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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
JENNIFER PINCKNEY,
Plaintiff,
v.
THE UNITED STATES OF AMERICA,
Defendant.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNITED
STATES’ MOTION TO DISMISS
I.

NATURE OF THE CASE
Plaintiff, Jennifer Pinckney, brought this action against the United States alleging

jurisdiction under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671-2680.
Plaintiff alleges that she was at the Emanuel African Methodist Episcopal (“AME”) Church in
Charleston, South Carolina, on June 17, 2015, witnessed the tragic shooting of her husband,
Reverend Clementa Pinckney, and eight others, and was herself threatened with imminent death.
Claiming that employees of the Federal Bureau of Investigation (“FBI”) negligently failed to
prevent Dylann Roof’s purchase of the gun he used to kill his victims at the Emanuel AME
Church, plaintiff seeks an award of damages against the United States for personal injuries,
emotional distress, and loss of consortium.
The United States will demonstrate herein that the Court lacks subject-matter jurisdiction
because plaintiff’s claims fall within the FTCA’s discretionary-function and misrepresentation
exceptions, 28 U.S.C. § 2680(a), (h). The United States will further demonstrate that plaintiff’s

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claims fall outside the limited waiver of sovereign immunity contained in the FTCA because
they are not actionable under South Carolina law. See 28 U.S.C. §§ 1346(b), 2674.
Accordingly, the Court should dismiss this action.
II.

STANDARD OF REVIEW
A defendant may move to dismiss the action for lack of subject-matter jurisdiction. Fed.

R. Civ. P. 12(b)(1). “Federal courts are courts of limited subject matter jurisdiction, and as such
there is no presumption that the court has jurisdiction.” Pinkley, Inc. v. City of Frederick, Md.,
191 F.3d 394, 399 (4th Cir. 1999). The plaintiff bears the burden of proof on questions of
subject-matter jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from
suit. Sovereign immunity is jurisdictional in nature. Indeed, the ‘terms of [the United States’]
consent to be sued in any court define that court’s jurisdiction to entertain the suit.’” F.D.I.C. v.
Meyer, 510 U.S. 471, 475 (1994) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941))
(citations omitted, alteration in original).
“[A] defendant may challenge subject matter jurisdiction in one of two ways.” Kerns v.
United States, 585 F.3d 187, 192 (4th Cir. 2009) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir.1982)). “First, the defendant may contend that a complaint simply fails to allege facts upon
which subject matter jurisdiction can be based.” Id. (citing Adams, 697 F.2d at 1219).
Alternatively, the defendant may contend “that the jurisdictional allegations of the complaint
were not true.” Adams, 697 F.2d at 1219. This motion presents the former challenge, a facial
attack, to the Court’s subject-matter jurisdiction. Alternatively, this motion seeks dismissal of
the action for failure to state a claim within the FTCA’s limited waiver of sovereign immunity.
If the defendant attacks a complaint facially for lack of subject-matter jurisdiction, “all

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the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded
the same procedural protection as he would receive under a Rule 12(b)(6) consideration.”
Adams, 697 F.2d at 1219. Accordingly, “all alleged facts are taken as true and the motion will be
denied if the complaint alleges facts that, if proven, would be sufficient to sustain jurisdiction.”
In re Seizure of 2007 GMC Sierra SLE Truck, 32 F. Supp. 3d 710, 715 (D. S.C. 2014) (citation
omitted).
Conversely, the Court should grant the motion if “well-pleaded facts do not permit the
court to infer more than the mere possibility of [subject-matter jurisdiction].” Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009) (citation omitted). Under both Rule 12(b)(1) and 12(b)(6), “[a] court
decides whether [the pleading] standard is met by separating the legal conclusions from the
factual allegations, assuming the truth of only the factual allegations, and then determining
whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the
legal remedy sought. A Society Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011).
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STATEMENT OF FACTS 1/
On February 28, 2015, during questioning by a police officer of the City of Columbia

Police Department, the officer found in Dylann Roof’s possession a bottle of Suboxone, which is
a Schedule III controlled substance as defined in 21 U.S.C. § 802. Compl. ¶¶ 8-9, ECF No. 1.
Dylann Roof admitted to the arresting officer that he (Roof) was in possession of a controlled
substance without a prescription. Id. ¶ 10.
Based on his admitted possession of Suboxone without a prescription, the police officer
arrested Dylann Roof, charging him with Possession of a Schedule III Drug in violation of S.C.
Code Ann. § 44-53-370(d)(2) (2015). 2/ Compl. ¶ 11. The City of Columbia Police Department
created an incident report for the arrest that noted that Roof admitted to the arresting officer his

1/

For purposes of this motion only, the United States assumes the truth of the complaint’s
well-pleaded factual allegations. The United States does not accept the truth of allegations in the
complaint that “‘contradict matters properly subject to judicial notice,’” Veney v. Wyche, 293
F.3d 726, 730 (4th Cir. 2002) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001)), or that contradict the facts set forth in the exhibit attached to and incorporated
into the complaint. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016)
(“‘In the event of conflict between the bare allegations of the complaint and any exhibit attached
[thereto] . . . , the exhibit prevails.’” (quoting Fayetteville Inv’rs v. Commercial Builders, Inc.,
936 F.2d 1462, 1465 (4th Cir.1991)). In addition, in ruling on a motion to dismiss a court may
consider the contents of a document even if the document is not attached to the complaint where
it is integral to and explicitly relied on in the complaint. Phillips v. LCI Int’l, Inc., 190 F.3d 609,
618 (4th Cir. 1999); but see Goines, 822 F.3d at 167 (“[W]here the plaintiff attaches or
incorporates a document for purposes other than the truthfulness of the document, it is
inappropriate to treat the contents of the document as true.”). Finally, no assumption of
truthfulness attaches to the bare legal conclusions asserted in the complaint. See King v.
Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (“Bare legal conclusions ‘are not entitled to the
assumption of truth’ and are insufficient to state a claim.”) (quoting Ashcroft v. Iqbal, 556 U.S. at
679)).
2/

South Carolina amended Section 44-53-370 effective April 21, 2016. The United States
refers herein to the statute as it existed when the Columbia Police Department arrested Roof for
possession on February 28, 2015. Subdivision (d)(2) of that statute provided, inter alia, that
possession of a controlled substance is “a misdemeanor” and carries a sentence of imprisonment
for “not more than six months or [a fine] not more than one thousand dollars, or both.” Id.
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possession of a controlled substance without a prescription. Id. ¶ 12. 3/
On April 11, 2015, approximately six weeks later, Dylann Roof attempted to purchase a
handgun from Shooter’s Choice, a federally licensed firearms dealer located in West Columbia,
South Carolina. Id. ¶ 18.
On April 11, 2015, Shooter’s Choice initiated a background check of Dylann Roof
through the National Instant Criminal Background Check System (“NICS”). Id. ¶ 24. The FBI
then “undertook to conduct a background check on Roof through NICS.” Id. ¶ 25. The FBI,
however, did not deny the sale of a firearm before Shooter’s Choice transferred the weapon to
Roof. Id. ¶ 31; see also Compl. Exhibit 1 (statement of FBI Director James Comey regarding

