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Judge crucifies FBI for failed Dylann Roof background check in Emanuel AME shooting

Dylann Roof (FILE/Grace Beahm/The Post And Courier/AP Pool Photographer)

Ultimately, a federal judge on Monday dismissed negligence lawsuits filed against the FBI by families of the Emanuel AME Church shooting victims and survivors.

But in dismissing the lawsuits, U.S. District Judge Richard Gergel gave a harsh review of the FBI and its background check policies, describing them as "simple nonsense," among other criticisms.

Gergel said a "tragic failure" in the agency's background check system allowed Dylann Roof to buy the handgun he used to murder nine worshipers during a June 15, 2017, Bible study at Emanuel AME.

Under the federal Brady Handgun Violence Prevention Act, Roof shouldn't have been allowed to buy the gun based on his criminal history.

Gergel says FBI background checkers would've discovered that, if not for flawed policies and procedures.

'A SIMPLE GOOGLE SEARCH'

Gergel in his ruling primarily criticizes the FBI for "abysmally poor" policy decisions that tie the hands of background checkers in some cases, while mandating low standards of due diligence in others.

"The FBI's background check system is disturbingly superficial, excessively micromanaged by rigid standard operating procedures, and obstructed by policies that deny the overworked and overburdened examiners access to the most comprehensive law enforcement federal database," Gergel wrote in his ruling to dismiss the lawsuits..

In Roof's case, a background checker ran his name through the National Instant Criminal Background Check System (NICS) on April 13, 2015, finding Roof had been arrested more than a month earlier on a felony drug charge.

Roof's rap sheet showed the arrest was made in Lexington County, so the background checker reached out to two separate Lexington County law enforcement agencies for the incident report on the arrest.

However, the arrest was actually made by the Columbia Police Department within a section of Columbia city limits lying in Lexington County. The two Lexington County law enforcement agencies told the examiner that.

But the background checker couldn't find contact information for a Columbia Police Department in Lexington County. That's because the Columbia Police Department is listed in the FBI's records exclusively as a Richland County agency, according to a July 2015 statement by then FBI director James Comey.

"A simple Google search would have produced the contact information for the Columbia Police Department," Gergel wrote.

But FBI policy doesn't allow background checkers to use internet search engines during criminal history investigations, according to Gergel.

Furthermore, Gergel says there's no expectation or requirement of FBI background checkers to follow up if they don't get necessary records when researching criminal histories.

"This may not have met the most minimal standards of common sense or due care, but the examiner did not violate her agency's policy," Gergel wrote in his Monday ruling that the FBI had not negligently broken protocol.

At a seeming dead end, the examiner elected to do nothing else, Gergel says, and Roof's background check remained classified as "pending."

An April 16, 2015, the federally mandated three-day waiting period now passed, the gun broker was legally allowed to sell Roof the pistol.

Two months and one day later, Roof traveled to Charleston, sat with the Emanuel AME worshipers for more than an hour during a Bible study, then proceeded to gun nine of them down.

'SIMPLE NONSENSE'

The examiner who conducted Roof's background check still could've found the information necessary to prevent Roof from buying the gun, if she'd been allowed to search the FBI's National Data Exchange (N-DEx) database, Gergel says.

Gergel says N-DEx is the most comprehensive federal criminal justice database, and Roof's incident report was available therein at the time of his background check.

Yet the FBI denies NICS background checkers access to N-Dex, Gergel says, based on the argument in the Emanuel lawsuits that the NCIS is not a law enforcement agency.

"The Court finds the offered explanations to be simple nonsense," Gergel wrote, holding that criminal background checks by the FBI "constitutes quintessential law enforcement activity."

Gergel goes on to accuse the FBI of talking from both sides of its mouth with respect to whether or not the NICS is a law enforcement agency.

The FBI argued it would not releasing certain NICS policies for review, claiming "law enforcement privilege." Gergel says the agency there admits the NICS "is a criminal justice agency," despite arguing to the contrary.

Gergel further accuses the FBI of cherry-picking in its interpretation of a policy it used in the lawsuit to justify not allowing NICS access to the N-DEx.

Gergel says that policy was written before the N-DEx even existed, and accuses the FBI of blatantly disregarding the definition of "relevant" with respect to which databases NICS should have access to.

Gergel goes on to hammer the FBI for passing the buck with its argument that allowing NICS access to the N-DEx would have required approval from the agency's internal Advisory Policy Board.

Gergel said that argument is "not credible" because the Advisory Policy Board was created by the FBI Director, and makes recommendations to the director.

"It does not have authority to deny an FBI division access to an FBI-managed criminal information database," Gergel wrote.

Rather, the judge argues the FBI's director has the authority to make such changes at any time.

"He could do this today," Gergel says.

'HOPELESSLY STUCK IN 1995'

Gergel holds that the FBI's standard operating procedures for NICS are fraught with "glaring weaknesses" that need further review by the FBI Director in light of the Emanuel tragedy.

"The NICS 'one and done' approach to the request of information is not defensible, and there must be a mechanism to follow up if no response is provided to an initial inquiry," Gergel says.

Primarily, Gergel suggests that even if a background check can't be completed within three days, the NICS should continue trying to locate potentially critical information after the three day period.

Gergel also blasts the NICS for archaic procedures he labels "dubious and outdated," such as a policy that has background checkers seeking information via fax, and the previously mentioned issue of not allowing examiners to perform simple Google searches.

"The system's ... prohibition of its examiners accessing general internet search engines seems hopelessly stuck in 1995," Gergel wrote.

Gergel says FBI director Christopher Wray needs to be candid with Congress in asking for funding and staffing needed to perform more thorough and effective background checks, so as to keep firearms out of criminals' hands.

"Perhaps the FBI, learning fully the details of the failure of its system in this tragic series of events, will promptly take corrective steps to prevent a similar' failure of the system in the future," Gergel wrote in his conclusion to Monday's ruling.

Following his conviction on 33 hate crime charges in 2016, Dylann Roof is on death row at a maximum security federal prison in Terra Haute, Indiana.

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