t six issue they prefer they won st thing in the morning examine the connally is tasked with doing a routine background check on dillon roof who wants to buy the semi columbia p d will have the report connally hits a button on her computer and looks at one of the several resources available in this case the south carolina contact meanest and she looks on the lexan county and does not see columbia p d but she does see wes columbia p d so she faxes the west columbia police department a request for the us to report day to the next so what does she do next nothing she quits in her deposition she acknowledges that the sheriff's office had told her columbia p d has the answer report she also acknowledges she nothing she's already quit s o p five five point five states this and point the examiner will contact the point to contact you will contact the courts you will contact the arresting agencies in accordance with the preference indicated on the state processing page and the contact list every effort must be made to tying the necessary information in order to make a final decision indeed this is so peace is the next paragraph to emphasize it the next has an obligation to make every reasonable effort to obtain the information from the say processing page in bo courts and arresting agencies all the primary contact if you want to get enough report you get it from the sheriff's office or from the appropriate police department yet before the district court the government court the government maintains well she was just waiting on the source of the sender a copy an indictment that's why she didn't do anything for of and before this coordinates brief and i assume an oral argument the government says well we want waiting only indictment we wait on the slowest of send us the the the judge got it wrong because he had a gross misunderstanding of the nics policy is what he wrote in his will it's not surprising that connally did nothing f because the next policy was not to follow up with an agency did wrong couldn't be more mistaken the policy in the government concedes this the policy is you don't follow up with an agency if a contact is been made and the agency doesn't respond and there's lots of study done by the nick show this is not an official way to follow up an agency then responds to you don't follow up if they have not respond but primary contact she contacted the sheriff's office the and i'm not exactly sure what the government's response is but as i understand it she did go to the likes it's in court arresting agencies and as i understand it you've agreed that she contacted the court and that she did contact the sheriff's office she got incorrect information she did contact the i mean st of all that's who she should contact just the simple facts at all that's exactly what they did after the mass in fact it was deborah russell who wrote media balazs you contacted columbia p d they said son is the fact and they sent back  disqualifier within maybe two minutes bruce wrote requests to purchase a boost which is grown and denied that because of the murders because he was not qualified to own one so mr wilkins as you say columbia p d that's a pretty big police department i guess your point is that she should have known who the what the condit or the yard fischetti sitting in south carolina ok but if she didn't know she was she was negligent or what what's the point  and they certainly would tell who the contact is with the columbia p d one of the things she had to hit one button owner computer and pull up another label resource the south carolina city access and that's almost direct coat is that in the s o p or is that just something that examiners know to do that is the method by which that's the information the doubt ablations supplied to her by the nic required so what's the significance she looks at south carolina contactless for lexington county and there's no city of columbia on there in the government's maybe i'm wrong about this the government says well that means she she followed the procedure we did than when it didn't turn up anything that's the end up well that's not the end of the the further research is that part she even said regional coordinator testified to and the assistant director of the whole outfit steven marsh just these s o p s or mandatory and must be follow discretionary function exceptional trying to do if i won the two tiered approach in the st year is that the statute of the policy prescribes the employee's conduct conduct cannot be discretionary in dust it  not protected by the discretionary function exception the s o p s obviously mandatory there replete with descriptive terms like must you will you are required to and almost totally devoid of any word like to conduct external research consistent with the state process page and contact list you know if if if she had done this if she had followed her mandate she would have been led to the columbia police department even if cases and it plainly does not apply to this defendant in this case to begin with section one thousand and six only applies to defendants who are quote responsible for providing information to the nics database and that's not what the government is doing we know that's not what the to providing information has to be read in the context of the law and shows that it's a clear reference to that the behavior by that set stakeholders and not the other on note also that in determining whether what the government con even if it were providing information because section one hundred and twenty to thirty six immunize is only a local government or an employee of a federal state or local government here the defendant is the federal government itself is not an employee of the government of course it's not local government so again the words of the statute just don't apply and that's particularly significant because when congress has sought to provide a blanket ban against suing the u