3/

Plaintiff further alleges that although Dylann Roof actually was charged with a
misdemeanor, the incident report created by the City of Columbia Police Department mistakenly
indicated that Roof had been indicted for a felony crime punishable by imprisonment for a term
of imprisonment exceeding one year. Compl. ¶ 17. This allegation lacks any basis in fact, and is
refuted by the incident report itself, which contains no indication that Roof was under indictment
at the time it was prepared, let alone that he had been indicted for a felony crime punishable by
imprisonment for a term of imprisonment exceeding one year.
A copy of the City of Columbia Police Department’s incident report is attached hereto as
Exhibit A. The Court may take judicial notice of this report because it is a matter of public
record, the authenticity of which cannot reasonably be questioned. Fed. R. Evid. 201(b); Hall v.
Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004); Cobin v. Hearst-Argyle Television, Inc., 561 F.
Supp. 2d. 546, 550-51 (D. S.C. 2008) (court could take judicial notice of police report, which
was not attached to pleading, as a matter of public record).
Further, the public records of the Court of General Sessions for Lexington County, South
Carolina, conclusively show that although a grand jury later indicted Dylann Roof for
misdemeanor possession of a Schedule III substance in violation of S.C. CODE ANN. 44-53370(d)(2) (2015), it did not return the indictment against Roof until July 13, 2015, almost a
month after the shooting that gave rise to this litigation.
A certified copy of the complete record in the case of State v. Dylann Storm Roof, Dkt.
No. 2015GS3201700 (S.C. Ct. Gen. Sess. Lexington Cty.), is attached hereto as Exhibit B. This
record is also subject to judicial notice. See Green v. Wells Fargo Bank N.A., 927 F. Supp. 2d
244, 246 n.2 (D. Md. 2013) (district court may take judicial notice of state court proceedings and
other public records).
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Dylann Roof gun purchase) (“By Thursday, April 16, the case was still listed as ‘status pending,’
so the gun dealer exercised its lawful discretion and transferred the firearm to Dylann Roof.”),
ECF No. 1-1.
On June 17, 2015, Roof used the handgun he had purchased from Shooter’s Choice when
he walked into the Emanuel AME Church in Charleston, South Carolina, and shot to death nine
people, including Rev. Pinckney. Id. ¶¶ 34-35.
In her complaint, plaintiff asserts that by failing to deny the sale of the firearm to Dylann
Roof, the United States violated mandatory, non-discretionary duties supposedly imposed on it
by the Brady Handgun Violence Prevention Act, PUB. L. NO. 103-159 (1993), 107 Stat. 1536
(“Brady Act”), 4/ and regulations contained in 28 C.F.R. Part 25. See id., at ¶ 32.
Plaintiff’s assertion is incorrect, and as demonstrated herein the United States’ failure to
deny the sale of the firearm to Dylann Roof violated no mandatory, non-discretionary duties
imposed on the United States by any statute, including the Brady Act, or any regulation,
including those contained in 28 C.F.R. Part 25.
To the contrary, while the Brady Act authorizes the FBI to temporarily freeze firearms
sales for three business days while it researches whether state or federal law prohibits a particular
buyer from possessing a firearm, the FBI has no authority to prevent a sale if, after those three
business days have elapsed, it has not yet found definitive information demonstrating that the
prospective purchaser’s receipt of a firearm would violate federal or state law. That is what

4/

The United States notes that plaintiff miscites the Brady Act as 18 U.S.C. § 922(d). Parts
of the Brady Act are codified at 18 U.S.C. § 922(t) and (s) and 18 U.S.C. § 924(a)(5). Although
both 18 U.S.C. § 922(d), which was enacted as part of the Gun Control Act of 1968, and some of
the provisions of the Brady Act are codified together in section 922 of title 18, United States
Code, § 922(d) is not itself part of the Brady Act.
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occurred with respect to the sale of the firearm at issue in this case. See Compl. Exhibit 1
(statement of FBI Director James Comey). 5/
IV.

STATUTORY AND REGULATORY BACKGROUND
“Federal law has for over 40 years regulated sales by licensed firearms dealers,

principally to prevent guns from falling into the wrong hands.” Abramski v. United States, 573
U.S. ___, 134 S. Ct. 2259, 2263 (2014), citing Gun Control Act of 1968, 18 U.S.C. § 921 et seq.
Under 18 U.S.C. § 922(g), “certain classes of people . . . may not purchase or possess any
firearm.” Id. “And to ensure that they do not, [18 U.S.C.] § 922(d) forbids a licensed dealer
from selling a gun to anyone it knows, or has reasonable cause to believe, is such a prohibited
buyer.” Id.; see also Huddleston v. United States, 415 U.S. 814, 825 (1974) (“[T]he focus of the
federal scheme is the federally licensed firearms dealer, at least insofar as the Act directly

5/

As explained in Director Comey’s statement, a copy of which plaintiff attached to her
complaint and references therein, the FBI’s initial check of Roof’s criminal history record
revealed that Roof had been arrested for what his rap sheet listed as a felony drug charge. Id. at
1. The mere fact that an individual had been arrested for a felony drug charge would not itself
disqualify the individual from purchasing a firearm. Id. As Director Comey’s statement
explained, further research was needed to determine whether information existed demonstrating
that federal or state law prohibited Roof from purchasing a firearm. Id. Director Comey’s
statement noted that the FBI examiner to whom Roof’s case was assigned followed the FBI’s
protocols, but, for reasons the statement goes on to discuss, failed to contact the City of
Columbia Police Department to request a copy of its incident report, and thus remained unaware
that Roof had admitted to being in possession of a Schedule III controlled substance without a
prescription. Id. at 1-2. The examiner’s failure to request a copy of the incident report from the
Columbia Police Department was, according to Mr. Comey’s statement, largely attributable to
two factors: (1) Roof’s rap sheet misidentified the Lexington County Sheriff’s Office as the
arresting agency, and (2) unbeknownst to the examiner, the place where Roof was arrested (i.e.,
the Columbiana Mall), although located in Lexington County, was situated in a small area of the
county that was within the municipal limits of the City of Columbia. Id. Mr. Comey’s statement
further noted that the South Carolina contact sheet that FBI examiners used in processing NICS
background checks did not account for this small piece of the City of Columbia (the remainder of
which is located in adjacent Richland County), and therefore did not include the Columbia Police
Department among the local law enforcement agencies to be contacted when obtaining
information about arrests effected in Lexington County. Id.
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controls access to weapons by users.”).
“The statute establishes a detailed scheme to enable the dealer to verify, at the point of
sale, whether a potential buyer may lawfully buy a gun.” Abramski, 134 S.Ct. at 2263. Under 18
U.S.C. § 922(c), the would-be purchaser must, except in certain specified circumstances not
applicable here, appear in person on the dealer’s business premises. Abramski, 134 S. Ct. at
2263. “Before completing the sale, the dealer must ‘verif[y] the identity of the transferee by
examining a valid identification document’ bearing a photograph.” Id. (quoting 18 U.S.C. §
922(t)(1)(C)) (alteration by Court). “In addition, the dealer must procure the buyer’s ‘name, age,
and place of residence.” Id. (quoting 18 U.S.C. § 922(b)(5)). “And finally, the dealer must . . .
submit that background information to the National Instant Background Check System (NICS) to
determine whether the potential purchaser is for any reason disqualified from owning a firearm.”
Id. (citing 18 U.S.C. § 922(t)(1)(A)-(B)).
“To implement [these and other] statutory requirements, the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF) developed Form 4473 for gun sales.” Id.; see also Wilson v.
Lynch, ___ F.3d ___, No. 14-15700, 2016 WL 4537376, at *2 (9th Cir. Aug. 31, 2016) (“The
ATF has . . . developed Form 4473, which confirms eligibility for gun ownership under § 922.”);
Shawano Gun & Loan, LLC v. Hughes, 650 F.3d 1070, 1073 (7th Cir. 2011) (“Firearms dealers
are required to ensure that a Firearms Transaction Record, ATF Form 4473, is completed
properly to record identifying information about firearms purchasers, to prohibit transfers to
persons prohibited from possessing firearms, and to facilitate the tracing of firearms involved in
crimes.”); 27 C.F.R. § 478.124(a) (“A . . . licensed dealer shall not sell . . . any firearm to any
person . . . unless the licensee records the transaction on a firearms transaction record, Form
4473 . . . .”).

