Loophole let thousands of abusers get guns

A photo on Dylann Roof's online manifesto shows the .45-caliber Glock pistol he used in the deadly June 17, 2015, attack at Emanuel AME Church. File

A judge has denied the federal government’s motion to dismiss a spate of wrongful death lawsuits brought by survivors and families of the nine people killed in the Emanuel AME Church shooting who argue the FBI was negligent in botching the gunman's background check.

U.S. District Judge Richard Gergel ruled Thursday that several arguments in the case are "sufficiently plausible" to allow it to move forward. The U.S. Department of Justice had asked Gergel to dismiss the lawsuits on grounds that the court lacks the proper jurisdiction to hear them and that the plaintiffs failed to fully outline their claims.

The lawsuits, filed in June, allege the FBI failed to create and manage its background check database or perform a proper check of Roof. South Carolina is one of 36 states and territories that rely on that database to ensure gun sales comply with federal and state rules. 

Less than a month after the June 2015 massacre, FBI Director James Comey publicly admitted failures in completing Roof’s background check within the required three-day wait time. He blamed incomplete and inaccurate paperwork.

Roof had just turned 21 when he drove to Shooter’s Choice in West Columbia and picked out a .45-caliber Glock pistol. During that visit, he applied for the required background check. 

That check should have discovered reason to deny him the sale. A few weeks earlier, Roof had been arrested in Columbia after admitting that he possessed strips of Suboxone, a narcotic used to treat opioid addiction, without a prescription. 

But when an examiner looked at Roof’s rap sheet, the wrong arresting agency was listed and she contacted the wrong one.

“At that point, the FBI apparently gave up its attempt to learn about Roof’s purportedly felonious drug arrest, and it took no action to prevent Roof from being allowed to purchase a handgun,” Gergel’s order states.

After waiting the required three days, the gun shop owner sold Roof the gun. Two months later, the self-avowed white supremacist walked into Emanuel AME Church with the Glock, eight magazines and 88 hollow-point bullets.

The FBI didn't continue its review until two weeks later when it sent Shooter's Choice a notice to deny Roof the gun purchase. By then, Roof had killed nine people. In January, a federal jury sentenced him to die for his crimes.

The plaintiffs allege that “negligently failing to prevent Roof from purchasing his Glock was a substantial factor in the harm suffered by the victims,” Gergel’s order states. He called the argument “sufficiently plausible at least to survive a motion to dismiss.”

Whether the background check examiner should have acted differently is a disputed fact, as is the lawsuit’s challenge over the FBI’s failure to maintain its database, Gergel ruled in allowing the case to move forward.

State Sen. Gerald Malloy, a Democrat from Darlington who represents the family of Emanuel AME's slain pastor, has filed legislation in the General Assembly to extend the waiting period for background checks from three days to 28. Another bill would extend the wait from three days to five.

However, both bills face big hurdles. South Carolina is a staunchly pro-Second Amendment state. The House Judiciary subcommittee took just five minutes earlier this month to pass a bill that would allow open carry of handguns without any type of permit.

Contact Jennifer Hawes at (843) 937-5563 or follow her on Twitter @jenberryhawes.

Jennifer Berry Hawes is a member of the Watchdog and Public Service team who worked on the newspaper's Pulitzer-Prize winning investigation, "Till Death Do Us Part."