Posted on September 05 2019
Justice and Liberty for all...
Late last Friday the Fourth Circuit Court of Appeals changed the litigation course for Charleston shooting victims families. The Court held that the injured parties (actually 14 different lawsuits) can in fact sue the United States Government. That the Government neglected their duty to conduct a proper firearms background check. And while it’s difficult to know for certain I’d that Charleston shooter had been (properly) denied would the Charleston Nine still be with us. One thing for certain is the panel held that the shooter used the same gun
The Plaintiffs now appeal, contending that the district court erred on both grounds.
We agree. Because neither provision affords the Government immunity in this case, we reverse the district court’s order granting the Government’s motion to dismiss for lack of subject-matter jurisdiction and remand for further proceedings consistent with this opinion.
4th U.S. Circuit Court of Appeals (4thCCOAs) ruled that the Federal government was not immune from liability under either the Federal Tort Claims Act (FTCA) or the Brady Act to prevent handgun violence. In doing so the 4thCCOAs reversed and remanded back to the district court: This could be viewed as a seismic shift for victims and for both Federal and State and Local Law Enforcement.
And yes I’ll admit that sometimes I get lost in what some might refer to as the boring details but in my line of work those details actually matter, a lot. The 4thCCOAs goes on to explain in particularity the Standard Operating Procedures as required by the Brady Act. They took great care to explain (albeit in broad terms) how the Federal Firearm Background Checks should work. Operative word here is “should”. Again these section of the ruling goes into granular detail of who, why, what, when and how of what went wrong.
...separate component of the Brady Act regulatory scheme relevant to this case
addresses data integrity. Entitled “Validation and data integrity of records in the system,” this regulation provides that the FBI “will be responsible for maintaining data integrity during all NICS operations that are managed and carried out by the FBI
...the FBI created the National Data Exchange (N-DEx”) to provide criminal justice agencies at the federal, state, local, and tribal levels with access to a vast array of criminal justice information like incident and arrest reports, booking reports, and pretrial investigations.
This link will take you to the FBI National Data Exchange. Because it’s important to remember that the Brady Act squarely puts the onus on the FBI for data Integration. The 4thCCOAs went on to explain how the misidentification of both the arresting agency and charge. Moreover pages 17 and 18 actually explain how one mistake horribly snowballed in to a string of mistakes. Some of which was completely out of the hands of the FBI.
This misidentification was a product of the fact that Roof was arrested in a part of Columbia, South Carolina, that falls in Lexington County. Most of Columbia is in Richland County. The Columbia PD thus has jurisdiction over the area where Roof was arrested and indeed made the arrest, but Roof was booked at the Lexington County Sheriff’s Office,...
This error was especially consequential because it caused NICS to believe mistakenly that the documents associated with Roof’s arrest would be found with the Lexington County Sheriff’s Office rather than the Columbia PD.
Because the record of Roof’s arrest alone was insufficient under NICS procedures to establish that he was disqualified from possessing a firearm, the Examiner tried on Monday afternoon to obtain a copy of the incident report underlying the arrest.
Ultimately as part of discovery process, it was confirmed that both Columbia PD and the Lexington County Sheriff’s Office had previously submitted the Roof incident report to N-DEX but that Database wasn’t checked by the FBI NCIC examiner. There is little doubt had the actual report had been reviewed a determination would have been made that the application for a firearm would have been denied.
Examiner “did nothing more,” leaving the Roof inquiry in the Delayed queue and processing other inquiries while awaiting a response from the Lexington County Solicitor’s Office. This response never came.
NICS Section eventually obtained a copy of the incident report underlying Roof’s arrest. Prepared by the Columbia PD,
There is no dispute that the information in this report would have
been sufficient to establish that Roof was an unlawful user of a controlled substance who could not lawfully possess a firearm
Again nothing will bring the Charleston Nine back nor will it ease the pain of their families the have. Yet in a small way the 4thCCOAs paved a way for these victims families to obtain the justice they need and most importantly deserve. Moreover this ruling also in pain staking detail identified where the process broke. I don’t know if that will bring comfort to the victim’s families but part of the grieving process is closure.
