United States District Court, D. South Carolina, Charleston Division
Felicia Sanders, individually and as legal custodian for KM, a minor, Plaintiff,
United States of America, Defendant.
ORDER AND OPINION
Richard Mask Geigel United States District Court Judge.
matter is before the Court on Defendant's motion to
dismiss for lack of subject-matter jurisdiction (Dkt. No. 12)
and Plaintiffs motion for jurisdictional discovery (Dkt No.
16). For the reasons set forth below, the Court grants
Plaintiffs motion for jurisdictional discovery,
Defendant's motion to dismiss is denied without prejudice
except as provided below; Defendant may renew its motion
after the completion of jurisdictional discovery.
February 28, 2015, a City of Columbia police officer arrested
Dylann Roof for possession of Suboxone, a controlled
substance, without a prescription. (Dkt. No. 1 ¶¶
8-9.) That arrest occurred in a portion of the City of
Columbia that lies in Lexington County. (Dkt. No. 1-1.) Less
than three months later, on April 11, 2015, Roof attempted to
purchase a Glock handgun from Shooter's Choice, a
federally licensed firearms dealer located in West Columbia,
South Carolina. (Dkt. No. 1 ¶ 18.) Federal law prohibits
federally licensed firearms dealers from selling firearms to
certain categories of persons, including, inter
alia, unlawful users of controlled substances (18 U.S.C.
§ 922(d)(3)) and persons under indictment for or
convicted of a felony (18 U.S.C. § 922(d)(1)). Federally
licensed firearms dealers in South Carolina are required to
use the National Instant Criminal Background Check System
("NICS"), an FBI program created by the Brady
Handgun Violence Prevention Act of 1993, to ensure firearms
are sold legally. (Dkt. No. 1 ¶¶ 19-23.) The NICS
receives requests for background checks on potential buyers
from firearms dealers, searches databases it maintains for
matching information, and provides one of three possible
responses to the dealer: (1) "Proceed, " (2)
"Delayed, " or (3) "Denied." 28 C.F.R.
§ 25.6(c)(1)(iv). A "denied" response bars the
proposed sale and a "Proceed" response permits it.
A "Delayed" response "indicates that the
firearm transfer should not proceed pending receipt of a
follow-up 'Proceed' response from the NICS or the
expiration of three business days (exclusive of the day on
which the query is made), whichever occurs first."
required by law, Shooter's Choice initiated a background
check of Roof through the NICS. (Id. ¶ 24.) The
Government admits that, because of Roofs recent arrest for
unlawful possession of a controlled substance (erroneously
listed in the NICS as a felony drug arrest (Dkt. No.
1 ¶ 17)), NICS should have issued a "Denied"
response to Shooter's Choice, preventing the sale of a
gun to Roof. (See Dkt. No. 1-1 (FBI Director James
Comey confessing error).) Instead, the FBI, baffled by the
fact that a city might incorporate land in multiple counties,
failed to prevent the sale. (See id.)
the assigned NICS examiner noted Roof was listed as having
been arrested on a felony drug charge, but for some reason,
the Lexington County Sheriffs office was listed as the
arresting agency, not the City of Columbia Police Department.
(Id.) The examiner contacted the Lexington County
Sheriffs Office and she was told to check with the City of
Columbia Police Department. (Id.) She never did
that. Instead, she decided to contact the City of West
Columbia Police Department, which of course had no record of
Roof s arrest. (Id.) At that point, the FBI
apparently gave up its attempt to learn about Roofs
purportedly felonious drug arrest, and it took no action to
prevent Roof from being allowed to purchase a handgun.
(See id.; Dkt. No. 12-1 at 22); see also
Trial Transcript 670:21-672:1, United States v.
Roof, 15-472-RMG (D.S.C. Dec. 12, 2016).
cast aside the case, leaving it in a "Delayed"
status, and so, on April 16, 2015, Roof was permitted to
purchase his Glock. (Dkt. No. 1-1.) Two months later, on June
17, 2015, he used it to murder nine parishioners, and to
attempt to murder three others, in an attack on Mother
Emanuel AME Church in Charleston, South Carolina. (Dkt. No. 1
¶¶ 34-35.) After the attack, the FBI researched
Roofs eligibility to purchase a firearm with more ardor
(see Dkt. No. 1-1) and, on June 29, 2015, the NICS
instructed Shooter's Choice not to sell the Glock to
Roof. Trial Transcript 681:19-685:5, United States v.
