Feds not liable for failing to report prohibited persons to NICS

• Posted on 21 June 2018
• By Write Winger
• 0

So the complaint was dismissed, because even though the government wants you to go through a background check every time you buy a gun from a dealer to make sure you’re not a prohibited person, the government is under no obligation, and cannot be held liable, for making sure prohibited persons are actually in the background check system

The families of those murdered by Dylann Roof in that South Carolina church on June 27, 2015 were dealt a blow after they’re lawsuit was dismissed against the Federal Government for its failures in the National Instant Criminal Background Check System that allowed Roof to purchase a firearm.

Under federal law, Roofs narcotics arrest on February 28, 2015, disqualified him from receiving a firearm. Nevertheless, he was able to purchase the Glock pistol from a federally licensed firearms dealer on April 11, 2015 because the FBI's National Instant Criminal Background Check System ("NICS") failed to discover Roofs disqualifying arrest record.

 The Federal Tort Claims Act only allows the government to be sued and can be held liable”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."

The government, in this instance, relied on the fact that the “Brady Handgun Violence Protection Act of 1993” which established NICS specifically exempts the government from any liability.

The Government asserts that a specific federal statute, 18 U.S.C. § 922(t)(6), grants immunity to the Government arising out of the failure to prevent the sale of a firearm to an ineligible person through the processing of background checks in the NICS. The statute reads as follows:

(6) Neither a local government nor an employee of the Federal Government or of any State or local government, responsible for providing information to the national instant criminal background check system shall be liable in an action at law for damages-

(A) for failure to prevent the sale or transfer of a firearm to a person whose receipt or possession of the firearm is unlawful under this section; or

(B) for preventing such a sale or transfer to a person who may lawfully receive or possess a firearm. 18 U.S.C. § 922(t)(6).

The court concludes:

Congress's clear intent in enacting § 922(t)(6) was to prevent any assumption of monetary liability for the operation of the background check system.

So the complaint was dismissed, because even though the government wants you to go through a background check every time you buy a gun from a dealer to make sure you’re not a prohibited person, the government is under no obligation, and cannot be held liable, for making sure prohibited persons are actually in the background check system - because they exempted themselves in the Brady Act from liability.

On top of that, if someone is incorrectly determined to be a prohibited person through NICS and is denied a gun sale, the FBI hasn’t processed appeals for a false denial since 2015 unless sued - in which only on a case by case, lawsuit by lawsuit, basis will they get off their ass and process you. The Department of Justice is currently facing a lawsuit challenging this lack of action as a violation of the plaintiffs’ Second Amendment rights.

And one of the biggest gun control mantras we hear now is, “We need a universal background check for every gun purchase!” First, in the land of the free, liberty and justice, and all that crap, to be presumed guilty unless you pay the government to prove you’re innocent to get permission to exercise your right to keep and bear arms is bad enough, but if that government can’t actually maintain a database of people THEY’VE determined are too dangerous to have access to a gun (but can still have access to society apparently) AND can’t be held liable for not maintaining that database AND won’t process your appeal if they falsely determined you to be a prohibited person... BY GOD we need to expand that system, don’t we?!