Trial News

The federal government does not have sovereign immunity for claims that its negligence in reporting information that would have barred an ex-servicemember from buying a gun led to a mass shooting at a Texas church, a federal district court has ruled. The court also allowed the plaintiffs’ negligent undertaking and negligent training and supervision claims to proceed but denied their negligence per se claim under Texas law. (Holcombe v. United States, 2019 WL 2234790 (W.D. Tex. May 23, 2019).)

In 2017, a former U.S. Air Force airman, Devin Kelley, killed 26 people and injured 20 others at a church in Sutherland Springs, Texas. He had legally purchased the gun used in the shooting, despite a record that should have disqualified him under the Brady Handgun Violence Prevention Act (Brady Act). He had a criminal conviction resulting in more than one year of imprisonment, had been committed to a psychiatric facility, had been dishonorably discharged from the Air Force, and had been convicted of domestic violence.

The Brady Act established the National Instant Criminal Background Check System (NICS). When someone attempts to purchase a firearm, the FBI runs a check through NICS and then informs the seller whether to proceed with, deny, or delay the sale. Federal agencies, including the U.S. Department of Defense, must report any disqualifying information to NICS. Despite these reporting obligations, a Department of Defense Inspector General report from 2014 found that 10 years’ worth of information had not been reported and that the Air Force specifically had failed to report fingerprint cards and other required information in 60% of cases during that time period. For Kelley, the Air Force failed to report his criminal history and other disqualifying factors.

The plaintiffs—survivors and family members of the shooting victims—allege that the government was negligent under the Federal Tort Claims Act (FTCA) for not reporting or reporting inaccurate and incomplete information about the shooter. The government moved to dismiss the claims, arguing that it is immune from liability under the Brady Act and the FTCA’s misrepresentation exception, which bars claims arising out of misrepresentation or deceit. It also argued that it could not be held liable since Texas law would not hold a private person liable for the plaintiffs’ allegations.

For the FTCA’s misrepresentation exception, courts follow the traditional two-part test to determine whether the government retains immunity: “whether ‘the chain of causation’ from the alleged negligence to the injury depends upon a misrepresentation by a government agent” and if it does, whether Congress has waived sovereign immunity beyond the FTCA. Since nothing beyond the FTCA applied here, the court considered the first part of the test only.

Relying on U.S. Supreme Court precedent in Block v. Neal (460 U.S. 289 (1983)), the court explained that a misrepresentation alone is not enough; the plaintiff must have relied on that misrepresentation for the exception to apply. The Holcombe plaintiffs did not rely on the government’s communication to the gun sellers that they could proceed with their sales to Kelley. The gun sellers’ reliance on the government’s communication is not sufficient, the court reasoned, because it does not affect the plaintiffs’ chain of causation.

Next, the court considered whether the Brady Act conferred immunity on the government separately from the FTCA. The act immunizes federal government employees who are responsible for providing information to NICS “for failure to prevent the sale or transfer of a firearm to a person whose receipt or possession of the firearm is unlawful” under the statute. The court asked whether the Brady Act rolls back the FTCA’s waiver of sovereign immunity and found that it does not. Agreeing with the plaintiffs’ stance that the United States is not listed as an entity granted immunity in the Brady Act, the court found that the statute’s plain language supports the interpretation that if Congress intended to include the United States as an immunized party, it would have done so explicitly. This interpretation is buttressed by the fact that Congress listed specific parties in the Brady Act’s immunity provision and could have included the United States if it had intended immunity to extend to the federal government itself.

The court also concluded that the Brady Act’s immunity for federal government employees does not extend to the government itself. The FTCA allows the United States “judicial or legislative immunity” that is available to its employees, but this is limited to “the traditional immunities that have long protected the key functions of the legislative and judicial branches” and “not congressional grants of immunity directed at specific individuals or circumstances.”

The court next turned to the plaintiffs’ specific negligence claims. Regarding negligence per se under Texas law, it concluded that the plaintiffs did not show that there was a corresponding common law duty to the statutory duty to report derived from the Brady Act, which is a required element. Since the duty is wholly imposed by a federal statute without an analogous state law duty, the plaintiffs’ negligence per se claim cannot be sustained under the FTCA.

However, the court ruled the plaintiffs’ negligent undertaking claim could proceed. Texas law imposes “a duty to use reasonable care . . . when a person undertakes to provide services to another.” Because federal statutes require the United States to establish NICS, then the government also assumed a duty not to operate the background check system negligently. Noting the epidemic of gun violence in the country and the foreseeable threat that Kelley posed, the court concluded that the United States owed a duty to the plaintiffs. The court also held that the plaintiffs’ negligent training and supervision claim could proceed since federal employees handled reporting the information to NICS, and if their failure to do so was proximately caused by negligent supervision or training, then the government could be liable.

Dallas attorney Jamal Alsaffar, who represents some of the plaintiffs, said, “The ruling affirms what we’ve known all along, and that is that these families’ and victims’ claims against the government are valid and just. Judge Rodriguez’s very thorough ruling allows these families to finally have their day in court and seek accountability from the government.”