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“The form . . . lists all the factors disqualifying a person from gun ownership, and asks
the would-be buyer whether any of them apply. . . .” Abramski, 134 S. Ct. at 2264; see also
Wilson, 2016 WL 4537376, at *2 (citing Firearms Transaction Record, Part I – Over-theCounter, ATF Form 4473, https://www.atf.gov/file/61446/download (last visited Sept. 29,
2016) 6/ (“ATF Form 4473”)); 27 C.F.R. § 478.124(c)(1) (requiring that, before transferring a
firearm, licensed dealer obtain from transferee ATF Form 4473 showing “certification by the
transferee that the transferee is not prohibited by the Act from . . . receiving a firearm which has
been shipped or transported in interstate or foreign commerce”).
Even if the prospective buyer certifies that he or she is not prohibited by the Gun Control
Act from receiving a firearm, the licensed dealer still is prohibited from selling, delivering, or
transferring the firearm to the prospective buyer, unless:
(1) Before the completion of the transfer, the licensee has contacted NICS;
(2)(i) NICS informs the licensee that it has no information that receipt of
the firearm by the transferee would be in violation of Federal or State law and
provides the licensee with a unique identification number; or
(ii) Three business days (meaning days on which State offices are open)
have elapsed from the date the licensee contacted NICS and NICS has not notified
the licensee that receipt of the firearm by the transferee would be in violation of
law; and
(3) The licensee verifies the identity of the transferee by examining the
identification document presented in accordance with the provisions of §
478.124(c).
27 C.F.R. § 478.102(a)(1)-(3).
The Brady Act required that, no later than November 30, 1998, the Attorney General

6/

A copy of ATF Form 4473 downloaded from the cited URL is attached hereto as Exhibit
C. The form is subject to judicial notice, “as it is a matter of public record.” Enos v. Holder, No.
2:10–CV–2911–JAM–EFB, 2011 WL 2681249, at *2 (E.D. Cal. July 8, 2011) (taking judicial
notice of ATF Form 4473); see also Gustavson v. Wrigley Sales Co., 961 F.Supp.2d 1100, 1113
n.1 (N.D. Cal. 2013) (“The Court may take judicial notice of materials available on government
agency websites.”).
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establish “a national instant criminal background check system that any licensee may contact, by
telephone or by other electronic . . . , for information, to be supplied immediately, on whether
receipt of a firearm by a prospective transferee would violate section 922 of title 18, United
States Code, or State law.” PUB. LAW NO. 103-159 § 103(b), 107 Stat. at 1541.
“A computerized system operated by the FBI, the NICS searches for disqualifying
information in three separate databases: (1) the ‘NICS Index,’ containing records on persons
known to be disqualified from possessing firearms under federal law; (2) the ‘National Crime
Information Center [NCIC],’ containing records on protective orders, deported felons, and
fugitives from justice; and (3) the ‘Interstate Identification Index [III],’ containing criminal
history records.” Nat’l Rifle Ass’n v. Reno, 216 F.3d 122, 125 (D.C. Cir. 2000); see also Notice,
AG Order 1882-94, 59 Fed. Reg. 28,423, 28,423 (June 1, 1994) (“The NICS will build upon
existing information systems. One of these systems is the National Crime Information Center
(NCIC) Interstate Identification Index, which includes state as well as federal criminal history
records.”).
In those states like South Carolina which have not agreed to serve as NICS points of
contact (“POCs”), federal firearms licensees (“FFLs”) initiate background checks of prospective
buyers by contacting the NICS Operations Center, “the unit of the FBI that receives telephone or
electronic inquiries from FFLs, makes a determination based upon available information as to
whether the receipt or transfer of a firearm would be in violation of Federal or state law,
researches criminal history records, tracks and finalizes appeals, and conducts audits of system
use.” AG Order No. 2186-98, National Instant Criminal Background Check System Regulation,
63 Fed. Reg. 58,303, 58,308 (Oct. 30, 1998); see also Proposed Rule, 63 Fed. Reg. 30,430,
30,431 (June 4, 1998) (“In these non-POC states, the NICS Operations Center will perform the

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NICS background check, analyze any matching records, and provide a response back to the
FFL.”). 7/
Based on a search of the relevant databases, the Brady Act regulations authorize NICS to
provide the FFL with one of three responses:
(A) “Proceed” response, if no disqualifying information was found in the
NICS Index, NCIC, or III.
(B) “Delayed” response, if the NICS search finds a record that requires
more research to determine whether the prospective transferee is disqualified from
possessing a firearm by Federal or state law. A “Delayed” response to the FFL
indicates that the firearm transfer should not proceed pending receipt of a followup “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 . . . .
(C) “Denied” response, when at least one matching record is found in
either the NICS Index, NCIC, or III that provides information demonstrating that
receipt of a firearm by the prospective transferee would violate 18 U.S.C. 922 or
state law. . . .
28 C.F.R. § 25.6(c)(1)(iv)(A)-(C); see also 28 C.F.R. § 25.2 (defining terms “Proceed,”
“Delayed,” and “Denied”).
As explained in the preamble to the final rule issued by the Attorney General on October
30, 1998:
The definition of the term “Proceed” was modified in the final rule to clarify that
it means that information available to the system at the time of the response did
not demonstrate that transfer of the firearm would violate Federal or state law and
that, notwithstanding a “Proceed” response from the NICS, an FFL may not
lawfully transfer a firearm if he or she knows or has reasonable cause to believe
that the prospective transferee is prohibited from receiving or possessing firearms,
or is otherwise prohibited from transferring the firearm under applicable Federal
or state law.

7/

A description of how FFLs initiate NICS background checks in non-POC states is
available on the FBI’s website. About NICS, https://www.fbi.gov/services/cjis/nics/about-nics
(last visited Oct, 11, 2016). A copy of this webpage, downloaded from the cited URL, is
attached hereto as Exhibit D.
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63 Fed. Reg. at 58,306. 8/ As for “Delayed” responses, the final rule’s preamble noted:
Some comments . . . objected to the use of a NICS “Delayed” response, arguing
that the Brady Act only provides for approval and denial responses. We note that
the “Delayed” response is merely a way of communicating to the FFL that the
system requires additional time to research and evaluate whether the prospective
transferee is disqualified from receiving a firearm. The definition of the
“Delayed” response in the final rule was revised to reflect this and the fact that a
“Delayed” response indicates that it would be unlawful to transfer the firearm
pending receipt of a follow-up “Proceed” response from the NICS or the
expiration of three business days, whichever occurs first. The law does not
prohibit the system from making such a response.
Id. at 58,305. 9/ Lastly, with regard to “Denied” responses, the final rule’s preamble further
noted:
The proposed rule provided that a denial by the NICS of a firearm transfer would
be based upon one or more matching records that provide reason to believe that
receipt of a firearm by a prospective transferee would violate 18 U.S.C. 922 or
state law. The final rule changes the terminology relating to NICS denials to
“information demonstrating” rather than “reason to believe” in order to conform
the language of the regulation more closely to the language relating to denials in
the Brady Act.

8/

Consistent with the regulations, the instructions printed on ATF Form 4473 contain the
following warning to FFLs:
WARNING: Any seller who transfers a firearm to any person they know or have
reasonable cause to believe is prohibited from receiving or possessing a firearm
violates the law, even if the seller has complied with the background check
requirements of the Brady law.
AFT Form 4473.
9/

The definition of the term “Delayed” as revised in the final rule published on October 30,
1998, provided as follows:
Delayed means that more research is required prior to a NICS “Proceed” or
“Denied” response. A “Delayed” response to the FFL indicates that it would be
unlawful to transfer the firearm until receipt of a follow-up “Proceed” response
from the NICS or the expiration of three business days, whichever occurs first.
63 Fed. Reg. at 58,307.
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Id. at 58,306.
Under these regulations, FBI examiners performing background checks have no choice
but to issue a “Delayed” response when a record is found which, because it contains potentially
prohibiting information, requires more research before either a “Proceed” or “Denied” response
can be issued; and further, before a “Denied” response can be given to the FFL, definitive
information must be found which not only provides “reason to believe,” but in fact
“demonstrat[es],” that the prospective purchaser’s receipt of a firearm “would violate” applicable
Federal or state law. See 28 C.F.R. §§ 25.2 and 25.6(c)(iv)(C).
Amendments to the regulations adopted in 2004 confirm this reading; these same
amendments also expressly recognized that in some cases the FBI will be unable to make a final
determination as to whether federal or state law prohibits a prospective buyer from receiving a
firearm within three business days after the FFL initiates a NICS background check of the
prospective buyer. See AG Order 2727-2004, National Criminal Background Check System, 69
Fed. Reg. 43,892 (July 23, 2004). As explained in the preamble to the final rule adopting these
amendments:
The NICS cannot in some cases reach a final determination within three business
days because relevant information is missing from the automated record system
and must be obtained from other sources. As discussed below, the final rule
defines these cases as “open” responses and allows the NICS to retain information
about them until a “proceed” determination is reached or for not more than 90
days, so that if records are returned to the NICS within that time showing that the
transfer should have been denied, the case can be referred for firearm retrieval.
Id. at 43,893. The final rule’s preamble goes on to note:
[Under the amended regulations] the FBI will . . . continue to be able to retain for
up to 90 days (as it does under current law) information in “open”
transactions―i.e., where the NICS has not yet provided a “proceed” or “deny”
response because it has not received definitive information about the status of a
prospective gun buyer’s record (e.g., a missing arrest disposition). If prohibiting
information is received within 90 days, continued retention of such records will
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allow the FBI to change an open transaction to a “denied” response and refer the
case to the ATF for a firearm retrieval if the firearm has been transferred by the
FFL (as allowed under the Brady Act when the FFL has not received within three
business days a response on whether the transaction is lawful).
Id. at 43,894. 10/
Thus, in summarizing how the NICS background check system works, the Department of
Justice’s Office of Legal Counsel (“OLC”) has noted:
Upon receiving an inquiry, the NICS checks certain databases and in the ordinary
course immediately responds with one of two determinations: “proceed,” which
indicates that the transfer is allowed, or “denied,” which indicates that the transfer
is not allowed. See 28 C.F.R. §§ 25.2 & 25.6(c)(1) (2006); see also National
Instant Criminal Background Check System Regulation, 69 Fed. Reg. 43,892,
10/