Sometimes closure means you’ve done everything in your power to make sure this kind of mistake never happens again. My closing thought on this ruling can be found on page 32...
NICS Examiner’s alleged negligence in failing to follow a clear directive—contact the arresting agency—contained within the mandatory SOPs. The Government can claim no immunity in these circumstances.
The plaintiffs argued that the Government contravened a mandatory directive by failing to maintain “data integrity” during the NICS background check” - both the district court and 4thCCOAs stared this Claim and lack of a sufficient by plaintiff’s “data integrity” Claim had “no merit. Essentially the Plaintiffs argument was “the FBI created the state’s Contact List” but statutorily speaking that “State call list” is not part of the NICS Index.
With respect to the specificity of “immunity” under The Brady Act - again one only needs to read the plain text of the statute § 922(t)(6) - here the 4thCCOAs state in unequivocal terms that the district court erred. In simple terms the Plaintiffs sued the Governmen. The Plaintiffs didn’t sue an employee of the Government, if they had then yes of course the plain tech of § 922(t)(6) provides immunity.
(s)m either in their respective persons, capacity or in the
“a local government” or “an employee of the Federal Government or of any State or local government”...Both conditions must be met for immunity to
take effect. Neither condition is satisfied here.
statutory condition is not met: the federal employees whose conduct forms the basis of this suit were not “responsible for providing information” to the NICS system. 18 U.S.C. § 922(t)(6).
What’s interesting is how the Government tried to “shape shift” what conducting research is versus “putting information in to the database(s)” - no that’s not me being flippant that’s what tbd Government’s argument was - the Examiner’s research is putting information in to the system...thankfully the 4thCCOAs panel was said what now?
Examiners may issue firearm denials in the course of their work therefore does not mean they are “responsible for providing information” to the NICS system within the meaning of § 922(t)(6). The Government thus cannot claim immunity for this additional reason.
In conclusion, the immunity provision of the Brady Act does not shield the Government from this lawsuit.
One thing that’s difficult to determine is how the 4thCCOAs Ruling will impact other victims families. For example the Sulpher Springs mass shooting, it was later determined that the DOD had neglected to send NCIC the shooters criminal records, specifically his abuse of his (then) wife and child and stepchild. All of which would have likely flagged this shooter’s application to buy firearms. Furthermore this December 2017 DOD-OIG Report
Within the Services, the Army, Navy, and Marine Corps had more missing fingerprint cards and final disposition reports.
The Army had 262 (28 percent) missing fingerprint cards and 385 (41 percent) missing final disposition reports.
The Navy had 197 (29 percent) missing fingerprint cards and 243 (36 percent) missing final disposition reports.
The Marine Corps had 37 (29 percent) missing fingerprint cards and 46 (36 percent) missing final disposition reports.
Again I don’t have a crystal ball nor do I have have the proclivity of ruminating on whataboutism. Notwithstanding in my line of work you tend to view rulings in a far broader context then most average people. Therefore it’s a pretty reasonable conclusion to surmise the 4thCCOAs Ruling might have far greater impact beyond the Charleston Nine’s Complaint. In sum I’d keep an eye on this because I am curious how the other Circuits might Rule. Specifically the 5thCCOAs, and clearly the assumption here is possibility of the Victims families who were murdered by another unhinged gunman who should have never been approved to buy a gun, much less an AR-15. Again the assumption here is those victims would file in one of many Texas Federal District Court(s) - which could lead to a split within in the Circuit.
The Charleston Nine...in memoriam..
On what would have other wise be a typical hot and humid summer night, evil walked into the Mother Emmanuel-AME Church and unleashed his hate on Church members. The same ones who with open arms and hearts prayed with him. In turn this mad man took out a gun and murdered those who prayed with him. No, I will not give him the dignity or modicum of respect by speaking his name.
