The Executive Suite: The Argument for Federal Liability in Sutherland Springs

A common criticism about the gun debate in America is the lack of change after a tragedy. The knee-jerk reactions to pursue legislative action immediately happen, which then incurs the wrath of pro-gun advocates who declare rash changes in the law will inevitably lead to government infringement of an enumerated constitutional right. The cycle continues until no change comes about and then the next shooting happens, restarting the pattern.

The initial facts from the Sutherland Springs shooting on November 5, 2017, seem to indicate that this tragedy can lead to an outcome different from the tragedy/reaction/stasis rotation we typically face.

What is known about the shooter, Devin Kelley, is that he served in the United States Air Force and was given a bad conduct discharge due to serving a year in prison for a felonious assault resulting in multiple injuries, including the fractured skull of his infant step-son. Kelley also had a significant mental health history.

Kelley's actions that led to his incarceration and the USAF's failure to report are important to note because his ability to purchase weapons would've been stopped had the FBI been informed. A felon "convicted in any court of a crime punishable by imprisonment for a term exceeding more than one year" cannot own a firearm. Kelley's multiple assaults certainly satisfy that standard.

Kelley's domestic abuse conviction and incarceration have been required to be reported to the FBI background search database for more than 30 years, per the "DoD Criminal Investigations Policy Memorandum Number 10 (CPM No. 10), Criminal History Data Reporting Requirements, March 25, 1987." Quoting, "DCIOs and all other DoD criminal investigative and police organizations shall submit to the FBI . . . offender criminal history data for all Armed Forces members they investigate for commission of an offense . . .," emphasis added.

If the DoD regulations, memos, and studies had said the DoD "may" report to the FBI, or that reporting was within the discretion of an officer or particular subdivision, then the FBI reporting would be something that a military person would be within their right to either perform or not perform. But that discretion is not present; the language uniformly says the DoD "shall" submit reports to the FBI. It is this lack of discretion on the part of the DoD to perform this duty that potentially triggers the Federal Torts Claims Act as controlling law in this tragedy. Such liability could lead towrongful death, property damage, and spousal loss of consortium damages, but not prejudgment interest or punitive damages.

Under the Federal Tort Claims Act § 1346(b), the laws of the state where the incident took place can act as a limitation on liability. Texas appears to have no such limitation on this type of neglect. Nor does it appear that Texas law has to be applied at all since this shooting resulted from a breach of DoD duty. The Military Claims Act serves as an extension of authority under the Federal Tort Claims Act to apply to non-combat related breaches of duty by the United States Armed Forces against residents in the United States.

Alternative to the victims' potential reliance on the Federal Tort Claims Act or the Military Claims Act, an interesting prolonged civil suit is still being litigated. Smith and Wesson Corp. v. City of Gary is an ongoing lawsuit originating in 1999. The city of Gary, Indiana filed a lawsuit under a public health nuisance claim that gun manufacturers and dealers (gun industry) were liable for gun-related deaths as a result of negligent sales and distribution practices. The case was heard and remanded for further proceedings, directly challenging the authority provided under the Protection of Lawful Commerce in Arms Act (PLCAA). The PLCAA is another layer of legislative immunity for members of the gun industry engaged in legal commerce, however "predicate exceptions" exist in the law that allow actions to proceed under several different circumstances. The City of Gary case is exceptional in that while the central lawsuit is still progressing some 18 years after initial filing, several defendant merchants have settled and the case serves as a real-time application of new legislative enactments and legal arguments.

But just as City of Gary is informative of how evolving legal and legislative posturing impacts ongoing litigation, the greatest value of this case may just be the focus on how private manufacturers and dealers are shown to be manifestations of government action.

The plaintiffs in City of Gary rely on several base assumptions in order to validate their claims: that the gun industry has a duty to the public; that the same entities exercise discretion in their respective roles that create potential breaches; and that the unique roles taken on by the respective manufacturers and dealers are solely in the position to prevent or permit the types of damages suffered by Gary, Indiana. Taken in combination with the fact that the gun industry is the exclusive commercial manifestation of an enumerated constitutional right, the argument that the gun industry is a state actor can be made. Should a state actor theory be established for the gun industry, liability under § 1983 can then be explored, presenting another layer of federal liability when gun massacres occur.

Taking the PLCAA's predicate exceptions that are litigated in City of Gary and applying them to current tragedy, the victims' families from Sutherland Springs can look for evidence that the gun industry abused its discretion or otherwise negligently sold firearms to Kelley. Perhaps Kelley sought a personal acquaintance who was working at the store who knew but ignored Kelley's criminal and mental health issues, or maybe Kelley appeared to be impaired or otherwise incapable of using a firearm safely at the time of purchase. Such evidence would go a long way in helping to establish the gun industry's liability under the PLCAA. Again, when combined with the exclusivity the gun industry enjoys, liability under § 1983 becomes a real possibility because the plaintiff's rights have been violated by the negligence of a state actor.

The survivors and loved ones from the Sutherland Springs massacre possess a strong factual basis to hold the federal government liable under the FTCA and the MCA due to the DoD's failure to report. Depending on additional evidence, gun industry liability under the PLCAA is also a strong possibility, and can potentially lead to § 1983 liability due to the constitutional factors presented. Any successful action by the plaintiffs under one of these theories has the possibility of bringing about the change sought (or feared) in our nation's gun debate. For that matter, a successful defense by the gun industry under any of these theories can have the same legacy.