As amended, the new definition of the term “Delayed” provides:
Delayed means the response given to the FFL indicating that the transaction is in
an “Open” status and that more research is required prior to a NICS “Proceed” or
“Denied” response. A “Delayed” response to the FFL indicates that it would be
unlawful to transfer the firearm until receipt of a follow-up “Proceed” response
from the NICS or the expiration of three business days, whichever occurs first.

69 Fed. Reg. at 43,900. The revised regulations also added the following definition of the term
“Open:”
Open means those non-canceled transactions where the FFL has not been notified
of the final determination. In cases of “open” responses, the NICS continues
researching potentially prohibiting records regarding the transferee and, if
definitive information is obtained, communicates to the FFL the final
determination that the check resulted in a proceed or a deny. An “open” response
does not prohibit an FFL from transferring a firearm after three business days
have elapsed since the FFL provided to the system the identifying information
about the proposed transferee.
Id. Finally, the provisions of 28 C.F.R. §§ 25.9 and 25.10 were amended to facilitate (1) the
retrieval of firearms in cases in which the FFL exercised its option to complete the sale after
three business days elapsed since the date the FFL initiated the background check, and (2) the
relief of prospective purchasers in cases in which the FFL elects not to complete sales after the
three-business-day period elapses. 69 Fed. Reg. at 43,900. As amended, 28 C.F.R. §
25.9(b)(1)(ii) now expressly allows the retention of records relating to “Open” transactions until
NICS makes a final determination, but not for more than 90 days. Section 25.10 was amended
by adding a new subsection (g), which allows an individual to authorize the FBI to maintain a
Voluntary Appeal File for the purpose of preventing “extended delay” of firearm transfers.
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43,897 (July 23, 2004) (discussing high rate of immediate or nearly immediate
responses). If the NICS is unable to determine immediately whether or not the
transaction may proceed, it issues a “delayed” response, and the inquiry remains
“open.” See 28 C.F.R. §§ 25.2 & 25.6(c)(1). Such a response temporarily
prohibits the transfer and indicates that the NICS has found a “record that requires
more research to determine whether the prospective transferee is disqualified from
possessing a firearm.” Id. § 25.6(c)(1)(iv)(B). The NICS “continues researching
potentially prohibiting records” in an effort to obtain “definitive information.” Id.
§ 25.2 (defining “Open”). If NICS is unable to issue a denial within three
business days, the restriction on transfer by the licensee expires. 18 U.S.C. §
922(t)(1)(B)(ii). The NICS may, however, continue to investigate the transferee,
for up to 90 days under current regulations. See 28 C.F.R. § 25.9(b)(1)(ii) (2006)
(providing for destroying audit-log records regarding an open inquiry within 90
days of the inquiry). If it subsequently determines that the receipt of the firearm
was unlawful, the NICS issues a “delayed denial.” In such a case, the FBI will
notify the ATF, see id. § 25.9(b)(2)(i), which may take action against the
transferee.
When a Prior Conviction Qualifies as a “Misdemeanor Crime of Domestic Violence,” 31 Op.
O.L.C. 123, 136 (2007).
Turning to the standards governing the FBI’s issuance of “denied” responses, OLC went
on to discuss the relevant provisions of the Brady Act:
The Brady Act authorizes the NICS to issue a denial only if it has concluded “that
the receipt of a firearm” by the prospective transferee “would violate” federal or
state law. 18 U.S.C. § 922(t)(1)(B)(ii) (emphasis added); see id. § 922(t)(5)
(addressing licensee’s failure to contact the NICS when NICS “was operating and
information was available to the system demonstrating that receipt would violate”
federal or state law); Brady Act § 103(b) (requiring NICS to provide information
“on whether receipt of a firearm by a prospective transferee would violate”
federal or state law). Alternatively, the NICS must issue a “proceed” if it has
concluded that such receipt “would not violate” federal or state law. 18 U.S.C. §
922(t)(2) (emphasis added). In addition, it may issue a “proceed” in cases in
which it is not authorized to issue a denial (and decides that a “delayed” response
is not warranted), given that in such cases there is no statutory authorization for a
denial. See id. § 922(t)(4) (referring to the issuance by NICS of a “proceed” if
“the information available in the system does not demonstrate that the receipt of a
firearm by such other person would be” unlawful) (emphasis added).
Id. (emphasis added by OLC); see also id. at 138 (citing 18 U.S.C. § 922(t)(5) and concluding
that, to justify denial, “[t]he information that NICS possesses must demonstrate a violation”).

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As for the categories of persons prohibited from receiving a firearm by the Gun Control
Act, only one of those categories was potentially relevant in this case. 11/ Under 18 U.S.C. §
922(g)(3), it is unlawful for any person “who is an unlawful user of or addicted to any controlled
substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))” to
receive a firearm. See Wilson, 2016 WL 4537376, at *4 (“Section 922(g)(3) criminalizes
possession or receipt of a firearm by an unlawful drug user . . . .”); see also id. at *2 (“In
addition, it is unlawful for ‘any person to sell or otherwise dispose of any firearm or ammunition
to any person knowing or having reasonable cause to believe such person . . . is an unlawful user
of . . . any controlled substance.’”) (quoting 18 U.S.C. § 922(d)(3)).
Although 21 U.S.C. § 802 statutorily defines the term “controlled substance,” “[t]he
statute nowhere defines ‘unlawful user.’” United States v. Jackson, 280 F.3d 403, 406 (4th Cir.
2002). Shortly before NICS became operational, however, ATF promulgated a regulation that
defined, among other terms, “unlawful user of . . . any controlled substance.” Definitions for the
Categories of Persons Prohibited from Receiving Firearms, 62 Fed. Reg. 34,634, 34,639 (June
27, 1997); see also id. at 34,634 (“The definitions will facilitate the implementation of the
national instant criminal background check system (NICS) required under the Brady Handgun
Violence Prevention Act.”); 63 Fed. Reg. at 30,431 (“The ATF published a final rule concerning
‘Definitions for Categories of Persons Prohibited From Receiving Firearms’ in the Federal
Register on June 27, 1997 . . . . These regulations became effective August 26, 1997, and shall
apply to the operation and the use of the NICS.”).