While it would be easy to write about the hateful murderer, it makes sense to focus on and remember those who were senselessly gunned down by a coward’s Hate and desire to “start a race war”. Because the recent 4thCCOAs Ruling will make sense once you realize who and what these nine victims are and why their families need justice beyond the life sentence of the murderer.
Rev. Clementa Pinckney - biography found here.
Pinckney linked three major concerns: the social gospel tradition, civil rights activism, and policymaking. They were seen in his work on gun violence and police reform. He pushed for mandatory police body cameras both before and after the fatal police shooting of North Charleston resident Walter Scott on April 4, 2015.
Cynthia G. Hurd - her colleagues at the Association for Information Science and Technology wrote this incredible biography, found here.
Her loss is incomprehensible, and we ask for prayers for her family, her co-workers, her church and this entire community as we come together to face this tragic loss,” CCPL stated. “Cynthia was a tireless servant of the community who spent her life helping residents, making sure they had every opportunity for an education and personal growth.”
Susie Jackson of the Charleston Church shooting, she was the oldest. The South Carolina African American History wrote this requiem of Ms. Jackson, found here.
Close friends and family recall that as an octogenarian Jackson was healthy, active and showed no signs of slowing down. She adored her three grandchildren and eight great grandchildren. She never missed a graduation because she was very passionate about education.
Jackson was very kind-hearted, often giving of her time and resources. Her home was warm, inviting and always a popular place to have good food, fellowship, and fun.
In June of 2019 the local NBC News Affiliate reported, the Susie Jackson Way project was unveiled.
Tywanza Sanders - he used his own body to shield his great aunt Susie Jackson from the spray of bullets. Moreover his own mother Felicia Sanders survived because she “played dead” but the importance of her son using his body to shield his great aunt can not be overlooked. One of the reasons we know about Tywanza Sanders heroism is his own mother lived to tell what her son did, his attempts to talk the shooter out of killing his fellow church members You can read more in the 2015 Guardian article, found here.
Ethel Lee Lance - she was a “life long member of the AME Church”, again the South Carolina African American History wrote a wonderful tribute to her and her life, found here:
The life of Ethel Lee Lance, 70, epitomized loyalty, consistency and dedication to serving others. Born in Charleston where she and her husband Nathaniel Lance raised their family, Lance was a lifelong member of Emanuel AME Church. She took great pride in her beloved church, working as a custodian and helping keep its facilities clean for five years. Whether she was working, attending church services or studying her Bible, Lance was at Emanuel AME nearly seven days a week.
Depayne Middleton-Doctor - she worked at Southern Wesleyan University, (SWU) Learning Center in Charleston as an admissions coordinator - by all accounts she was a warm and generous person. To that end SWU announced full scholarships for her four children, you can read more here.
“DePayne was a wonderful woman and co-worker who embodied the best of what we do here at SWU,” said Dean Grile, senior director of recruitment services and director of the university’s Charleston learning center. “She enjoyed reaching out to working adults to give them a second chance or a first opportunity to improve their lives and their family’s lives through education.”
Daniel L. Simmons, Sr - he was a senior pastor at several AME Churches, he earned the moniker of “Super Simmons from the Super Seventh.” you can read more about his biography here
After retiring in 2013, he was asked by Rev. Clementa Pinckney to join the ministerial staff of Mother Emanuel Church, where he continued to teach and help develop the church’s leadership team. Simmons was a member of several organizations, including Phi Beta Sigma Fraternity and Capital City Lodge No. 47.
Simmons stressed the importance of education to his children, grandchildren and other young people. Simmons loved jazz music and the visual arts. He was a man of great intelligence, determination and responsibility, qualities that enabled him to leave a legacy of faith and compassion.
