Holcombe v. United States, Civil Action No. SA-18-CV-555-XR

Decision Date23 May 2019
Docket Number No. 5:18-CV-944-XR, No. 5:18-CV-951-XR, No. 5:18-CV-1151-XR, No. 5:19-CV-506-XR, No. 5:19-CV-289-XR, No. 5:19-CV-184-XR, No. 5:18-CV-949-XR,No. 5:18-CV-712-XR, No. 5:18-CV-881-XR,Civil Action No. SA-18-CV-555-XR,5:18-CV-712-XR
Citation388 F.Supp.3d 777
Parties Jon HOLCOMBE et al., Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Western District of Texas

April A. Strahan, Pro Hac Vice, Robert E. Ammons, The Ammons Law Firm, L.L.P., Mark W. Collmer, Collmer Law Firm, Houston, TX, Daniel D. Barks, Speiser Krause, P.C., Atlanta, GA, for Plaintiffs.

Clayton R. Diedrichs, James Edward Dingivan, U.S. Attorney's Office, James F. Gilligan, Assistant United States Attorney, San Antonio, TX, Paul D. Stern, United States Department of Justice, Washington, DC, for Defendant.

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.

1. Background

These cases stem from the 2017 mass shooting in Sutherland Springs, Texas. On November 5, 2017, Devin Patrick Kelley killed 26 churchgoers and injured 20 more. Among the plaintiffs in these consolidated cases are surviving churchgoers and relatives of those killed. They seek recovery against the United States under the Federal Tort Claims Act. Kelley purchased the firearms he used to kill or injure Plaintiffs and Plaintiffs' family members at an Academy Sports & Outdoors on April 7, 2016. The thrust of this lawsuit is that Kelley should not have been able to purchase these firearms, but failures by the United States Air Force and Department of Defense to collect, handle, and report required information allowed him to do so.

Federal law prohibits certain categories of people from buying firearms. See 18 U.S.C. § 922. Devin Kelley fit several of these categories: he was convicted of a crime punishable by imprisonment of more than one year, he was committed to a mental institution, he was dishonorably discharged from the Armed Forces, and he was convicted of a crime of domestic violence. Yet despite having the duty to process and report this information, the Air Force did not, so when the retailer ran his name through the background check system it learned no disqualifying information. Here, Plaintiffs seek to hold the Government accountable for this failure.

a. Devin Kelly

Devin Kelley entered active duty as an airman with the United States Air Force ("USAF") in January 2010.1 Kelley was initially assigned to an Intelligence Specialist program but was cut from the program due to poor grades. He was transferred to the 49th Logistics Readiness Program. Kelley was stationed at Holloman Air Force Base in Otero County, New Mexico.

Between July 2011 and March 2012, USAF placed in Kelley's file at least four letters of counseling and at least five letters of reprimand. Kelley was known to have made threats against his USAF superiors. Officers were advised that Kelley was attempting to carry out death threats made to his commanding officers. Kelley was known to have attempted to smuggle guns onto a USAF base in violation of base operating procedures and USAF regulations.

On April 12, 2011, Kelley married Tessa K. Loge, who had an infant son from a previous marriage. Loge moved into USAF base housing. Kelley committed acts of domestic violence against Loge and her son. On June 8, 2011, Loge took her son to Gerald Champion Medical Center in Alamogordo, New Mexico because he was vomiting. The attending pediatrician also noticed febrile seizure

and facial bruising. A CT scan revealed a fractured clavicle and subdural hemorrhage. Kelley produced a video confessing to USAF that he caused these injuries, and a Court Martial was convened. The NM Children, Youth, and Families Department took the child into their custody.

During Kelley's pre- and post-trial confinement, USAF placed him on lockdown for suicide risk. While these charges were pending, in spring 2012 USAF involuntarily committed Kelley to Peak Behavioral Health Services, located in Santa Teresa, New Mexico, which has a dedicated unit for U.S. military personnel. As a basis for committing Kelley, USAF noted:

The Evidence shows a serious escalation of behavior involving firearms and threats after the physical abuse of a child. Particularly alarming is his decision to try to obtain another firearm while undergoing inpatient mental health care, conducting research on body armor, and then escaping from the facility late at night without authorization ....
Lesser forms of restraint are inadequate to mitigate the flight risk he poses nor would they prevent him from carrying out the threats that he has made against others, especially given the forethought and planning that he showed by attempting to purchase another firearm and his escape from the mental health facility.

