« Homeless man kills one robber, wounds another | Main | From Steve Halbrook »

Fourth Circuit rules on Federal liability for Charleston church mass killing

Plaintiffs sued the government for having botched the background check on the shooter, who was thus able to buy his gun despite having had a drug bust six weeks before his purchase (Federal law prohibits gun possession by unlawful users of drugs). The Fourth Circuit recently ruled that the suit could go ahead on a single theory -- liability based on the fact that the examiner was told the identity of the arresting agency, the policy was to check with that agency, and the examiner did not. The Federal Tort Claims Act, which allows suit against the government, has an exception for "discretionary functions" -- you can't sue over those. The exception is broadly construed: you can only sue if you can find a government employee who did something not only negligent, but non-discretionary, that is, they violated a law, regulation, or policies or specific orders. So long as they have discretion to act or not, the government cannot be sued, no matter how negligent its people were.

If you want to see a real indictment of how the background check system is run in real life, read the District Court ruling that was appealed. On pp. 10-19 it covers all the problems. There is a newer and far more advanced Federal criminal history database, but NICS examiners are not allowed to use it. They may not consult the internet in general, even to look up a police department's phone number. They may make an inquiry to the arresting law enforcement agency only by fax, and only one fax is allowed. If the law enforcement agency does not respond to the fax, that is the end of the matter. But the District Court and the Fourth Circuit ruled that all those choices were discretionary with the agency, so suit was not allowed.

It's amusing that the Brady Act immunity (can't sue for failure to prevent a sale) didn't insulate the government because it only exempted Federal employees, and not the entire government, from suit, and suit here was against the government. Amusing because whoever drafted that didn't realize that since the Westfall Amendment (1988, I think, around six years before the Brady Act) suit under the FTCA must be brought against the government directly, and not name the employee who committed the wrong.

I wonder if the Fourth Circuit ruling could also be a basis for suing over a false positive (an indication a person was barred from buying a gun, when they were not)?