U.S.A. –-(AmmoLand.com)-– On November 5, 2017, Devin Patrick Kelly shot and killed 26 churchgoers and wounded 20 more in Sutherland Springs, Texas. Kelly was stopped by Stephen Willeford, who disrupted the shooting and wounded Kelly.
Kelly purchased the firearms he used through federally licensed dealers. The National Instant Background System (NICS) approved of the sales, even though Kelly was a prohibited possessor. The Air Force had failed to enter the criminal data about Kelly into the NICS system.
Survivors of the shooting sued the federal government for negligence, using, in part, the Federal Tort Claims Act (FTCA).
In general, the Federal Government is immune to lawsuits under the doctrine of sovereign Immunity. The Federal Government can be sued if it authorizes the lawsuit. The FTCA is one way the Federal Government authorizes lawsuits against itself.
The Sutherland Church shooting case became a consolidated case of all the plaintiffs, known as Holcombe v USA.
The government lawyers moved to dismiss the case, based on sovereign immunity, claiming the court did not have jurisdiction. The trial judge found the government had waived sovereign immunity with the FTCA, at least in part. This allowed the case to go forward and for discovery to proceed. From the Order on motion to dismiss on Casetext.com:
ORDER ON MOTION TO DISMISS
XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE
On this date, the Court considered the Government’s Motion to Dismiss for Lack of Jurisdiction (docket no. 28), Plaintiffs’ response (docket no. 44), the Government’s reply (docket no. 45), Plaintiffs’ sur-reply (docket no. 51), and the Government’s sur-sur-reply (docket no. 52). After careful consideration, the Court GRANTS IN PART AND DENIES IN PART the Government’s motion.
The crux of the lawsuit was the Air Force had been negligent in not entering Kelly’s criminal information into the NICS database. The evidence was clear:
In 2014, the DOD’s Inspector General (“IG”) evaluated compliance with DOD’s reporting procedures. The investigation concluded that
10 years of DoD criminal incident data have not been provided to the FBI for inclusion in the annual uniform crime reports to the President, the Congress, State governments, and officials of localities and institutions participating in the UCR Program, as implemented in DoD Directive 7730.47 and DoD Manual 7730.47-M, Volume 1.
In the time period sampled, Air Force Security Forces failed to submit fingerprint cards and final disposition reports in 60 percent of cases.
The government lawyers claimed the USA was immune because of the immunity paragraph in the Brady act:
This provision states:
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 … 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.
The court found the Brady Act specifically did not grant immunity to the federal government as a whole, only to employees of the federal government. From the order to dismiss:
Similarly, here, in enacting the DOD regulations mandating that information be collected and reported to NICS, the Government assumed a duty to act non-negligently in doing so. And when USAF promised to adopt the IG report’s recommendations and fix its systemic problems, it re-affirmed this assumption of duty.
Once the court refused to dismiss the case and found the USA was not immune because of the FTCA, the results were understandable.
The court found the Government was 60% responsible for the Plaintiff’s injuries. The court awarded economic damages; Pecuniary Loss, Loss of Inheritance, Loss of Earning Capacity, and Loss of Services.
The court awarded noneconomic damages for Mental Anguish, Pain and Suffering, Physical Impairment, Disfigurement, and Loss of Consortium or Companionship.
The award of $230 million is split among about 80 claimants. Amounts awarded varied considerably, from three thousand dollars for damage to property, to over 18 million dollars for extensive economic and noneconomic damages involving physical injury, pain and suffering to one claimant.
The government has 10 days from the court order on February 7, 2022, to file any objections to the proposed judgments.
I do not expect this decision to affect the operation of the NICS system very much. The Department of Defense’s entry of data into the system is likely to become more rigorous. It is possible the NICS act will be amended to specifically include immunity for the USA government as a whole.
The reliance of the Court on the FTCA and the lack of immunity for the USA in the Brady Act limit the decision’s impact on NICS.
It is likely the government will appeal to the Fifth Circuit Court of Appeals.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.