s government elsewhere in the u s quote it's done so in pretty clear terms and we provide a couple of examples of that in our brief finally the structure of the brady act in general confirms what the clear text of the provision already makes clear and that's that this is not a statute that provides blanket immunity it's a statute that permits some lawsuits and bars certain other ones for example there's a permission for a lawsuit to correct your erroneous denial of a firearm that section nine hundred and twenty five and the existence of congress having carefully created targeted immunities but also allowed certain other lawsuits shows that this was not a sweeping immunity and that to honor congress intent in writing those specific provisions the statute has to be interpreted carefully in the terms of the statute have to be applied carefully which respectfully is an analysis that the district court here didn't undertake  greatest respect and sympathy for the victims of this tragedy and the survivors i can understand the depth of the pain they have encountered and continue to encounter and i just want to say that closer to a yes or a better yes plaintiffs seek to impose liability on the united states based on policy decisions the f b i has made regarding how best to perform criminal background checks of individual seeking to purchase firearms and as you know the f t c has a limited waiver sovereign immunity and it has several exceptions probably the most important of which for my branch in my section is the discretionary function exception without which the government could not function on a daily basis without being constantly sued as in this kind of jump standard operating procedure requires certain actions be taken the examiner the examiner fails to take the section does that work the discretionary function exemption your honor i'd say in the th circuit it's clear that something that you're referring to which are standard operating procedures internal guidance under the seaside holbrooke and tiffany cases cannot trump the mandate of discretion given in either a statute in this case the brady act or in the regulations below it and so we have testimony in the case from the f b i as thirty b six witness ms del greco saying that the standard operating procedures are a guy designed to guide investigations but your honor i would direct you to those three precedents some of which are very recent that say that in effect that the price for circulating internal guidance cannot be an explosion in tort liability if i may your honor just for a nd there are three hundred and seventeen nics examiners they have twenty two thousand inquiries a day eight million two hundred thousand a year the point of the standard operating procedures is to try to get people roughly on the same page rather than just saying you know go do willing nearly what you think is right however the f b i is position in the th circuit's position is very clear that that does not trump the broad discretion given to the attorney says are you saying in that circumstance if the examiner here simply had not contacted the sheriff's office or the west columbia police department just didn't do it so violated the standard operating procedure there's still no liability under discretionary function that would be covered meaning your honor no liability the standard operating procedures do not create a mandatory requirement that trumps discretionary function in the th circuit full stop there is no case to the contrary well let's say just for purposes of argument we effort to follow the standard operating procedure and then you'd look at the process of pages as contact information or it's interesting agencies in that circumstance what would what would have sufficed as a contact for the courts in a rustic agencies in your view i realize you your point is that you don't ever have to get there but if we did what would suffice as a contact it would involve your honor the discretion of the examiner and in this case and i don't want to get too divorced from the facts because the examiner did contact the lexington sheriff's office which was listed as the arresting agency and she also contacted the th circuit solicitor's office so she did contact them now with plaintiffs would like to say and judge gurgel the district court rejected is that they have to do all now judge gurgel came up with the good i think relevant example during oral argument where he said look they got probation offices on there of course they're not going to be contacting probation officer this goes into the discretion given to the f b i and to the examiner on how to carry out an investigation and that person because of finite resources at the f b i in carrying  eight million dollars checks a year has to have some discretion on how he or she carries them out and in this instance she contacted the arresting agency and she contacted the th circuit solicitors the war yes  with the full circuit it can arise in terms of liability in that sense if we're complaining about standard operating procedures are not adequate right the broad range of f b i and the government to propose and implemented a program for these searches you can't do that but here there isn't the the plaintiffs are not saying that the s o p's were wrong and adequate instead this is the case w department and this is the capital of the state would like to give you some places awful and wonder where it is you know i never you know i don't know south carolina police department and she did follow up that that's a matter of o perhaps negligence but that does make it discretion because you don't do what she clearly told you should do i disagree or i know you disagree but it but in that manner please you know if you can please answer that the fact that she didn't do what the point of contact complaint that the s o p was in adequate that the plaintiffs are making that yes not sure i understand your