11/

Although plaintiff references in her complaint a second category of persons to whom the
Gun Control Act prohibits firearms dealers from selling or transferring a firearm, i.e., those
“under indictment . . . for a crime punishable by imprisonment for a term exceeding one year,”
18 U.S.C. § 922(d)(1), that category is irrelevant to this case because Dylann Roof was not under
indictment when the firearm at issue was transferred to him on April 16, 2015.
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The ATF regulation defines “unlawful user” to include “any person who is a current user
of a controlled substance in a manner other than as prescribed by a licensed physician.” 27
C.F.R. § 478.11 The regulation goes on to provide that in order to be disqualifying, the unlawful
use of a controlled substance must have “occurred recently enough to indicate that the individual
is actively engaged in such conduct.” Id. Finally, the regulation describes evidence from which
an inference of current use of a controlled substance may be drawn. See id. (“An inference of
current use may be drawn from evidence of a recent use or possession that reasonably covers the
present time, e.g., a conviction for use or possession of a controlled substance within the past
year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred
within the past year; or persons found through a drug test to use a controlled substance
unlawfully, provided that the test was administered within the past year.”)
Courts construing the term “unlawful user of . . . any controlled substance” have held that
“there must be some regularity of drug use in addition to contemporaneousness to meet the
statute’s requirements.” United States v. Patterson, 431 F.3d 832, 839 (5th Cir. 2005) (citing
United States v. Augustin, 376 F.3d 135, 139 (3d Cir. 2004) (“[T]o be an unlawful user, one
needed to have engaged in regular use over a period of time proximate to or contemporaneousness [sic] with the possession of the firearm.”)); Jackson, 280 F.3d at 406 (upholding district
court finding that prosecution must establish “a pattern of use and recency of use”); United
States v. Purdy, 264 F.3d 809, 812-13 (9th Cir. 2001) (“[T]o sustain a conviction under §
922(g)(3), the government must prove . . . that the defendant took drugs with regularity, over an
extended period of time, and contemporaneously with his . . . possession of a firearm.”). 12/

12/

In the complaint, Compl. ¶¶ 14-15, plaintiff asserts that due to the documentation of
Roof’s admitted possession of a controlled substance without a prescription, he was an “unlawful
user of or addicted to any controlled substance” to whom a firearm could not lawfully be sold.
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SUMMARY OF ARGUMENT
The Court should dismiss this action for three, independent, reasons. First, the

discretionary function exception to the FTCA bars plaintiff’s claims. The facts, as alleged,
demonstrate that NICS regulations required issuance of a “Delayed” response when Dylann Roof
sought to purchase a handgun based upon the data contained in the NICS databases. The NICS
examiner’s compliance with mandatory provisions of NICS regulations falls squarely within the
discretionary function exception. Additionally, how the NICS system was designed, indexed,
and maintained falls within the discretionary function exception. Finally, courts repeatedly
recognize that the discretionary function exception precludes challenges to investigations, such
as NICS’s investigation of Dylann Roof’s criminal history.
Second, the misrepresentation exception to the FTCA bars plaintiff’s claims. At the core
of all of plaintiff’s claims is an allegation that NICS either failed to communicate information to
Shooter’s Choice or communicated wrong information to Shooter’s Choice. The
misrepresentation exception squarely bars these claims.
Third, plaintiff fails to state a claim that is cognizable under South Carolina law. South
Carolina law does not impose a duty on private individuals to conduct handgun purchase

But see United States v. Augustin, 376 F.3d at 139 (overturning defendant’s conviction for
violating 18 U.S.C. § 922(g)(3) where, although prosecution presented evidence that he smoked
marijuana one day before he was found in possession of firearm, it adduced no evidence he ever
used drugs on any other occasion); United States v. Williams, 216 F. Supp. 2d 568, 576 (E.D. Va.
2002) (granting defendant’s motion for judgment of acquittal on charge that he violated §
922(g)(3) where, although he admitted to being simultaneously in possession of handgun and
half-burned, warm marijuana cigarette, prosecution adduced no evidence of his use of drugs on
any other occasion). This Court need not (and should not) decide whether Roof’s admitted
possession of a Schedule III controlled substance on February 28, 2015, itself established that
Roof was an unlawful user of a controlled substance, or that his receipt of a firearm therefore
would violate 18 U.S.C. § 922(g)(3). The only person who, by receiving a firearm on April 16,
2015, could potentially have violated 18 U.S.C. § 922(g)(3) was Dylann Roof; he is not a party
to this litigation.
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background investigations and plaintiff fails to articulate any state law duty applicable to NICS’s
conduct. Thus, the Court should dismiss the entire action with prejudice.
VI.

ARGUMENT
A.

Plaintiff’s Claims Are Barred by the Discretionary Function Exception.
1.

Overview of 28 U.S.C. § 2680(a).

The FTCA’s waiver of sovereign immunity is subject to several exceptions set forth in 28
U.S.C. § 2680. These exceptions “are designed to protect certain important government
functions and prerogatives from disruption.” Molzof v. United States, 502 U.S. 301, 311 (1992);
see also Richards v. United States, 369 U.S. 1, 13 n.28 (1962). Applicable here is the
discretionary function exception, which bars “[a]ny claim . . . based upon the exercise or
performance or the failure to exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a). 13/
The Supreme Court has enunciated a two-part test for determining whether a claim is
barred by the discretionary function exception. First, courts must determine whether the act
“involv[es] an element of judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322
(1991). Pursuant to this first part, courts look to whether “a federal statute, regulation or policy
specifically prescribes a course of action for an employee to follow[.]” Id. at 322 (quoting
Berkovitz v. United States, 486 U.S. 531, 536 (1988)).
Second, if the conduct involves judgment or choice, courts then look to “whether that
judgment is of the kind that the discretionary function exception was designed to shield.” Id. at

13/

Section 2680(a) also contains another exception which bars “any claim based upon an act
or omission of an employee of the Government, exercising due care, in the execution of a statute
or regulation, whether or not such statute or regulation be valid[.]”
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322-23 (quoting Berkovitz, 486 U.S. at 536). “The basis for the discretionary function exception
was Congress’ desire to ‘prevent judicial second-guessing’ of legislative and administrative
decisions grounded in social, economic, and political policy through the medium of an action in
tort.” Berkovitz, 486 at 536-537 (quoting United States v. Varig Airlines, 467 U.S. 797, 814
(1984)). Thus, the exception protects “governmental actions and decisions based on
considerations of public policy.” Gaubert, 499 U.S. at 323 (citation and internal quotation
marks).
It is immaterial whether government employees actually considered various policy
considerations because “[t]he focus of the inquiry is not on the agent’s subjective intent in
exercising the discretion conferred by statute or regulation, but on the nature of the actions taken
and on whether they are susceptible to policy analysis.” Id. at 325; Baum v. United States, 986
F.2d 716, 721 (4th Cir. 1993) (“[O]ur inquiry here must focus on the inherent, objective nature of
the challenged decision; we find largely irrelevant the presence or absence of evidence that
involved government agents which did or did not engage in a deliberative process before
exercising their judgment.”). Thus, “a reviewing court in the usual case is to look to the nature
of the challenged decision in an objective, or general sense, and ask whether that decision is one
which we would expect inherently to be grounded in considerations of policy.” Suter v. United
States, 441 F.3d 306, 311 (4th Cir. 2006) (quoting Baum, 986 F.2d at 720-721).
“Under the applicable precedents, . . . if a regulation mandates particular conduct, and the
employee obeys the direction, the Government will be protected because the action will be
deemed in furtherance of the policies which led to the promulgation of the regulation.” Gaubert,
499 U.S. at 324 (citing Dalehite v. United States, 346 U.S. 15, 36 (1953)). “If the employee
violates the mandatory regulation, there will be no shelter from liability because there is no room

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for choice and the action will be contrary to policy.” Id. “On the other hand, if a regulation
allows the employee discretion, the very existence of the regulation creates a strong presumption
that a discretionary act authorized by the regulation involves consideration of the same policies
which led to the promulgation of the regulation.” Id..
The discretionary function exception applies even if the government’s conduct was
negligent or an abuse of discretion. Id. at 323; Dalehite, 346 U.S. at 33 (1953) (the discretionary
function exception “applies to policy judgments, even to those constituting abuse of
discretion.”). Indeed, the exception applies “‘even if the discretion has been exercised
erroneously’ and is deemed to have frustrated the relevant policy purpose.” Pornomo v. United
States, 814 F.3d 681, 687-88 (4th Cir. 2016) (quoting Holbrook v. United States, 673 F.3d 341,
350 (4th Cir. 2012)).
When the discretionary function exception applies, courts must dismiss the claim for lack
of subject-matter jurisdiction. Medina v. United States, 259 F.3d 220, 223-24 (4th Cir. 2001). It
is plaintiff’s burden to demonstrate the discretionary function exception is not applicable.
Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995) (“plaintiff bears the burden of
persuasion if subject matter jurisdiction is challenged ... because ‘the party who sues the United
States bears the burden of pointing to ... an unequivocal waiver of immunity’ ”); see also
Gaubert, 499 U.S. at 324-25 (“For a complaint to survive a motion to dismiss, it must allege
facts which would support a finding that the challenged actions are not the kind of conduct that
can be said to be grounded in the policy of the regulatory regime.”).
2.

Decisions to issue a “Delayed” response and not to issue a “Denied”
response are protected by the discretionary function exception.

