The 4th U.S. Circuit Court of Appeals has breathed new life into a lawsuit filed by survivors of the 2015 Emanuel AME Church shooting and victims' families against the federal government for failures that allowed the convicted killer to purchase a firearm.
Last year, U.S. District Judge Richard Gergel dismissed the survivors' and victims’ lawsuits — 16 of them in all — because the Brady Handgun Violence Prevention Act, which set up the federal background check system, gives the government immunity in most situations when it fails to keep weapons from the wrong hands.
But on Friday the federal appeals court disagreed. A three-judge panel in Richmond, Va., sent the case back for further consideration, writing that the Brady Act does not shield the federal government as a whole from the now-consolidated lawsuit. It protects only the actions of individual employees, the ruling said.
After Gergel dismissed the cases, attorneys for the survivors and victims’ families asked attorney William "Billy" Wilkins to handle the appeal. The former 4th Circuit chief judge agreed to do so and on Friday called the reversal “very welcomed” by those who lost loved ones and survived the racist killings.
The decision has nationwide implications, Wilkins added, as the first federal appeals court ruling of its kind. While the nation debates gun laws, the three-judge panel ruled that “federal employees charged with very serious responsibilities for background checks are not immune for their inaction,” Wilkins said.
He added: “The federal government failed to live up to its responsibility."
In April 2015, a few weeks after Dylann Roof turned 21, he drove to a Columbia-area gun store to purchase a .45-caliber Glock pistol and underwent the required 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.”
Two months later, on June 17, 2015, Roof used the Glock to kill nine people during Emanuel's Bible study.
The lawsuit hinges on actions of the federal background check examiner who failed to unearth Roof's arrest six weeks earlier on a felony drug charge. Such an arrest could indicate that the person trying to buy a gun is an "unlawful user of or addicted to any controlled substance" and therefore barred from legally possessing a firearm.
The case turns on the examiner's "alleged negligence in failing to follow a clear directive" — contacting the correct arresting agency — which was a required policy, the appeals court ruling says. "The Government can claim no immunity in these circumstances."
Roof's drug arrest at a Columbia mall popped up during the initial background check when he went to buy the pistol. But the charge alone wasn’t enough for the FBI to deny the purchase; examiners needed to find the police report on that incident to see if Roof had admitted drug possession or use.
While the purchase was delayed, the examiner sent out faxes seeking the report. But the arrest had been reported to the FBI with three errors, posing challenges to the examiner's search. The quest was rendered even less effective by the agency’s strict procedures that, for example, barred Google searching that would have revealed contact information for the agency that had the document.
In early July 2015, then-FBI Director James Comey revealed the breakdown and acknowledged that Roof's gun application would have been denied if the examiner had seen the police report.
“We are all sick that this has happened,” Comey told reporters at FBI headquarters. “We wish we could turn back time because, from this vantage point, everything seems obvious. But we cannot.”
In his ruling last year, Gergel blasted problems with the FBI’s National Instant Criminal Background Check System but found federal laws ultimately shielded the government from lawsuits over its actions in the case.
Federal tort law provided immunity because the NICS examiner was not required to continue investigating after contacting a law enforcement agency for information, Gergel concluded. And the Brady Act further gives the government immunity in most situations when it fails to prevent weapons from winding up in the wrong hands.
The appeals court disagreed, ruling that the act protects individual employees from litigation but not the federal government as a whole. Further, the court ruled that the examiner was required to contact the arresting agency and had been told which agency to contact after initial confusion led her to the wrong police department.
The examiner had "unambiguously mandatory and nondiscretionary" directives about who to contact for police incident reports but "ultimately failed to comply," the ruling says.
The FBI could not immediately be reached for comment on Friday.
Chief Judge Roger Gregory wrote the appeals court opinion, joined by Judge Albert Diaz. Judge G. Steven Agee wrote a separate opinion concurring in part and dissenting in part.
Agee disagreed with the majority opinion regarding the examiner’s actions.
Because court records revealed that Roof had no convictions, and the contacted agencies provided no verified information, it was “within the Examiner’s discretion” to move on to other requests, Agee writes in his opinion.
“Any attempts to improve the efficiency and efficacy of firearms background checks should be focused on improving examiners’ access to accurate information,” Agee’s opinion says. “The majority’s approach instead hampers examiners by requiring them to follow up on every potential lead and expend further precious resources.”
Attorney Mullins McLeod, who represents three of the victims' families, said they were extremely pleased with the court’s decision.
"Today marks an important step towards complete justice," he said. "The families have shown tremendous patience, strength and resolve knowing nothing was going to come easy in their efforts to hold the government accountable."
South Carolina attorney and state Sen. Gerald Malloy, D-Hartsville, lost his friend and fellow senator Clementa Pinckney in the shooting. Pinckney was Emanuel’s senior pastor. Today, Malloy represents Pinckney’s wife, Jennifer, who hid in the church secretary's office with their 6-year-old daughter during the shooting.
Malloy said Mrs. Pinckney applauded the ruling and hoped that it kept the need for strong background checks in the public eye.
“It’s called a loophole, but it’s a case of negligence,” Malloy said. “The issue here is we’re seeking to hold the U.S. government responsible for performing Roof’s background check. If performed properly, it would have prevented Dylann Roof from purchasing the gun he used to kill these very innocent people in a church.”
Stephen Hobbs contributed to this report.