question or i'm not trying to be difficult for you to be a difficult long i'm not being clear is there any you when it gave you exactly correctly the information and you just didn't do it now when are you going to ask anyway you will thank your honor no it didn't because what the response said in part was columbia d now what the the examiner testified is that often they won't be responding agencies don't give complete information so what she did then she did what was was outlined in the s o p she went to the contact list for lexington county and so because that's where the arrest ones and on their contact list it said west columbia columbia was not included it should have been but it wasn't and so because of her experience she saw west colombia reached out to them west columbia came back and said this is not a west colombia arrest now she didn't quit at that point she still had an outstanding request to the th circuit solicitor office however she did come fly with what she needed to do as the district court found and the f b i found under the standard operating procedures and so if she was negligent and i'm not saying she is but let's assume argue endo that still is a matter of discretion in how you carry out the investigation she carried it out by going to the very colomba the lexington sheriff did not provide the o r i d which is the data that identifies the police department it didn't provide anything so she needed columbia police department how much more information which is needed well your honor they are not allowed to they being the examiners use the internet except to go to law enforcement agency yes your honor but it on the next thing that was required on her and so he was to look at the contact i thought you said that this was an account soapie that requires a certain number of steps which one is that i'm saying that she contact the courts and ask opposing counsel whether the internet search of the lexington general sessions court was a contact or the f b i so that  but is that sufficient particularly when you look at the you go to the contact list there's general sessions court and it tells you the fax machine doesn't work and you're to call somebody  t the general sessions court what she did not do so when it says the contact the court did the examiner do that the general sessions court i don't believe so you're on she mandatory to contact them all and you wouldn't go down to the probation officer in the testimony in the cases you contact the arresting agency to get an incident report that's who she was thinking that's who she thought he was contacting your view of the laws understand you stated is that an examiner who would have done neither in this case didn't contact sports didn't contact the rest so there would still see it the same way and so the price circulating internal guide should not be an explosion in tort liability and if that's what comes down from the court then that is going to seaside in tiffany so if let's say that this somehow the standard operating procedure wasn't standard operating procedure would it but it was part of a formally adopted regulation by the justice department would that change your answer in the discretionary and well your honor it would depend on the analysis of the standard operating procedure but let's assume for sake of would be mandatory but in this case where we have s o p s such as every effort must be made as we say in our brief that is far too broad far too amorphous to be considered mandatory it just simply cannot be something that you can point to for mandatory tort liability that may be the case but i understand you argue but that's not this case they did exactly what there was supposed to do they say told you we don't have it but we tell you where it is south carolina police i mean in columbia south carolina police department you're saying that they're not required to go there if they go some solicitor's office only here but we're not talking about going all around please it's the rec want to point and you talk about i guess you make the church chicken little argument about know i'm not saying that your honor i'm saying that there was an error when she went to contact she and it did not less columbia and she made her best effort and best discretionary decision of where to call and that's all that was required to do she has not required just because colombia is a big city to know everything about it compared to a little city that would be getting into negligence negligence is not does not overcome discretionary function and not doing the right thing then turning to discretion need lead here to the of a to the land her to west columbia that was because she didn't go my question is when i say it was it was absurd in the hypothetical i gave you and you answer that so i don't need to exonerate me or anything that regard because my question to direct to get you answers so answer that question yes i said it's my my answer to that your honor is if she had actual knowledge we would agree and she said that was columbia i know officer joe is there that's a different case than we have here in this case we have somebody who went to her next her next finding god make sure i understand as you say it's a different case it's not really a different case because under your view of this she even under his hypothetical well judged yes if it was negligence yes if there was intent that would be something else and so i'm talking about negligence and so if she intentionally she knew this and intentionally did not call it we have something different that's not this case may i address brady as well i'm in my time has expired so you may have yes if when she looked of contact list and there was no city of columbia had she not contacted the west columbia police department that changes no absolutely not she would have then said there is no requirement to continue to follow up on research it was considered to add to the regulation