Plaintiff, in effect, contends that the FBI had a nondiscretionary duty to issue a “Denied”
response because Roof was an “unlawful user of . . . any controlled substance,” 18 U.S.C. §
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922(d)(3). Compl. ¶ 15. However, the FBI had no mandatory duty to issue a “Denied” response
based on the information found through its search of the NICS databases. To the contrary, under
the regulations, a “Denied” response may be issued only “when at least one matching record is
found in either the NICS Index, NCIC, or III that provides information demonstrating that receipt
of a firearm by the prospective transferee would violate 18 U.S.C. 922 or state law.” 28 C.F.R.
§§ 25.6(c)(1)(iv)(C). NICS found no such record. Instead, Roof’s rap sheet indicated only that
the Lexington County Sherriff’s Office arrested him on a felony drug charge. See Compl.,
Exhibit 1. As FBI Director Comey’s statement noted, “[t]his charge alone [was] not enough to
deny proceeding with the transaction.” Id. This record instead “required further inquiry” into
whether the underlying facts of the arrest demonstrated that Mr. Roof was an unlawful user or
addict. Id. Thus, the issuance of the “Delayed” response was the only permitted response under
the circumstances. Id. Plaintiff cannot assail the issuance of the “Delayed” response by citing a
different record―i.e., the City of Columbia Police Department’s incident report―as the basis for
a duty to have issued a “Denied” response, Compl. ¶¶ 26-28, as NICS did not obtain this incident
report until after the shooting at issue in this case had already occurred. Compl. Exhibit 1.
Based on the records NICS found as a result of its search, the Brady Act regulations
mandated the FBI issue a “Delayed” response. See 28 C.F.R. §§ 25.6(c)(1)(iv)(B) (“The FBI
NICS Operations Center . . .will . . . [p]rovide [a] . . . ‘Delayed’ response, if the NICS search
finds a record that requires more research to determine whether the prospective transferee is
disqualified from possessing a firearm by Federal or state law.”). 14/ Where, as here, “a
regulation mandates particular conduct, and the employee obeys the direction, the Government

14/

See also 28 C.F.R. §§ 25.2, 25.6(c)(1)(iv)(B), 25.8(g)(2) (authorizing “delayed”
responses); 63 Fed. Reg.at 58,305 (“The law does not prohibit the system from making [a
delayed] response.”).
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will be protected because the action will be deemed in furtherance of the policies which led to
the promulgation of the regulation.” Gaubert, 499 U.S. at 324. 15/
Further, deciding whether or not to issue a “Denied” response necessarily involves the
exercise of judgment and discretion since such a response may not properly be issued without the
NICS receiving “definitive information,” 28 C.F.R. 25.2, “demonstrating that receipt of a firearm
by the prospective transferee would violate 18 U.S.C. 922 or state law.” Id. § 25.6(c)(1)(iv)(C).
Determining whether particular information should be regarded as “definitive,” and whether it
“demonstrate[es]” that a prospective transferee’s receipt of a firearm “would violate” 18 U.S.C. §
922(g) involves the exercise of judgment on the part of the deciding employee. “When
established governmental policy . . . allows a Government agent to exercise discretion, it must be
presumed that the agent’s acts are grounded in policy when exercising that discretion.” Gaubert,
499 U.S. at 323; see also Dalehite, 346 U.S. at 36 (“Where there is room for policy judgment
and decision there is discretion.”).
3.

The design of NICS and the FBI’s investigation are covered by the
discretionary function exception.

As noted above, the FBI did not find the Columbia Police Department’s incident report,
which plaintiff alleges contains information that would have compelled a “Denied” response, as
a result of its search of the NICS databases or its follow-up investigation into the status of the
charges against Mr. Roof and the circumstances of his arrest. Compl., Exhibit 1. In alleging
negligence in creating, maintaining, indexing, and managing databases for background checks

15/

Indeed, when the regulation calls for a particular response, a challenge to that action is
tantamount to a challenge to the regulation itself. It is well settled that a plaintiff cannot, through
an FTCA action, challenge an agency’s regulations. See Dalehite, 346 U.S. at 42 (“[T]he
[agency’s] regulations . . . could not be attacked by claimants under the [FTCA] by virtue of the
first phrase of § 2680(a).”).
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that resulted in such information not being found, id. ¶ 52, plaintiff launches a broad-based
challenge to the adequacy of the NICS system itself. The discretionary function exception
requires the Court to reject such a challenge. The discretionary function exception also bars
plaintiff’s claim in so far as it challenges the FBI’s investigative efforts following the “Delayed”
response relating to the status of Roof’s drug charge and the circumstances of his arrest.
In Varig Airlines, the Supreme Court heard two consolidated cases, both of which
involved in-flight fires in aircraft that the Federal Aviation Administration (“FAA”) was
allegedly negligent in certifying as meeting minimum safety standards. 467 U.S at 800.
“Congress specifically empowered the Secretary to establish and implement a mechanism for
enforcing compliance with minimum safety standards according to her ‘judgment of the best
course.’” Id. at 816 (quoting Dalehite, 346 U.S. at 34). At the heart of the claim was a challenge
to this regulatory mechanism governing the inspection and certification of aircraft, whereby the
duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and
operator, while the FAA retains the responsibility for policing compliance, which it performs by
conducting a “spot check” of the manufacturer’s work. Id. 816-17. Whatever deficiencies there
may have been in the system devised by the FAA that allowed unsafe aircraft to be put in use, it
could not be challenged in an FTCA action, because an agency’s decisions regarding the best
course to follow, in light of its limited resources, in fulfilling the objectives of the statutory
scheme is “precisely th[e] sort of judicial intervention in policymaking that the discretionary
function exception was designed to prevent.” Id. at 819-20; see also Holbrook, 673 F.3d at 346
(“the FAA’s establishment of procedures to govern the certification process is plainly a protected
exercise of discretion”).
Varig Airlines is controlling here. The Brady Act required the Attorney General to

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establish a national instant background check system, see 18 U.S.C. § 922(t); PUB. L. NO. 103159 § 103 (requiring Attorney General to certify NICS as operational), but left it to the Attorney
General to determine how to implement this congressional directive. The regulatory system
devised by the Attorney General involves searching certain databases containing information
that, to a large extent, the FBI relies on local law enforcement to provide voluntarily. 28 C.F.R.
§ 25.4. As such, the regulations call for NICS to provide a response within a very short timeframe based on state-provided information that may not always be accurate or complete.
Nevertheless, it is the system that the Attorney General, based on the discretion afforded to her
by Congress, determined to be the best way to fulfill the goals and objectives of the applicable
statutory scheme. Thus, whatever alleged deficiencies with NICS that plaintiff believes allowed
critical information to elude the FBI, they cannot be the basis for an FTCA action.
Nor can plaintiff recover on the theory that the FBI was negligent in conducting its
investigation of Mr. Roof while his application was in a “Delayed” status. Neither the Brady Act
itself nor the regulations at 28 C.F.R. Part 25, Subpart A, prescribe a specific and mandatory
course of action for NICS Examiners to follow when conducting such an investigation. Indeed,
plaintiff directs this Court to Director Comey’s statement, wherein he notes that the NICS
examiner did not fail to follow any of the FBI’s protocols while performing the follow-up
research after having found Roof’s rap sheet through a search of the NICS databases. Compl.
Exhibit 1. Moreover, it is well-settled that the manner in which a law enforcement agency
carries out this sort of research or investigation is conduct that the discretionary function
exception was intended to protect. Simply put, “Congress did not intend to provide for judicial
review of the quality of investigative efforts.” Pooler v. United States, 787 F.2d 868, 871 (3d

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Cir.), cert. denied, 479 U.S. 849 (1986). 16/ The discretionary function exception applies to
claims challenging the sufficiency of investigations of all kinds, including those of a criminal,
civil, or even administrative nature. See, e.g., Dichter-Mad v. United States, 709 F.3d 749, 750
(9th Cir. 2013) (barring claims based upon allegedly negligent investigations by SEC that failed
to discover Ponzi scheme). 17/ Notably, the United States District Court for the Western District
of Washington recently held that the discretionary function bars a claim based upon a law
enforcement agency’s allegedly negligent review of an application to import ammunition
pursuant to the Gun Control Act, 18 U.S.C. § 923, on the grounds that reviewing employees
exercise their judgment as to what follow-up investigative measures to pursue. PW Arms, Inc. v.
United States, No. 15-cv-1990-JCC, ___ F. Supp. 3d ___, 2016 WL 2758201, at *5 (W.D. Wash.
May 12, 2016).
A fundamental premise underlying these decisions is that law enforcement agencies’
investigative efforts inherently involve choices regarding priorities, which necessarily turn on
considerations of available resources. 18/ As the Fourth Circuit has held, decisions regarding