On June 7, 2012, Kelley jumped a fence and escaped from the facility. He was apprehended by local law enforcement personnel, who noted that Kelley was a "danger to himself and others." While a detainee at the facility, Kelley attempted to buy firearms and tactical gear online and have these items shipped to San Antonio, Texas. USAF was aware that Kelley attempted to do so. Kelley threatened that if he were picked up by Security Forces, he would go for their guns. On July 10, 2012, USAF determined that Kelley should be confined while awaiting trial because it was foreseeable that he would not appear for trial or would engage in serious criminal misconduct.

A Court Martial considered charges against Kelley for: fleeing Peak Behavior Health Services Facility; causing physical injury to his stepson; holding a gun to Loge's temple and asking if she wanted to die; and threatening to kill Loge, members of her family, and members of his squadron. Kelley was charged with pointing a loaded gun at Loge and two counts of threatening his spouse with an unloaded firearm. On November 7, 2012, Kelley pled guilty to striking Loge, choking her, pulling her hair, and kicking her and to assaulting his stepson with "force likely to produce death or grievous bodily harm." He was sentenced to 12 months of imprisonment, a bad-conduct discharge, and reduction in rank to airman basic. USAF discharged Kelley with a "bad conduct discharge."

b. Statutory Context

Under federal law, people with certain characteristics cannot buy or own firearms ( 18 U.S.C. § 922(g) ) and dealers cannot sell to those so disqualified ( 18 U.S.C. § 922(d) ). These disqualifying characteristics include, as relevant here, those with a misdemeanor domestic violence conviction, those convicted of a crime punishable by more than a year, those dishonorably discharged from the military, and those involuntarily committed to a mental institution.

The Brady Handgun Violence Prevention Act, passed in 1993, tasked the Attorney General with the establishment of the national instant criminal background check system ("NICS"). See 34 U.S.C. § 40901. The Attorney General delegated this task to the FBI. The FBI, in administering NICS, performs background checks on those who try to buy a firearm from a federally licensed gun dealer. As provided in the Brady Act implementing regulations, when NICS receives a background check request, NICS must respond with "Proceed" (the go-ahead signal), "Denied" (stopping the sale), or "Delayed" (additional information required). 28 C.F.R. § 25.6(c)(iv)(A)-(C).

Federal agencies, including USAF and DOD, are obligated to report disqualifying information to NICS. Federal agencies that have "any record of any person demonstrating" that the person should not be able to purchase a gun "shall, not less frequently than quarterly, provide the pertinent information contained in such record to" NICS. 34 U.S.C. § 40901(e)(1)(C).

This Brady Act reporting requirement and the reporting requirements of various other federal statutes (including the Uniform Federal Crime Reporting Act of 1988 and the Victim's Rights and Restitution Act of 1990) are made DOD policy in Department of Defense Manual 7730.47. Further, Department of Defense Manual 7730.47-M Volume 1, Enclosure 3 implements the policy of Manual 7730-47 and prescribes reporting requirements pursuant to the various federal laws.

This manual sets out a central DOD repository, Defense Incident-Based Reporting System ("DIBRS"), which is to include incidents of domestic violence and criminal data. DOD uses this to transmit reportable crimes to the FBI's databases, which are used in background searches. DIBRS was created because, "[i]n addition to meeting the mandatory statutory requirements, ..... [DOD has] been faced with increasing requests from Congress, the Department of Justice, and other agencies for statistical data on criminal offenses[.]" Manual 7730.47-M Volume 1, Enclosure 3 at 11. "These requests necessitate improvements in the ability of [DOD] to track a crime or incident through the law enforcement, criminal investigation, command action, judicial, and corrections phases." Id.

c. DOD's and USAF's History of Reporting Failure

Despite these federal reporting obligations, as incorporated in and implemented by the DIBRS system, USAF and DOD have consistently mis-or under-reported required information.

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,...

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