that delayed the actually answered within three days and that amendment was rejected and so is our reading your your responses to all the argument basically the government bottom line is the government kind of has an all or nothing defense here that really doesn't matter what transpires in a particular activity whether it's this one or another at the standard operating procedure level i think that is correct at the regulation level and at the brady act level they required different analyses which we've greenest and i was prepared to address that at the standard operating procedure level that is absolutely correct and it is in line with the th circuit's opinions including very recent ones and who who characterizes the standard operating procedure is something less than gun violence i think your honor under the brady act it was to protect those who are involved with the next system as well as the three hundred and sixty five million  as judge gurgled got it right that this statute does not impose monetary damages on the united states he could not find us a case because it doesn't exist so six your honor that is the alternative ground that judge curricle dismiss the complaint on and then we still have south carolina law which judge gurgled did not address and so certainly if the brady act itself at the statutory had something that was mandatory that's something that would be considered under the f t c a as taking you of discretion arguably if there was something at the regulatory level perhaps but here the regulatory level is so is so loose using terms like right we were going through this was before but if there's regulation that directs specific activity that's not exempt from the federal tort law if it is specific and mandatory  it can can and takes away discretion that is correct so the kellogg hansen brief talks about the brady ak not being designed for this purpose they impart start with the fact that it's has local government and then federal employees and state employees the reason why it says local government is because local governments don't have sovereign immunity of their own and so it would have to list a local government as opposed to the federal government or state government which both have sovereign immunity on their own beyond that the cases in this court norton and my dana both make clear that the federal government is allowed to raise the defenses including the immunity of federal employees now my dana was decided in two thousand and one now it's dicta in a footnote but the footnote is pretty clear the united states is entitled to avail itself of any defenses of its entities could raise in their individual capacities and in that case they talked about state communities under bridges in the norton case which is  they talked about federal i'm unities and so what my learned colleagues are trying to do is create a false distinction between defenses and immunities this case is as it's the court made its decision again in dicta in a footnote but it's clear that if discretionary function in medina was not available the court would have dismissed i  there's a reason for that the specificity of the latter community forum police would not carry over to the foregoing immunity only for governments yes ron and that was my point is the reason they had to list local governments pacifically is because they don't have sovereign immunity state and federal do you know that that's not what you read on the face of the statute that's  where we're required to go by the plain language of search right here on our i think that i may be misunderstanding your question your honor are you saying that the local government then has m reference later and that's what takes it out you have two different groups that are granted immunity governance statute one to sit too well government and then the latter group or employee and the employees or federal state and local governments and the fact that congress left state and federal government out of the st one would seem to me not to give it statutory unity under that particular backdrop of state and federal sovereign immunity so there would need to less local government state government federal government and then there are three employees because it's known that state and federal both have their own communities they have sovereign immunity whereas the local doesn't that's why the local had to be included there specifically and then in terms of the last point where they say that  we do not provide information we being the next examiners to the next system they certainly do i mean they provide deny and delay it approved and so even under their argument we would have and to provide information to the next system so i think the district court got it right and i think that this provision is designed to protect the federal government from money judgments in these types of cases supposed to do in fact as she just college just for we're not allowed to do anything other than exactly what the s o p and the processing page and the context tells us to do if we will make a change or do something different you know what i have to do they have to send a memo up the line to management and management makes a policy decision and sends it back but you know if they're going to be a change now section five  integrity of the contact list and never did anything even though she was responsible for doing the contact list for west virginia north carolina where she learned that some citizen went to different counties even she lives in bluefield west virginia on before releasing they didn't test a lot they released it and the supreme court said they had no discretion to deviate from the mandated procedures connally's conduct is hot is a hell of a fall linda discretionary function exception than the exception each the rule which of supreme court warrant would defeat the purpose of the brady bill this is a rare case and i doubt that eleven happened again