Rev Sharonda Coleman-Singleton - spent decades as an educator and in her own right a leader within the community she served, biography found here
Coleman-Singleton enrolled at S.C. State University to pursue a bachelor’s degree in speech pathology and audiology. Outside the classroom, she was a member of Alpha Kappa Alpha sorority and an award-winning hurdler. She helped propel the SCSU track-and-field team to a conference championship. After completing her undergraduate studies, she went on to attend Montclair State University and obtained a master’s degree in speech language and pathology.
Myra Thompson - like the other members of the Church’s bible-study group, Ms Thompson spent the better part of her adult life serving others. To that end The Citadel wrote a touching tribute to their former graduate, found here. This 2016 Time Cover Story offers you a far more exhaustive biography of Mrs. Thompson, her husband, their family and the community that cherished them. Notwithstanding this Time Cover Story speaks to the profound loss, recovery and long arduous road to forgiveness.
Grief is a messy journey. There isn’t a handbook or guide to help those impacted by unspeakable tragedy - grieve. It’s a process and it’s not always a straight line from start to finish. That said perhaps it’s a good time to remind you what most Americans have come to expect from our President. That in the face of unspeakable tragedy they must rise to the unenviable occasion of being our Country’s “Comforter-In-Chief”. To be the voice of moral leadership and to speak with certain clarity and yes with compassion...
President Obama - Amazing Grace
The Gun Lobby & Victims
During the 106th Congress, on In February 16, 2005 (then) Senator Larry Craig introduced S.397, The Protection of Lawful Commerce in Arms Act (PLAA) By October 2005 S.397 became Public Law 109–92 and granted near blanket immunity for gun manufacturers.
When I say this law offers near blanket immunity - that might be viewed as an overstatement, allow me to be more precise; the PLAA grants very broad immunity for gun manufacturers and dealers in federal and state court. I now refer you to SEC. 2. FINDINGS; PURPOSES.(pages 1 and 2, respectively) specifically subsections 6 thru 8
(6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation’s laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing
(7) ...The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States...
To understand the breadth and scope of the immunity and purpose of PLAA as detailed in (8)(b) (1) thru (7)
And for good measure the dutiful NRA lawmakers gave their financiers the gilded gift of not only are victims not allowed to file suit but any current litigation shall be dismissed. If the ubiquitous immunity granted to gun manufacturers, ammunition makers and their various distributors and sellers is hard to understand Sec 3 of the PLAA is rather definitive:
In short if you or a loved one is killed or gravely injured - as the aggrieved party, with cognizable injury this law prevents you from seeking restitution in either Federal and/or State Court, thanks to PLAA. And as with any “new” law, yes of course there were numerous legal challenges. As the Giffords Law Center astutely summarizes (found here):
There have been several constitutional challenges to the PLCAA, but to date none have been successful
NRA - LOBBY PLAA 2005
The NRA spent a significant amount of funds lobbying lawmakers before, during and after the PLAA. Cumulatively between the 5 outside lobbyists and the NRA’s self lobbying they spent over $2.3 million just on this piece of legislation. From a return on investment I’d say they really got their return.
See the NRA’s 2005 Senate LDA filing, (January to June 2005) disclosing they spent $950,000.00
See NRA’s 2005 Senate LDA filing (January to June 2005) which disclosed another $840,000.00 spent on “self lobbying”.
See Ogilvy Government Relations - lobbying on behalf of the NRA - 2005 Senate LDA Report, year end $180,000.00 in lobbying (January to June 2005)
See Dentons US LLP (oddly its concurrently listed Scheunemann & Assoc) lobbying on behalf of the NRA, 2005 Senate LDA Report, $80,000.00
See Scheunemann & Assoc - lobbying on behalf 0f the NRA - 2005 Senate LDA Report $20.000.00
Bad Data in, Bad Data out.
