Why the FBI won't be sued for background check slip-up

FBI: Background check on Dylann Roof failed
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FBI: Background check on Dylann Roof failed 02:13

Story highlights

  • FBI admits that background check errors allowed Dylann Roof to purchase firearm legally
  • Danny Cevallos: Don't expect a lawsuit against FBI; officials are mostly immune to civil liability

Danny Cevallos is a CNN legal analyst and a criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

(CNN)The FBI has now publicly admitted to federal and state agencies' errors that led to the purchase of a firearm used in the killing of nine innocent people at Emanuel African Methodist Episcopal Church in Charleston.

What exactly did the FBI do wrong? And can it be held liable for a mistake that enabled the accused killer to purchase a firearm in the South Carolina mass killing?
Danny Cevallos
A licensed firearms dealer must initiate a background check -- a federal procedure the 1993 Brady Act established -- to determine whether transfer of a firearm to a prospective purchaser violates state or federal law. The FBI uses the National Instant Criminal Background Check System, or NICS, to conduct the checks.
    Typically, when someone wants to buy a firearm, the seller contacts NICS with the potential buyer's information to initiate the check. The NICS then checks three electronic databases to determine if any criminal records preclude the purchase of a gun.
    If a record shows "that receipt of a firearm by the prospective transferee would violate 18 U.S.C. § 922 or state law," the NICS check results in a "denied" response to the seller. On the other hand, if the examiner locates a record that "requires more research to determine whether the (buyer) is disqualified from possessing a firearm ..." it provides a "delayed" response to the seller.
    Would expanded background check have prevented shooting?
    Would expanded background check have prevented shooting?

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    Would expanded background check have prevented shooting? 05:07
    If delayed, the transaction's status is "open," and the dealer may not complete a sale unless either the examiner provides a follow-up "proceed" response, or three business days (exclusive of the day of the request) elapse without a "denied" response from the FBI.
    After that three-day period, the buyer can buy his gun. And that appears to be how Dylann Roof got his gun.
    The FBI-conducted background check in April revealed that Roof had been arrested in March on a felony drug charge but had not been convicted, according to the FBI. The bureau said that the felony charge alone, because there hadn't been any conviction, would not have prevented him from buying the gun under federal law.
    It's unclear, however, if the FBI was right about the felony charge, or if the charge was actually a misdemeanor, legal expert Eugene Volokh pointed out in The Washington Post.
    Either way, the drug charge mandated further inquiry into the "two potential reasons to deny the transaction": either a confirmation of a felony conviction, or proof that the potential buyer is an "unlawful drug user or addict," FBI Director James Comey said.
    The second reason, according to the FBI, would have justified the denial of Roof's purchase because he admitted to drug possession in the arrest report. The problem is, the examiner never saw this information because of a series of miscommunications with -- and misidentifications of -- the local law enforcement agencies.
    These unfortunate misses by law enforcement resulted in a delay, which in turn allowed Roof's legal purchase of the firearm once the three-day period expired.
    Many, upon hearing this, will demand these agencies and agents be held liable for the errors that led to the transfer of a firearm to Roof.
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    They will be waiting a long time. It's not likely to happen.
    Government officials are routinely cloaked in all manner of immunities from civil liability. "Absolute" immunity bars any action against officials for even their malicious or bad-faith conduct, and is typically reserved for specific members of government.
    FBI and law enforcement agents are instead commonly covered by "qualified" immunity, which protects them from civil liability stemming from their discretionary functions.
    The protection extends to "all but the plainly incompetent or those who knowingly violate the law." Law enforcement agents "are not liable for bad guesses in gray areas; they are liable for transgressing bright lines."
    That's right: As long as an official's action is only really dumb -- but not quite "plainly incompetent" -- he or she can avoid civil liability. The bottom line is that the victims, their families and their next of kin likely cannot sue the government for any of these mistakes.
    Oddly enough, federal law does allow people to sue for wrong decisions on firearm background checks -- but not gun victims or bereaved family members. Instead, the right to sue is reserved for a buyer improperly denied the right to get a gun. If gun buyers can sue for background check oversights, then should victims of gun crimes also have the right to sue when those oversights result in tragedy?
    Official immunity and gun ownership are independently valued legal principles, and in this case they are brought head-to-head. The FBI admitted to activity that -- were it a private company and not immune -- would expose it to devastating liability.
    Allowing prospective gun owners to sue the government seems inconsistent with immunity, but prospective buyers would argue that their constitutional right to bear arms supports this exception to governmental immunity. Still, if the right to bear arms is so cherished that it supports an exception to governmental immunity from suit, we should consider whether the right to live unmolested by bullets supports another exception, too.