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Sanders v. United States

United States District Court, D. South Carolina, Charleston Division

March 23, 2017

Felicia Sanders, individually and as legal custodian for KM, a minor, Plaintiff,
United States of America, Defendant.


          Richard Mask Geigel United States District Court Judge.

         This 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.

         I. Background

         On 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." Id.

         As 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.)[1]

         Specifically, 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).

         The FBI 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.)

         On 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[2] 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.)

         II. Legal Standard

         A 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.

         III. Discussion

         The 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).

         The 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.

         A. ...

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