Sanders v. United States, C/A No. 2:16-2356-MBS (lead case)
| Decision Date | 09 October 2020 |
| Docket Number | C/A No. 2:16-2356-MBS (lead case) |
| Citation | 493 F.Supp.3d 470 |
| Parties | Felicia SANDERS, individually and as Legal Custodian for K.M., a minor, Plaintiff, v. The UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of South Carolina |
Andrew John Savage, III, Savage and Savage, Gedney M. Howe, III, Charleston, SC, for Plaintiff.
Cate Elizabeth Cardinale, Stephen R. Terrell, Lawrence E. Eiser, United States Department of Justice, Washington, DC, for Defendant.
The Brady Handgun Violence Prevention Act, or Brady Act, established the first nationwide system for background checks. New York v. U.S. Dep't of Defense, 913 F.3d 423, 427 (4th Cir. 2019) (citing Pub. L. No. 103-159, 107 Stat. 1536 (1993) ). Under the Brady Act, a background check is required for firearms sales by licensed dealers. The Brady Act directed the Attorney General to establish a national database that would be accessible to the firearms dealers tasked with ensuring these background checks were performed. Id. The Attorney General established the National Instant Criminal Background Check System (NICS) and delegated control of the system to the Federal Bureau of Investigation (FBI). The Brady Act is codified at 18 U.S.C. § 922. The regulations under which NICS operates are set out in 28 C.F.R. Ch. 1, Pt. 25, Subpart A. The FBI also has promulgated certain standard operating procedures (SOPs) to direct the activities of NICS.
These consolidated cases are brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 - 2680. The FTCA provides that:
The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.
Plaintiffs are survivors or estates of the decedents or otherwise victims of a shooting by Dylann Roof at Emanuel AME Church in Charleston, South Carolina, on June 17, 2015. Roof entered a Bible study class and, after spending an hour with the parishioners, opened fire and killed Rev. Clementa Pinckney, 41; Myra Thompson, 59; Sharonda Coleman-Singleton, 45; Rev. Depayne Middleton-Doctor, 49; Cynthia Hurd, 54; Rev. Daniel Simmons, 74; Ethel Lance, 70; Susan Jackson, 87; and Tywanza Sanders, 26. Plaintiffs allege that the negligence of Defendant United States of America allowed Roof to purchase the weapon he used during the shootings.
The facts generally are undisputed. On February 28, 2015, Roof was questioned by Officer Fitzgerald of the Columbia Police Department about an earlier incident at the Columbiana Centre Mall in Columbia, Lexington County, South Carolina. During questioning, Officer Fitzgerald found in Roof's possession a bottle of Suboxone, which can be used as a recreational drug. Suboxone is a Schedule III controlled substance under 21 U.S.C. § 802. Roof admitted he was in possession of the controlled substance and that he did not have a prescription. Officer Fitzgerald arrested Roof and charged him with possession of a Schedule III drug. Roof was booked at the Lexington County Sheriff's Department. On March 1, 2015, an arrest warrant was issued by the Columbia Municipal Court. Roof was served with the arrest warrant on March 2, 2015, and the Columbia Police Department submitted the incident report regarding Roof's arrest to the National Data Exchange (N-DEx), an FBI-managed data base. The Lexington County Sheriff's Department submitted a second copy of the incident report to N-DEx on March 3, 2015. The Lexington County Solicitor's Office filed a criminal complaint against Roof on March 16, 2015, charging him pursuant to S.C. Code Ann. § 44-53-370(c) with possession of a controlled substance, which, as a first offense, is a misdemeanor.
On April 11, 2015, Roof went to Shooter's Choice in West Columbia, South Carolina, to purchase a Glock Model 41 semi-automatic pistol. Shooter's Choice initiated a background check on Roof through the NICS, as mandated by federal and South Carolina law. The NICS, upon receipt of a request for a background check, may respond in one of three ways: "Proceed," "Denied," or "Delayed." 28 C.F.R. § 25.6(c)(iv)(A)-(C). The "delayed" status is to allow for further inquiries, but expires after three business days. If a denial is not issued before the expiration of the three-day time period, the dealer may go ahead with the sale.