16/

See also Gonzalez v. United States, 814 F.3d 1022, 1032 (9th Cir. 2016) (“The
investigation of crime involves policy judgments at the core of the executive branch.”); id. at
1033 n.4. (“Even if the FBI negligently conducted an investigation, that does not detract from the
fact that the manner of conducting an investigation . . . is rife with discretion and policy
judgment and not appropriate for judicial review in a tort action.”).
17/

See also Baer v. United States, 722 F.3d 168, 175 (3rd Cir. 2013) (barring claims based
upon allegedly negligent investigations by SEC that failed to discover Ponzi scheme);
Molchatscky v. United States, 713 F.3d 159, 162 (2d Cir. 2013) (same).
18/

See, e.g., Gonzalez, 814 F.3d at 1032 (noting FBI’s decisions involved consideration of
“the agency’s mission and resources”); Molchatscky, 713 F.3d at 162 (“the SEC’s choices
regarding allocation of agency time and resources being sufficiently grounded in economic,
social and policy considerations.”); Bd. of Trade of City of Chicago v. SEC, 883 F.2d 525, 531
(7th Cir. 1989) (“Agencies ‘take Care that the Laws be faithfully executed’ (Art. II, § 3) by doing
the best they can with the resources Congress allows them. Judges could make allocative
decisions only by taking over the job of planning the agency’s entire agenda, something neither
authorized by statute nor part of their constitutional role.”).
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“how best to allocate resources” are “inherently bound up in considerations of economic and
political policy, and accordingly is precisely the type of governmental decision that Congress
intended to insulate from judicial second guessing through tort actions for damages.” Baum v.
United States, 986 F.2d 716, 724 (4th Cir. 1993). Such considerations are especially present here
given that the follow-up investigation into Mr. Roof by the NICS Examiner, within what is
effectively a three business day time-limit, took place while she “processed the many, many
other firearms purchases in her queue.” Compl. Exhibit 1.
In addition to the fact that law enforcement investigations of all stripes are inherently
policy-laden activities, it also is noteworthy that in performing background checks the FBI also
plays the role of regulator of gun transactions among firearm dealers and private individuals. As
the Supreme Court has made clear, “whatever else the discretionary function exception may
include, it plainly was intended to encompass the discretionary acts of the Government acting in
its role as a regulator of the conduct of private individuals.” Varig Airlines, 467 U.S. at 813-4;
accord Baxley v. United States, 767 F.2d 1095, 1098 (4th Cir. 1985) (the Government “will not
be held liable for torts caused by the negligent conduct of third-parties, even though the
government agency had a statutory mandate to regulate the conduct of the private parties.”).
B.

The Misrepresentation Exception Bars Plaintiff’s Claims.

The FTCA also explicitly preserves the United States’ sovereign immunity with respect
to “claim[s] arising out of . . . misrepresentation.” 28 U.S.C. § 2680(h). “[T]he essence of an
action for misrepresentation, whether negligent or intentional, is the communication of
misinformation on which the recipient relies.” Block v. Neal, 460 U.S. 289, 296 (1983). The
FTCA’s misrepresentation exception “extends to a wide range of communicative activity
(including failures of communication).” Muniz-Rivera v. United States, 326 F.3d 8, 13 (1st Cir.

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2003). As plaintiff premises her claims on the United States’ failure to tell the FFL to deny the
firearm sale to Roof, they must be dismissed for lack of subject-matter jurisdiction.
Though plaintiff characterizes her claims as a failure to properly manage databases and
perform background checks, the FTCA’s exceptions, including the misrepresentation exception,
cannot be evaded through “[a]rtful pleading.” Talbert v. United States, 932 F.2d 1064, 1066-67
(4th Cir. 1991). Rather, “[t]he test in applying the misrepresentation exception is whether the
essence of the claim involves the government’s failure to use due care in obtaining and
communicating information.” JBP Acquisitions, LP v. United States ex rel. FDIC, 224 F.3d
1260, 1264 (11th Cir. 2000) ((emphasis added) (citing Block, 460 U.S. at 296 and United States
v. Neustadt, 366 U.S. 696, 706-07 (1961)); accord, e.g., Russ v. United States, 129 F. Supp. 2d
905, 909 (M.D.N.C. 2001), aff’d, 33 F. App’x 666 (4th Cir. 2002); Mohr v. United States, No.
3:09-cv-1587-JFA, 2009 WL 5216889, at *2 (D. S.C. Dec. 29, 2009).
Here, the essence of plaintiff’s claims are that: (1) the Brady Act obligated the United
States to notify the FFL that it should deny the firearm sale, see Compl. ¶¶ 23, 28, 31; (2) the
FFL relied on the United States to tell it to deny the sale of the handgun to Roof, see id. ¶ 22; and
(3) as a result of the United States’ failure to do so, the FFL sold Roof a handgun, which Roof
used in the Emanuel AME Church shooting, id. ¶¶ 33-35. As the gravamen of plaintiff’s claims
is the government’s failure to communicate a denial to Shooter’s Choice, the misrepresentation
exception squarely bars plaintiff’s claims, and the Court should dismiss the case for lack of
subject-matter jurisdiction.
Courts routinely dismiss tort actions against the United States that—like this one—are
premised on similar failures to obtain and communicate information. See, e.g., Muniz-Rivera,
326 F.3d at 13 (actions based on “failure to communicate precautionary information” are barred

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by the misrepresentation exception); Lawrence v. United States, 340 F.3d 952, 958 (9th Cir.
2003) (action based on “failure to communicate certain information at the exemption hearing”
was barred by the misrepresentation exception); JBP Acquisitions, LP, 224 F.3d at 1266 (“the
Government’s failure to communicate to JBP that it was engaged in condemnation proceedings .
. . is encompassed by the misrepresentation exception.”); Roper Hospital, Inc. v. United States,
869 F. Supp. 362, 365, 368 (D. S.C. 1994) (action based on government’s failure to timely notify
insurer of insured’s termination of employment is barred by the misrepresentation exception);
Mullens v. United States, 785 F. Supp. 216, 219-20 (D. Me. 1992) (action based on government’s
“fail[ure] to notify [plaintiffs] that the home contained lead-based paint” is barred by the
misrepresentation exception), aff’d, 976 F.2d 724 (1st Cir. 1992). The same result is warranted
here.
C.

Plaintiff’s Claims Are Not Actionable Under South Carolina Law.

South Carolina law does not impose a duty on private citizens to investigate purchasers of
firearms and does not impose negligence liability for inadequate background checks. There are
only “two instances in which the FTCA would permit” plaintiff “to sue the Government for
negligence as a result” of the failure to enforce federal regulations: (1) if “the alleged breach of
duty is tortious under state law;” or (2) if plaintiff demonstrates the government 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 (citation omitted). Because there is
no analogous state law applicable to the United States in this case, the Court should dismiss
plaintiff’s claims for lack of subject-matter jurisdiction.
The existence of a duty is typically a question of law for the courts. Farwell v. Un, 902
F.2d 282, 288 (4th Cir. 1990) (citations omitted). The relevant question in FTCA cases is

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“whether a state-law duty exists, not whether a court can create or ‘recognize’ one.” LeLeux v.
United States, 178 F.3d 750, 759 (5th Cir. 1999); cf. Feres v. United States, 340 U.S. 135 (1950)
(effect of FTCA “is to waive immunity for recognized causes of action”).
There is no common law or civil obligation to conduct background checks prior to selling
a gun in South Carolina. Plaintiff identified no such duty in the complaint, and the United States
is unaware of any such duty. Where plaintiff “do[es] not cite,” and the Court cannot locate “any
reported decision of a South Carolina court that suggests” an analogous duty, the claim should
fail. Fla. Auto Auction of Orlando, Inc., 74 F.3d at 506.
Plaintiff, in her complaint, even liberally construed, only articulates two potential duties.
First, she argues the United States had a “duty to protect,” Compl. ¶ 40, plaintiff from criminal
acts as a result of a “relationship with [Mr.] Roof,” id. ¶¶ 48, 56, due to its background
investigation. Second, she argues the United States voluntarily accepted a duty of care to
plaintiff under a “good Samaritan” theory, see Compl. ¶¶ 19, 21 (“assumed a duty”), 48, 57
(“voluntary undertaking and acceptance”). Both arguments fail, and the Court should dismiss
the action.
1.