However one would think that after the Charleston Shooter’s Indictment the appetite to allow victims families the justice of seeking some kind, any kind of restitution would be acceptable. Especially in the aftermath of this unspeakable tragedy, when then FBI Director Comey issued the following statement, which reads in part:
I try hard to explain our work to them, and I am also committed to explaining to them when we make a mistake and what I intend to do about it. I’m here today to talk to you about a mistake, in a matter of heartbreaking importance to all of us. Dylann Roof, the alleged killer of so many innocent people at the Emanuel AME church, should not have been allowed to purchase the gun he allegedly used that evening. Let me tell you what happened, as I understand it today...The NICS examiner studied Roof’s criminal history and saw that the arresting agency listed on his rap sheet was the Lexington County Sheriff’s Office. There was no mention of the Columbia police on the rap sheet. It is not clear why that happened, but it made a big difference in what happened next. The examiner followed our protocols and did three things:
As you know transparency is a good thing and sometimes it can create an uncomfortable discussion. Provided that discussion’s focus and primary goal is figuring out the confluence of events that helped create the perfect environment for a hate-filled coward purchase a gun, which he would later use to open fire on a group of individuals. who were exercising their constitutional and God given right to fellowship in their house of worship.
The fact is in moments of tragedy people have the right to ask questions, seek redress or a remedy and hold public officials accountable. I’m not in any way saying that the blame is unwarranted, what I am saying is there was/is plenty of blame to go around. But perhaps it’s best served to take a moment and understand the variables and process...
National Instant Criminal Background Check System (NICS)
With the November 1993 passage the Brady Handgun Violence Prevention Act (Public Law 103-159) which amended the Gun Control Act of 1968. The provisions in the Brady Law mandated a waiting period of 5 days “before a licensed importer, manufacturer, or dealer may sell, deliver, or transfer a handgun to an unlicensed individual” one important caveat the waiting period applies only in “states without an acceptable alternate system of conducting background checks on handgun purchasers” - one key and arguably most important provision of the Brady Law was the NICS Database to run background checks.
Since 1998 to present the FBI has processed: 320,524,675 NICS Firearm background checks.
This is the FBI-NICS main website, I recommend that you bookmark it as there are several links to various performance reports and other statistical information. I should reiterate that extensive cooperation between Federal & State/Local Law Enforcement is absolutely paramount. The reality is if a mistake happens it can have deadly consequences. Therefore it is imperative to identify what went wrong, so it can be fixed. The vast majority of the time law enforcement works in tandem as one cohesive unit.
Another fact you might be unaware of is that the FBI uses a blend of three different databases to determine the “suitability” of an applicant purchasing a firearm (see DOJ-BJS)
- Interstate Identification Index (III), a database of criminal history record information
- National Crime Information Center (NCIC), which includes information on persons subject to civil protection orders and arrest warrants
- NICS Indices, which includes the information contributed by federal and state agencies identifying persons prohibited from possessing firearms who are not included in the III or NCIC, such as persons with a prohibiting mental health history or who are illegal or unlawful aliens.
Should you be inclined I’d recommend you read this 2016 DOJ-OIG Report if reading a lengthy report isn’t your thing (I’m not judging) then you might find the 2 page summary more desirable as it provides an abbreviated summary of the complexity of the Federal Firearms Background Check.
In addition to the FBI - the ATF also maintains the following records/letters
- Brady Letters to FFLs
The point of giving you just a tiny teaspoon of the Federal Firearms Background check? I’m hoping thar it provide you with a factual foundation with the intent of helping you understand how these Background checks work. In the simplest of terms; if you have a system with a lot of data sources, some of which the FBI does not have 100 percent control of - loopholes and data aggregation can have awful unintended consequences. Meaning the Charleston shooter should have never been allowed to purchase a gun, any gun. Remember how I explained the PLAA? And how the NRA poured money in it lobbying efforts. Leaving victims families little to no recourse. Meaning last Friday’s ruling gives the Charleston victims the green light to sue the Government.
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