RICHMOND, Va. (CN) – Tensions ran high Tuesday in the Fourth Circuit as a government attorney argued for immunity in a case that aims to hold the FBI accountable for its failure to prevent Dylann Roof from purchasing the gun he used to kill nine black churchgoers in South Carolina four years ago.
Families of the victims tried and failed to convince a federal judge that the FBI failed to do its due diligence when it ran its background check on Roof and is liable for the carnage that ensued.
Roof, a white supremacist, carried out his attack on a Bible study class at the Emanuel AMC Church in Charleston on the evening of June 17, 2015, after spending nearly an hour with his victims.
He was convicted in December 2016 on 33 federal charges relating to the shooting, and was sentenced to death on those charges the following month. Roof also pleaded guilty to 13 state charges – including nine counts of murder, three counts of attempted murder and a weapons charge – and was given nine consecutive life sentences without parole.
Months before the murders, Roof was arrested on a minor charge and confessed to using illegal drugs. That admission should have prevented him from buying the Glock pistol he used to carry out the murders, according to the victims’ families.
The federal investigator tasked with completing his background check made contacts with the Lexington Police Department, which told her an arrest record existed but was in the possession of the Columbia Police Department.
The investigator testified that she scanned her local police contact sheet and only found the West Columbia Police Department, and when she contacted them no document surfaced, so Roof was allowed to make the purchase.
A federal judge in South Carolina ruled for the FBI last year, finding that the Brady Handgun Violence Prevention Act grants the government immunity in most situations when it fails to prevent weapons from winding up in the wrong hands.
But during Tuesday’s oral arguments at the Fourth Circuit in Richmond, Virginia, Chief U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee, called that lack of accountability “absurd.”
Grilling Deputy Assistant Attorney General Thomas Ward, the judge said the investigator “had the info, was told where it was,” but didn’t contact the correct agency.
Both Gregory and lawyers for the victims’ families pointed to FBI guidelines outlining steps investigators must follow and how, when told there is a police report that could bar someone from purchasing a weapon, they must persist until it is found.
“She didn’t follow up. It’s maybe negligent,” Gregory said. “Are the standards of practice inadequate? Didn’t they work perfectly but she just didn’t do it?”
“She complied with what was needed under the standards of practice,” Ward replied, stressing that while the standards of practice might seem mandatory, they are more guidance and not clearly defined for the sake of liability law.
“If she was negligent, that’s still a matter of discretion,” the attorney said.
U.S. Circuit Judge Albert Diaz, a Barack Obama appointee, also seemed taken aback by the FBI’s slip-up. While evidence in the district court trial showed contact information for the Columbia Police Department was missing from a list of local police agencies, he still questioned the investigator’s lack of research.
“She should have known? If she didn’t know, was she negligent?” Diaz asked of the families’ attorney, Billy Wilkins with the Greenville, South Carolina-based law firm Nexsen Pruet.
“She did know,” Wilkins responded, stressing the background check system’s policy requires “every reasonable effort” to confirm a person’s criminal history.
“She should have asked for the contact info for the Columbia Police Department … she could have pull it up from a statewide list,” he added.
U.S. Circuit Judge Steven Agee, a George W. Bush appointee who seemed to waffle on his support for the government’s argument, said federal agents believed they fully followed procedures and turned up nothing.
“That was the end of it,” Agee said.
“That’s not the end of it,” Wilkins responded, adding that Roof’s attempt to buy a gun would have been denied if the investigator had “done what she was supposed to do.”
The Justice Department’s lawyer, Ward, remained stoic throughout the tense hearing except to ask Judge Gregory if his line of questioning, which at times sounded full of shock, was an attempt at insulting him.
Still, Ward continued to argue that legal precedent and federal law protects agencies in these situations.
“If the investigator failed to take the steps required in the standards of practice, does it thwart the agency’s discretionary exemption?” Agee asked.
“It cannot trump the mandate for discretion,” Ward replied, noting about 300 FBI employees handle over 8 million background checks submitted nationwide every year. “A price for circulating internal guidance cannot be an explosion in tort filings.”
But Wilkins, who seemed confident with the emotional reactions he saw coming from the Fourth Circuit bench, tried to stress whatever federal immunity would otherwise be granted did not apply here due to the specifics of the case.
“This is a rare case and I doubt it will ever happen again,” the families’ attorney said in his closing rebuttal. “This law was made to keep guns out of the hands of people who shouldn’t have guns. The law doesn’t work if you just quit [searching].”
It is unclear when the judges will issue a decision in the case.