Roof, 15-472-RMG (D.S.C. Dec. 12, 2016). Roof was
subsequently convicted on many capital charges and sentenced
to death. Judgment, United States v. Roof,
15-472-RMG (D.S.C. Jan. 23, 2015). Survivors of the attack
and family of the slain have brought suits alleging the
failure to refuse permission for Roof to purchase the murder
weapon was a violation of non-discretionary duties imposed by
the Brady Handgun Violence Prevention Act and associated
regulations, actionable as negligence under the Federal Tort
Claims Act ("FTCA"). (Dkt. No. 1 ¶ 32.)
February 9, 2017, the Court consolidated the actions for
pretrial purposes, with this action designated as the master
docket. (Dkt. No. 22.) The Government moves to dismiss for
lack of subject-matter jurisdiction, arguing that the FTCA
bars Plaintiffs claims under the discretionary-function
and misrepresentation exceptions and that Plaintiffs'
claims are not actionable under South Carolina law. (Dkt. No.
12.) Plaintiffs separately move for jurisdictional discovery.
(Dkt. No. 16.)
motion to dismiss for lack of subject-matter jurisdiction
filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure challenges the jurisdiction of a court to
adjudicate the matter before it. Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006). A challenge to
subject-matter jurisdiction may contend either 1) that the
complaint fails to allege facts sufficient to establish
subject matter jurisdiction or 2) "that the
jurisdictional allegations of the complaint [are] not
true." Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982). Where the sufficiency of the jurisdictional
allegations in the complaint is challenged facially,
"the facts alleged in the complaint are taken as true,
and the motion must be denied if the complaint alleges
sufficient facts to invoke subject matter jurisdiction."
Kerns v. United States, 585 F.3d 187, 192 (2009).
If, however the defendant contends "that the
jurisdictional allegations of the complaint [are] not true,
" the plaintiff bears the burden to prove facts
establishing jurisdiction and the district court may
"decide disputed issues of fact." Id. In
that case, because the plaintiffs allegations are not
presumed true, "the court should resolve the relevant
factual disputes only after appropriate discovery, "
24th Senatorial Dist. Republican Comm. v. Alcorn,
820 F.3d 624, 629 (4th Cir. 2016). And where "the
jurisdictional facts and the facts central to a tort claim
are inextricably intertwined, " so that a challenge to
the truth of the jurisdictional facts indirectly challenges
the plaintiffs claims on the merits, "the trial court
should ordinarily assume jurisdiction and proceed to the
intertwined merits issues." terras, 585 F.3 at 193.
United States is immune from suit without the consent of
Congress. Block v. North Dakota ex rel. Bd. of Univ.
& Sch. Lands, 461 U.S. 273, 287 (1983). The FTCA
authorizes lawsuits against the United States for wrongful
acts or omissions of federal employees acting within the
scope of their office in circumstances where a private person
would be liable for similar claims in the jurisdiction where
the claim arose. 28 U.S.C. § 1346(b). Under the FTCA,
the United States cannot be held liable for actions that fall
within its discretionary function, an exception based on the
premise that the judiciary should not "second
guess" policy choices of the Executive Branch through
private litigation. 28 U.S.C. § 2680(a); Berkovitz
ex rel. Berkovitz v. United States, 486 U.S. 531, 536-37
(1988). Nor may the United States be held liable for claims
arising from misrepresentation-whether negligent or
intentional. 28 U.S.C. § 2680(h); Block v.
Neal, 460 U.S. 289, 296 (1983). And governmental
negligence in the enforcement of federal regulations is
actionable under the FTCA only if "the alleged breach of
duty is tortious under state law, " or if "the
Government had breached a duty imposed by federal law that is
similar or analogous to a duty imposed by state law."
Fla. Auto Auction of Orlando, Inc. v. United States,
74 F.3d 498, 502 (4th Cir. 1996) (internal quotation marks
and citation omitted).
Government moves to dismiss, arguing each of those
restrictions-the discretionary-function exception, the
misrepresentation exception, and the lack of a duty to
Plaintiffs under state law-deprive the Court lacks
subject-matter jurisdiction over Plaintiffs' claims. For
the reasons set forth below, the Court orders jurisdictional
discovery regarding the applicability of the
discretionary-function exception, to be completed by June 1,
2017, and denies the motion to dismiss as to the
discretionary-function exception without prejudice to the
Government's ability to renew its motion after discovery.
The Court also denies the motion to dismiss without prejudice
regarding a lack of a duty to Plaintiffs under theories of
negligent creation of risk and negligence per se.
The Court denies with prejudice the Government's motion
to dismiss as to the misrepresentation exception.