SANDERS, et al., v. UNITED STATES OF AMERICA, ___ F.3d ___, U.S. Court of Appeals for the Fourth Circuit,

No. 18-1931 (30 August 2019).

Federal law prohibits several categories of persons from buying or possessing a firearm, including anyone who is an unlawful user of or addicted to a controlled substance. 18 U.S.C. §922(g)(1), (3).  In 1993, Congress enacted the Brady Handgun Violence Prevention Act to prevent persons who are barred by law from purchasing guns.  The Act required the Attorney General to establish a National Instant Criminal Background Check System (“NICS”) that federally licensed gun dealers must use to determine whether a prospective buyer could legally buy a firearm, 34 U.S.C. §40901(b).  If the background check reveals that the sale of the firearm would be illegal, then the dealer cannot proceed with the sale. 18 U.S.C. §922(t)(1).

The process begins when a federally licensed firearms dealer initiates a background check by contacting the NICS Operations Center.  An Examiner at the Operations Center searches the NICS databases for any records that would prohibit the transfer to the prospective buyer.  If there is no disqualifying information, then the NICS examiner issues a “Proceed” response.  If the databases show that the sale to the prospective buyer would violate federal or state law, then the Examiner issues a “Denied” response.  If the search uncovers a record that requires more research to determine if the prospective transferee is disqualified, then the Examiner issues a “Delayed” response.  Such a response means that the dealer may transfer the firearm only if the dealer receives a follow-up “Proceed” response from NICS, or the expiration of three business days.  If NICS fails to make a determination within three business days, the dealer may complete the sale and transfer the firearm.

On Saturday, 11 April 2015, Dylann Roof sought to buy a semiautomatic pistol from a licensed gun dealer in West Columbia, South Carolina.  The NICS database had a record indicating that Roof had been arrested six weeks earlier for possession of cocaine by the Lexington County Sheriff’s Office.  An arrest for a drug offense may indicate that a person is an unlawful user of or addicted to a controlled substance and, thus, cannot legally possess a firearm, 18 U.S.C. §922(g)(3); but such an arrest is not by itself disqualifying.  For that reason, the transaction was put in a Delayed status.  NICS informed the gun dealer that the sale could proceed on Thursday, 16 April 2015, unless instructed otherwise.

The NICS examiner needed more information to determine if Roof was a user of or addicted to illegal substances.  To get more information, she attempted to contact what she thought was the arresting agency.  However, NICS’ database incorrectly identified the Lexington County Sheriff’s Office as the arresting agency, when in fact the Columbia Police Department had arrested Roof.  The misidentification occurred because Roof was arrested in a part of Columbia, South Carolina that is in Lexington County, whereas most of Columbia is in Richland County.  The Columbia Police Department has jurisdiction over the area where Roof was arrested, but Roof was booked at the Lexington County Sheriff’s Office because the arrest was in Lexington County.  The Lexington County Sheriff’s office informed the Examiner that it had no report of the arrest and that “Columbia PD will have the Report.”   

Unfortunately, the examiner did not contact the Columbia Police Department.  Instead, she contacted the West Columbia Police Department, a different police agency, and she did so because only the West Columbia Police Department appeared in NICS’ contact list for Lexington County.  “Columbia PD” did not appear in the contact list for Lexington, County.  In response to her inquiry, the West Columbia PD responded that “[t]his is not a WCPD Arrest.”  After receiving that response, the Examiner did not contact Columbia PD, and she did nothing more, leaving the Roof inquiry in the Delayed queue.  After the expiration of three days, the dealer consummated the sale of the pistol to Roof.

If the examiner had gotten a copy of the police report, the report would have confirmed that Roof was arrested for possession of suboxone, not cocaine as initially stated in NICS’ database.  Suboxone is a controlled substance used to treat drug addiction.  There was no dispute that the information in the report would have been sufficient to establish that Roof was an unlawful user of or addicted to a controlled substance and could not lawfully possess a firearm.

On 17 June 2015, Roof used the semiautomatic pistol to murder nine people at the Mother Emanuel A.M.E. Church in Charleston, South Carolina.  The then Director of the FBI, James Comey, acknowledged that Roof was able to buy the pistol because of lapses in NICS’ background check.

The survivors of Roof’s attack and the estates of the deceased victims sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §2674, and alleged that the government negligently performed the NICS background check.  The government argued that it was immune from liability under the discretionary function exception in the FTCA, which grants immunity for claims based on the performance or non-performance of a discretionary function or duty by the government. 28 U.S.C. §2680(a).  The government also asserted immunity under a provision of the Brady Act that grants immunity from claims arising out of the failure to prevent the sale of a firearm to an ineligible person.  The district court granted the government’s motion to dismiss based on both of the asserted grounds for dismissal.

The Fourth Circuit reversed.  The Court said that the discretionary function exception applies only if (i) the conduct at issue involves an element of judgment or choice, and (ii) the decision was based on considerations of public policy.  Neither condition applied to the Examiner’s failure to get a copy of the arrest report.  This case does not involve a policy decision or a decision of judgment or choice.  The NICS’ standard operating procedures (SOPs) require an Examiner to contact the arresting agency and get the arrest report.  The Examiner knew that the West Columbia PD was not the arresting agency.  She had the name of the actual arresting agency – the Columbia PD – in front of her for almost two full days, but did not contact Columbia PD for a copy of the arrest report that would have resulted in denial of the firearm transaction.  That was not the exercise of a discretionary function under the FTCA.

The Court of Appeals also rejected the government’s defense based on the immunity provision in the Brady Act.  The provision, 18 U.S.C. §922(t)(6), grants immunity only to a local government or an employee of the federal government or of a State for local government.  It does not immunize the federal government from the failure to prevent the sale or transfer of a firearm to a person whose receipt or possession is unlawful.

Chief Judge Gregory wrote the Court’s opinion, in which Judge Diaz concurred.  Judge Agee dissented in part.  In his view, the Examiner’s actions were shielded by the discretionary function exception, because the SOP’s did not mandate how the Examiner was to conduct additional research and because the research involved judgment of the kind that the discretionary function exception was designed to shield.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at [email protected].