21 F.3d 159 (7th Cir. 1994), 93-3170, Stephenson v. Stone

Docket Nº:93-3170.
Citation:21 F.3d 159
Party Name:Linda K. STEPHENSON, April K. Stephenson, Terry W. Stephenson, Sr., Individually and as Personal Representative of the Estate of Terry Wayne Stephenson, Jr., Deceased, Plaintiffs- Appellants, v. Michael P.W. STONE, Secretary of the Army, Department of the Army, United States of America, et al., Defendants-Appellees.
Case Date:April 05, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 159

21 F.3d 159 (7th Cir. 1994)

Linda K. STEPHENSON, April K. Stephenson, Terry W.

Stephenson, Sr., Individually and as Personal

Representative of the Estate of Terry

Wayne Stephenson, Jr.,





Michael P.W. STONE, Secretary of the Army, Department of the

Army, United States of America, et al.,


No. 93-3170.

United States Court of Appeals, Seventh Circuit

April 5, 1994

Argued Feb. 9, 1994.

Page 160

John H. Caress (argued), Indianapolis, IN, William L. Bracken, Greencastle, IN, for Linda K. Stephenson, April K. Stephenson, Terry W. Stephenson, Sr. plaintiff-appellant.

Barbara L. Herwig, Dept. of Justice, Civ. Div., Appellate Section, Jonathan T. Weinberg (argued), U.S. Dept. of Justice, Civil/Appellate Div., Washington, DC, for Michael P.W. Stone, Department of the Army, U.S., Stanley D. Hansen, Joseph R. Sullivan, James M. Adkins, Regelio D. Mendoza, James E. Adams.

Before POSNER, Chief Judge, and BAUER, Circuit Judge, and NORGLE, District Judge. [*]

NORGLE, District Judge.

On a military base, in the early morning of July 7, 1991, Sergeant Timothy Karl Miller ("Sgt. Miller") entered Specialist E-4 Terry Wayne Stephenson's ("Spc. Stephenson") barracks through a window. Armed with a .44 caliber automatic pistol, Sgt. Miller shot Spc. Stephenson in the back of his head, killing him. Using the same pistol, Sgt. Miller took his own life later that morning.

Spc. Stephenson's next of kin, Linda K. Stephenson, April K. Stephenson, and Terry Wayne Stephenson, Sr., individually, and Terry Wayne Stephenson, Sr., as the Personal Representative of the Estate of Spc. Stephenson (collectively "Appellants"), filed a two count complaint on December 3, 1992 against the United States, the Department of the Army, Secretary of the Army Michael Stone, and five Army service-members. Count I sought damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 2680(h), alleging that Spc. Stephenson's death was caused by the Army's negligence. Count II sought damages pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), claiming the Army deprived Spc. Stephenson of his Constitutional rights by its reckless disregard for his safety. The district court dismissed both claims.

This appeal requires us to determine whether the district court was correct in concluding that the doctrine pronounced in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) bars Appellants'

Page 161

claims. We conclude that the district court was correct, and we affirm.


The posture of this case requires us, as it did the district court, to accept as true all of the properly pleaded allegations in the complaint as well as the inferences reasonably drawn therefrom. Mid American Title Co. v. Kirk, 991 F.2d 417, 419 (7th Cir.1993). According to the complaint, Spc. Stephenson served as an active-duty member in the Army and was stationed at Fort Irwin, California. Between December 1, 1990, and March 31, 1991, Sgt. Miller, one of Spc. Stephenson's superior officers, engaged in homosexual acts with Spc. Stephenson. After the sodomy was reported to the proper military authority, the Army initiated court-martial proceedings against Sgt. Miller for a violation of the Uniform Code of Military Justice. Spc. Stephenson was scheduled to testify against Sgt. Miller in the court-martial proceedings under a grant of immunity. Sgt. Miller, however, silenced Spc. Stephenson with his bullet.

The Army's alleged negligence occurred during the months preceding the shooting. Sgt. Miller had been reassigned to battalion headquarters because of the forthcoming court-martial proceedings. Army personnel diagnosed Sgt. Miller as suicidal. Sgt. Miller also threatened Spc. Stephenson's life on a number of occasions. These threats were reported to the Army. The complaint alleged that the Army did not successfully isolate Sgt. Miller from Spc. Stephenson, despite orders that the two were to remain apart and despite Sgt. Miller's threats of bodily harm.

The Army's negligence also arose from the method in which it handled the personal weapons of the service-members stationed at Fort Irwin. Sgt. Miller personally owned five firearms that were locked in the company arms room. Army regulations, rules, and operating procedures govern the storage of personal weapons. On April 12, 1991, Sgt. Miller retrieved five of his firearms from the arms room by following the applicable regulations. But on April 17th when he returned to restore the weapons to the arms case, Sgt. Miller did not return all five guns. Sgt. Miller instead left the arms room with his .44 caliber automatic pistol and stowed this gun in his barracks room. The military authorities did not have any immediate knowledge of Sgt. Miller's possession of his automatic pistol. The Appellants' position, however, is that the company armorer was careless in allowing himself to be distracted when Sgt. Miller purportedly returned his firearms, thus, allowing Sgt. Miller to surreptitiously retain his automatic pistol.

Army personnel later conducted an inspection of the arms room and discovered that Sgt. Miller's weapons case was locked, although all such cases were required to be unlocked for inspection and inventory. After the inspection, Sgt. Miller was asked to open the gun case on several occasions. Sgt. Miller, however, prevented the inspectors from discovering that he was in possession of his pistol. Specifically, Sgt. Miller declined requests from the company armorer to unlock the arms case and to allow an inspection. Although Sgt. Miller's superiors knew that the gun case was locked and unavailable for inspection, no action was taken to compel Sgt. Miller to comply with the Army directives. This was true even after Sgt. Miller's superiors received information that he was hiding a gun.

Appellants claim the Army should have transferred Sgt. Miller's private weapons to headquarters, properly inventoried his weapons, conducted effective training for the physical security of privately owned weapons, and searched Sgt. Miller's room after receiving information that he might have been hiding a gun in it.

On Appellees' motion, the district court dismissed both counts of Appellants' complaint. The district court held that the Feres doctrine barred the imposition of liability under the FTCA because Spc. Stephenson's death was incident to his military service. Because the death was incident to service, Appellants' Bivens action was barred as well pursuant to United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987). Appellants appeal this decision, arguing that the risk of being murdered by a

Page 162

maniacal, suicidal commanding officer is not a risk that service-members assume incident to their service in the military and, therefore, the district court erred in dismissing the suit.

We conclude that the Feres doctrine bars Appellants' claims arising out of the death of Spc. Stephenson while on active duty at the Fort Irwin military base and arising from the alleged negligence of military personnel in the performance of their official duties.


The FTCA serves as a broad waiver of federal sovereign immunity. Kosak v. United States, 465 U.S. 848, 852, 104 S.Ct. 1519, 1522-23, 79 L.Ed.2d 860 (1984); see United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 402-03, 95 L.Ed. 523 (1951) ("The [FTCA] waives the Government's immunity from suit in sweeping language."). The FTCA allows individuals to sue the government for personal injuries or death under circumstances where the government would be liable if it were a private individual, and in accordance with the law of the state where the wrongful conduct occurred. 28 U.S.C. Sec. 1346(b). Thus, individuals are generally capable of recovering from the government and its...

To continue reading