Survivors and relatives of nine people killed in a racist attack at a South Carolina church asked a federal appeals court Tuesday to reinstate their lawsuit over a faulty background check that allowed Dylann Roof to buy the gun he used in the 2015 shooting.
A judge dismissed the lawsuit last year, finding that the families had failed to prove that their claims fit into narrow exceptions to laws that shield federal agencies and government employees from liability when carrying out their official duties. But U.S. District Judge Richard Gergel also sharply criticized the FBI for what he called its “disturbingly superficial” background check system.
The FBI has acknowledged that Roof’s arrest on a drug possession charge in Columbia, South Carolina, weeks before the shooting at Charleston’s AME Emanuel Church should have prevented him from buying a gun.
In arguments before a three-judge panel of the 4th U.S. Circuit Court of Appeals on Tuesday, a lawyer for the survivors and families of those killed argued that an examiner with the National Instant Criminal Background Check System was required under standard operating procedures to do additional research after learning Roof had been arrested.
“So what does she do? Nothing. She quits,” said attorney Billy Wilkins.
In his ruling last year, Gergel described a series of clerical errors and missteps that allowed Roof to buy the handgun he later used in the massacre. The judge said a jail clerk wrongly listed the Lexington County Sheriff’s Office as the arresting agency in the drug case. The examiner then sent a fax to the sheriff’s office, which responded that it did not have the arrest report and directed her to Columbia police.
Gergel said that under the system’s operating procedures, the examiner was directed to a federal listing of law enforcement agencies, but Columbia police did not appear on the list. After trying the separate West Columbia Police Department and being told it was the wrong agency, the examiner did nothing more.
After a three-day waiting period, Roof went back to a West Columbia store to pick up the handgun.
Wilkins said the examiner was required under standard operating procedures to contact the Columbia Police Department.
But Thomas Ward, a deputy assistant attorney general in the Civil Division of the Department of Justice, told the judges that the standard operating procedures are not binding; instead, he said, they are meant only as guidance for examiners who process about 22,000 inquiries per day and about 8.2 million a year.
“The SOPs do not create a mandatory requirement that trumps discretionary function,” Ward said.
Roof has been sentenced to death in the massacre.
The appeals court panel did not indicate when it will issue its ruling.