The United States owes plaintiff no duty to prevent Mr. Roof’s
criminal acts.

The United States did not assume a “duty to protect,” id. ¶ 40, plaintiff from criminal acts
as a result of a “relationship with [Mr.] Roof,” id. ¶¶ 48, 56, due to its background investigation.
Thus, any claims advanced by plaintiff under this theory fail.
In general, a person does not have a duty to protect others from criminal activities of
third-parties. See Cramer v. Balcor Prop. Mgmt., Inc., 441 S.E.2d 317, 318-19 (S.C. 1994)
(premises liability). Applying North Carolina law, the Fourth Circuit held that the United States
was not liable in a FTCA case to the victim of a service member’s assault and rape because
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“there is nothing in the record to indicate that the Army should have known that the [service
member] was a threat to [plaintiff’s] safety based solely upon [a prior burglary and assault] or his
prior expressed desires to kill himself and members of his unit.” Durden v. United States, 736
F.3d 296, 306 (4th Cir. 2013). The Fourth Circuit held that the United States owed plaintiff no
duty to confine and surveil the service member. Id. The Fourth Circuit’s reasoning is highly
persuasive here.
Thus, even assuming that the United States knew or had reason to know that Mr. Roof
was an unlawful user of controlled substances, the United States had no duty under South
Carolina law to protect plaintiff from any conceivable criminal act Mr. Roof might commit.
Durden, 736 F.3d at 306. “[A]n individual does not have a duty to protect the public from
speculative harm from a dangerous individual within his control.” Faile v. S.C. Dep’t of Juvenile
Justice, 566 S.E.2d 536, 546 (S.C. 2002). In this case, the FBI did not control or have custody of
Mr. Roof, and therefore it owed no “duty to protect” plaintiff from his attack. Contra id. at 548
(where State “had custody of a known dangerous individual” it had “duty to control and
supervise [him] to prevent him from harming others as long as it retained custody of him by
court order.”). Plaintiff fails to state a claim for breach of a “duty of protect” her from criminal
acts as a result of an alleged “relationship with [Mr.] Roof.”
Also, the Brady Act itself does not impose upon the United States a state-law duty to
protect plaintiff. In Florida Auto Auction of Orlando, Inc., the plaintiffs alleged that the
government failed to comply with its customs regulations when it permitted purchasers to export
auctioned cars without a certificate of title. 74 F.3d at 500-501. Those allegations are similar to
those at issue in this case, where plaintiff claims the government negligently discharged its NICS
regulations when performing the background check for Dylann Roof. In Florida Auto Auction of

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Orlando, Inc., the Fourth Circuit reviewed South Carolina law on government liability for
discharging statutory obligations. Id. at 503. The Fourth Circuit noted that “South Carolina
courts consistently have been reluctant to find special duties statutorily imposed.” Id. It held
that the customs regulations at issue in that case did not create an actionable duty under state law.
Id. at 504. The Brady Act and NICS regulations, like the customs regulations at issue in Florida
Auto Auction of Orlando, also do not impose “special duties” actionable under state law.
The Brady Act and NICS regulations do not impose any duty on the United States owed
to plaintiff. Instead, the Brady Act, in part, assists FFL compliance with the Gun Control Act.
Under the Act and its implementing regulations, the only entity NICS communicates with is the
FFL. 19/ See 28 C.F.R. 25.6(c)(1)(iv) (“Provide the following NICS responses . . . to the FFL that
requested the background check”) (emphasis added). In doing so, the Brady Act protects “the
general welfare and safety of the public,” Fla. Auto Auction of Orlando, Inc., 74 F.3d at 503, not
an identifiable class of persons. No language in the Brady Act or its implementing regulations
charge specific officers with a duty to plaintiff or individual members of the public. Thus, just as
Florida Auto Auction of Orlando, Inc. concluded the customs regulations did not impose “a
special duty, violation of which could subject the Government to liability for negligence under
South Carolina law,” id., the Court should reach the same conclusion here with respect to the
Brady Act and NICS regulations.
2.

Plaintiff fails to state a claim under a “good Samaritan” theory.

To the extent plaintiff alleges the United States undertook a duty of care to plaintiff under
a “good Samaritan” theory, see Compl. ¶¶ 48, 57 (“voluntary undertaking and acceptance”), she
fails to state a cognizable claim under South Carolina law. This also warrants dismissing
19/

NICS may communicate with the prospective purchaser if it denies the transaction and
the prospective purchaser administratively appeals that decision. 28 C.F.R. § 25.10.
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plaintiff’s claims.
Section 324A of the Restatement (Second) of Torts addresses an actor’s duty to thirdparties when he voluntarily undertakes “to render service to another which he should recognize
as necessary for the protection of a third person.” But South Carolina courts have not adopted
this provision of the Restatement. Miller v. City of Camden, 494 S.E.2d 813, 816 n.2 (S.C. 1997)
(“We decline to adopt the expanded liability of Restatement 2d of Torts § 324A (1965).”). South
Carolina does not recognize an actor’s “good Samaritan” duty to third-parties advanced by
plaintiff in her complaint.
The FBI’s maintenance of the NICS and its performance of background checks are
similar to the facts presented in Johnson v. Robert E. Lee Academy, Inc., 737 S.E.2d 512 (S.C.
Ct. App. 2012). In Johnson, a school hired accountants to investigate a possible theft of $9,100.
737 S.E.2d at 512-13. In the course of his investigation, the accountant discovered that plaintiff
deposited the $9,100 into the bank and that she did not steal the money. Id. at 513. Despite this
discovery, the accountant failed to report his findings to the police. Id. Because prior
representations by the school indicated plaintiff stole the money, and because the accountant
failed to report his discovery to police, the plaintiff was fired, arrested, and charged with theft.
Id. She sued the accounting firm, arguing, inter alia, that the accountant’s investigation
“constituted a voluntary undertaking that gave rise to a duty of care towards her.” Id.
The South Carolina Court of Appeals rejected plaintiff’s theory of liability, id.,
acknowledging that South Carolina has not adopted the Restatement’s “good Samaritan” rule for
third-party beneficiaries. Id. at 514 n.5 (“We are cognizant of Restatement (Second) of Torts
section 324A, although that section has not been adopted by our courts . . .”). But, even if the
rule applied, the Court of Appeals concluded that the accountant “owed no duty of care” to

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plaintiff as a result of his communications with police officials. Id. at 515.
The Court should reach the same conclusion in this case. Here, plaintiff alleges that the
FBI, like the accountant in Johnson, undertook responsibility to perform a background check,
giving rise to a duty of care to her. Plaintiff also alleges, like in Johnson, that the FBI failed to
properly conduct the investigation, resulting in harm to plaintiff. Because South Carolina does
not recognize the Restatement’s “good Samaritan” third-party duty of care, the Court should
dismiss plaintiff’s claims.
///
///
///

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CONCLUSION
The shooting at the Emanuel AME Church was an atrocity of unspeakable proportions.

The perpetrator’s actions were despicable. But the United States is not liable in tort for the tragic
shooting. The FTCA’s discretionary function and misrepresentation exceptions bar plaintiff’s
claims, and plaintiff advances no viable theory of liability based on state law. The Court should
dismiss the action for lack of subject-matter jurisdiction and failure to state a claim.
DATED the 14th day of October 2016.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
Civil Division
JAMES G. TOUHEY, JR.
Director, Torts Branch
Civil Division
RUPERT M. MITSCH
Assistant Director, Torts Branch
Civil Division
s/ Stephen R. Terrell
STEPHEN R. TERRELL
Trial Attorney
Torts Branch, Civil Division
United States Department of Justice
P.O. Box 888
Washington, DC 20044
Stephen.Terrell2@usdoj.gov
(202) 353-1651

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