In this case, the initial inquiry from Shooter's Choice was handled by a NICS customer service representative, who entered Roof's ATF Form 4473 into an NICS automated system that automatically queried the databases of the National Crime Information Center (NCIC), the NICS Index, and the Interstate Identification Index (III). The III returned a felony arrest for Roof for manufacturing or distributing a Schedule I or II narcotic, third or subsequent offense, in violation of S.C. Code Ann. § 44-53-370(B)(1).1 The customer service representative then transferred the call from Shooter's Choice to an NICS examiner for additional processing. The examiner confirmed the III database result matched Roof's identification and then placed the inquiry into a "delayed" status. The examiner notified Shooter's Choice that Roof could purchase the firearm on April 16, 2015, unless told otherwise.
The next business day, April 13, 2015, a second examiner reviewed the transaction and checked the databases again, but found no additional information. Following the FBI's SOPs, the second examiner verified the existence of the criminal action on the Lexington County court's website. The website accurately identified the misdemeanor charge and named Officer Fitzgerald as the arresting officer with the street address of "#1 Justice Square Columbia 29201," the street address of the Columbia Police Department.
Once the NICS examiner found that Roof had been charged but not yet convicted of a drug offense, the examiner was required under the SOPs to ensure that the substance possessed was tested and confirmed to be a controlled substance, or that the arrestee had admitted the substance was a controlled substance. To obtain this information, the examiner was obligated to contact the state point of contact (POC), the courts, district attorneys, probation offices, arresting agencies, etc. to obtain a copy of the incident report. The examiner sent fax communications to the Lexington County Sheriff's Department and to the Lexington County Solicitor's Office requesting a copy of the incident report "for March 1, 2015." The Lexington County Sheriff's Department responded: The Solicitor's Office did not respond to NICS's inquiry.
Next, the examiner, still following the SOPs, reviewed a list in the NICS database of all law enforcement agencies operating in Lexington County. The City of Columbia erroneously was omitted from the list.2 The examiner noticed the City of West Columbia on the list and sent a fax requesting the incident report from the West Columbia Police Department. The morning of April 14, 2015, the West Columbia Police Department responded, The examiner took no further action, even though additional internal resources were available to her, and the SOPs mandate that "every effort must be made to obtain necessary information, in order to reach a final decision on a NICS transaction during the research phase." ECF No. 84-6, 2.
Roof purchased the Glock on April 16, 2015. There is no dispute that the information in the Columbia Police Department incident report would have been sufficient to establish Roof was an unlawful user of a controlled substance who could not lawfully possess a firearm. See 18 U.S.C. § 922(g)(3).
These actions initially were assigned to the Honorable Richard Mark Gergel. Defendant filed its first motion to dismiss on October 14, 2016. On March 23, 2017, Judge Gergel issued an order denying Defendant's motion without prejudice and ordering jurisdictional discovery. After extensive discovery, Defendant filed a second motion to dismiss for lack of jurisdiction on November 30, 2017. Judge Gergel held a hearing on the motion to dismiss on March 20, 2018, during which he directed the parties to submit additional information for clarification. After reviewing the exhaustive record, Judge Gergel issued an order and opinion granting Defendant's motion to dismiss on June 18, 2018. Judge Gergel determined that Plaintiffs’ claims were barred by the discretionary function exception to the FTCA. The discretionary function exception arises when a party wishes to sue the government for a claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Judge Gergel determined that the examiner's acts were a function of distinct policy choices made by the FBI pursuant to its charge to administer the NICS.
Judge Gergel also found that Plaintiff's claims are barred by the immunity provisions of 18 U.S.C. § 922(t)(6), which provides:
Plaintiffs appealed on August 10, 2018. On August 30, 2019, the Fourth Circuit issued an opinion in which it stated that the Brady...
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