‘Abysmally poor policy choices’ by FBI led to 2015 church shooting, federal judge finds

In dismissing 16 lawsuits against the agency, Judge Richard Gergel did not spare the government criticism.

Rev. Sidney Davis and other area pastors pray outside Emanuel AME Church in Charleston after Dylann Roof opened fire, killing 9. CREDIT: Chip Somodevilla/Getty Images
Rev. Sidney Davis and other area pastors pray outside Emanuel AME Church in Charleston after Dylann Roof opened fire, killing 9. CREDIT: Chip Somodevilla/Getty Images

A federal judge Monday dismissed 16 lawsuits against the Federal Bureau of Investigation (FBI) over a delayed gun background check that allowed white supremacist Dylann Roof to buy the handgun he used to kill nine black churchgoers in Charleston, South Carolina, in June 2015.

In dismissing the suits, Judge Richard Gergel, of the U.S. District Court for the District of South Carolina, lit into the FBI’s notoriously porous background check system.

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“The record reveals that the FBI’s [gun] background check system is disturbingly superficial, excessively micromanaged by rigid standard operating procedures, and obstructed by policies that deny the overworked and overburdened examiners access to the most comprehensive law enforcement federal database,” Gergel wrote in his ruling, which was first reported by Courthouse News Service.

The plaintiffs in the cases — survivors of the shooting and families of the victims — claimed the government acted negligently when a delay in processing Roof’s background check allowed him to buy a firearm despite a previous drug arrest, which should have prohibited him under federal law.

Despite his strong words for the FBI, Gergel ruled that the plaintiffs could not hold the government liable on two separate legal grounds, including a provision in the Brady Handgun Violence Prevention Act that indemnifies the government for failures in the background check system.

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The ruling laid out details — some of them previously unpublished — of how and why Roof was able to purchase a gun from a licensed dealer despite laws that should have prevented him.

When a gun dealer runs a background check on a customer, the FBI’s National Instant Criminal Background Check System (NICS) returns one of three answers: proceed with the sale, deny, or delay. If the background check is delayed past three business days, the dealer can choose to sell the firearm anyway — a provision that’s written into the federal law that established the background check system.

In Roof’s case, an initial examination of NICS’ three databases pulled up records that could have disqualified Roof from buying a gun. But FBI examiners needed more information to be sure. That information was in a fourth FBI database, N-DEx, but agency policy and regulations prohibit NICS staff from accessing it.

The ruling revealed that FBI could also have gotten the necessary information from the Columbia, South Carolina police department. But that department was missing from an internal FBI list of Lexington County law enforcement agencies.

Agency policies also prohibited the examiner who reviewed Roof’s background check from picking up the phone and calling law enforcement agencies in South Carolina to track the missing records down, or even from doing a simple Google search to find the right police department to contact.

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Instead, internal FBI policy was to send a single automated fax to the law enforcement agency on the FBI’s internal list but not to follow up in any way.

“The fault here lies in some abysmally poor policy choices made regarding the operation of the NICS,” Gergel concluded.

A 2016 report by the Department of Justice’s inspector general came to similar conclusions and urged the FBI to improve its gun background check system.

The FBI also did an internal review of how it handled Roof’s background check. It has since declined to make that review public. A ThinkProgress public records request for the review is still pending.

As ThinkProgress reported last year, the FBI has completed upgrades to its NICS system that include automated follow-up faxes. The agency has also asked for more funding to retain examiners in recent years.

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But, as ThinkProgress exclusively reported in February, the number of background checks that couldn’t be completed by the FBI in the three-business-day window grew in 2017 — from 3.24 percent of all background checks to 3.59 percent.

Those percentages seem small, but they amounted to over 310,000 individual instances where someone could have purchased a firearm without a completed background check — something the Justice Department acknowledged in its 2016 inspector general report.

“Although we found the overall FBI error rate was exceedingly low, even an isolated NICS process breakdown can have tragic consequences,” the report found.