kind, the measure has shed light on the FBI’s procedures and revealed new flaws in the already embattled National Instant Criminal Background Check System, or NICS.
A spokesman for the NICS unit could not immediately be reached for comment Tuesday. The FBI has declined to answer past inquiries from the newspaper about the issue.
But the judge, who also oversaw the criminal trial that prompted Roof’s death sentence, indicated that the suit could be doomed because of more technical legal provisions. One may give the FBI immunity from liability when a background check falls short. He's expected to rule in the coming weeks on the government's motions to dismiss the case.
As an alternative, Gergel suggested that attorneys pursue special legislation in Congress that could pay money to the victims.
No matter how the suit is resolved, the judge urged government lawyers Tuesday to consider reforming the system.
"I think the government's argument is sort of 'So what?'" he said. "There's no accountability."
After the hearing, Andy Savage, an attorney for several of the victims, praised Gergel for taking a strong stance.
"One of the purposes of the lawsuit is to effect change and bring attention to these problems," Savage said. "The government needs a wake-up call.
"This was a first step. Certainly, we have the judge's attention."
Roof filled out a federal application in April 2015 to buy his Glock pistol from a West Columbia gun shop.
In the initial background check, a red flag popped up: Roof's drug arrest a month earlier in Columbia. The drug charge alone wasn't enough for the FBI to deny the purchase; NICS examiners first needed to find the arrest report and decide whether Roof had admitted to drug use, a prohibiting factor for gun ownership.
The purchase was delayed as the examiners sent out faxes — a technology that government lawyers said Tuesday is used because it cannot be hacked. But the wrong arresting agency had been listed on Roof's rap sheet. The Lexington County Sheriff's Office told the FBI to get the report from Columbia police, but the examiners never reached out to that agency.
Because the background check wasn't done after three business days — the waiting period under the Brady Handgun Violence Prevention Act — Roof was allowed to pick up the pistol.
He used it June 17, 2015, to kill the nine worshipers at Emanuel. Three survived.
Much discussion among lawmakers after the slayings has centered on the so-called "Charleston loophole," which allows retail buyers to get their guns before a background check is finished. But extending the waiting period would have done little in Roof's case because the FBI abandoned the check early and never revisited it.
The FBI has said that examiners can reopen delayed checks as special projects after the three-day period. If anyone had wrongly acquired a gun, federal agents can track them down and seize the weapon.
But information revealed during the lawsuit suggested that examiners were discouraged from revisiting the pending cases, the judge said Tuesday. Gergel said he's worried that the FBI's annual reports to Congress have misrepresented how such checks are handled.
"Frankly, we've learned something fairly troubling about the nature of these background checks," Gergel said. "It's not the robust background check (that everyone thinks). ... It's very superficial. It's truncated."
'Never happens again'
The judge voiced astonishment that examiners are not given access to the National Data Exchange, or N-DEx, which put the Roof report just "just a few keystrokes away.”
The FBI-maintained database holds an estimated 500 million local, state and federal records, and it's accessible to tens of thousands of law enforcement officers worldwide.
Federal officials have argued that NICS cannot use N-DEx because the unit is not a criminal justice agency, even though it's part of the FBI. But Gergel listed a few of the other types of agencies that can: prisons, college public safety departments, medical facilities and Interpol, the international policing organization.
"Foreigners have it," Gergel said. "There are ... groups of people who have access to it who seem to have a lot less need than these examiners."
Government officials have said the change would require approval from an advisory policy board and an adjustment to agency regulations. One of their lawyers, Deputy Assistant Attorney General Thomas Ward, suggested that the procedures for making the change were more complicated than the judge had portrayed.
"It requires more explanation," Ward said in the courtroom. "I think they're a lot more nuanced."
The judge's intense criticism often elicited murmurs among the dozens of family members who packed the courtroom benches. Many nodded during the judge's remarks or shook their heads when government attorneys offered explanations. Arthur Hurd, whose wife Cynthia Hurd died in the church attack, was one of them.
"This isn't about the money," Hurd said later. "Just once in this country, I would like to see something move along that serves the greater good of us all."
Hurd's life hasn't gotten easier in the nearly three years since the shooting, he said. The thought of his wife's death still stirs tears in his eyes every five minutes.
"I'm just hoping nobody else has to go through this," he said.