A federal judge has dismissed 16 lawsuits by survivors and victims in the 2015 Emanuel AME Church massacre but not before ripping the bureaucratic "nonsense" that caused the FBI's background check system to fail, allowing Dylann Roof to buy a gun to carry out the killings.
In his 22-page order, U.S. District Judge Richard Gergel called the FBI's background check system "disturbingly superficial" and "obstructed by policies that deny the overworked and overburdened examiners access to the most comprehensive law enforcement federal database."
Roof could not "have obtained approval to purchase the murder weapon if the examiner could have accessed" the FBI's most comprehensive law enforcement crime database, the National Data Exchange, called N-DEx, Gergel wrote. That database, created after 9/11, contains over 500 million criminal justice records, including incident and arrest records.
In April 2015, when Roof bought the gun he used to kill nine parishioners at the Charleston church, an incident report detailing Roof's arrest for drug possession was in the N-DEx system, Gergel wrote. But the FBI prohibited its background examiners from using that system, Gergel wrote.
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Two months later, Roof — armed with his newly bought gun — entered Emanuel AME and killed nine parishioners during a Bible study.
Government explanations about why the FBI denies its examiners access to N-DEx files are "simple nonsense," Gergel wrote.
FBI employers performing background checks only have access to the National Instant Criminal Background Check System and two other non-comprehensive databases, Gergel wrote.
In his order, Gergel said FBI Director Christopher Wray "has full authority to allow ... examiners to access N-DEx. He could do this today."
The FBI had no immediate comment.
Charleston lawyer Andy Savage who, with Gedney Howe, represented three survivors and the families of five of the deceased, said Gergel's order exposed for the first time the inner workings — and the failings — of the FBI's background check system.
"The public thinks there is this great background check system, but it's very, very superficial," Savage said, adding his clients will consider an appeal.
In their lawsuits, the victims and estates of the slain parishioners alleged the FBI was negligent because its background check failed to keep an ineligible person — Roof — from buying a gun. They also noted then-FBI director James Comey acknowledged his agency made a "mistake."
But Gergel ruled the FBI had immunity from being sued because its employees were following an established policy — even if it was flawed.
Roof was arrested by the Columbia Police Department at Columbiana Mall on Feb. 28, 2015, for felony drug possession.
Columbia police, as well as the Lexington County Sheriff's Department, submitted a record of Roof's arrest to the FBI's N-DEx database. But no complete record of Roof's arrest went to three other FBI databases that examiners use when asked by a gun shop whether a would-be gun purchaser is eligible to buy a weapon.
Under federal law, S.C. gun shops must ask the FBI if a gun purchaser is qualified. If they do not receive a denial within three days, the purchase can proceed.
In Roof's case, three days passed and he was able to buy a Glock Model 41 pistol from Shooter's Choice in West Columbia on April 11, 2015.
In his order, Gergel underscored the uniqueness of the lawsuits. No one else, the judge wrote, has tried "to sue to (the) U.S. for the alleged failure to prevent the sale of a firearm under the NICS system to an ineligible person."
Gergel also noted the FBI's examiners are overworked, getting 22,000 background check requests daily.