Holcombe v. United States
| Decision Date | 06 January 2021 |
| Docket Number | Civil Action No. SA-18-CV-555-XR |
| Parties | JOE HOLCOMBE ET AL., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Western District of Texas |
Consolidated Cases
On this date, the Court considered (1) Plaintiffs' consolidated motion for partial summary judgment (docket no. 249), the Government's response (docket no. 265), and Plaintiffs' reply (docket no. 275); (2) a separate motion for partial summary judgment filed by certain Plaintiffs represented by Brett Reynolds (the "Reynolds Plaintiffs")1 (docket no. 308), the Government's response (docket no. 314), and the Reynolds Plaintiffs' reply (docket no. 316); and (3) the Government's motion for summary judgment (docket no. 256), Plaintiffs' response (docket no. 264), and the Government's reply (docket no. 273). Although the parties filed separate motions for summary judgment, there is significant overlap among the arguments made in the motions and accompanying responses. Accordingly, the Court will address the motions together. After careful consideration, the Court issues the following order.
These consolidated cases stem from the mass shooting at the First Baptist Church in Sutherland Springs, Texas on November 5, 2017. The shooter, Devin Patrick Kelley ("Kelley"), entered the church and opened fire, killing 26 people and wounding 22 more. After fleeing the scene, Kelley later died from a self-inflicted gunshot wound. Plaintiffs are survivors of the shooting and relatives of those injured or killed. They seek recovery against Defendant United States ("the Government") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. The thrust of these lawsuits is that Kelley should not have been able to purchase the firearms he used in the shooting, but negligent failures by the Government to collect, handle, and report required information about Kelley allowed him to do so.
Kelly committed the shooting using firearms he purchased from federal firearms licensees ("FFLs") between December 2014 and October 2017. In four separate firearms purchases, Kelley completed the required purchasing form—ATF Form 4473—certifying that he was eligible to purchase the firearm under federal law, and the retailer ran the mandatory background check through the National Instant Criminal Background Check System ("NICS") administered by the FBI. In each instance, the response from the NICS was that the retailer could proceed with the sale. Kelley should not have cleared the background check, however, because he had been convicted of a disqualifying offense in November 2012 while he was serving in the United States Air Force ("USAF") at Holloman Air Force Base ("HAFB") in New Mexico. Specifically, Kelley was convicted by General Court-Marial of assaulting his then-wife, Tessa Kelley, and his stepson. The USAF had an obligation—and multiple opportunities—to submit Kelley's fingerprints and criminal history to the FBI's Criminal Justice Information Services ("CJIS") Division for inclusion in its databases. Its failure to do so is the basis for this action.
On June 8, 2011, Tessa Kelley took her infant son to the emergency room because he was vomiting. The pediatrician who examined him noticed facial bruising, and, after testing revealed a fractured clavicle and subdural hemorrhage, reported the injuries as suspected child abuse. The next day, the Air Force Office of Special Investigations ("AFOSI") Detachment 2253 initiated an investigation of Devin Patrick Kelley for assault on a child. After interviewing Kelley, special agents took two sets of fingerprints and placed them in his investigative file.
On February 17, 2012, while the AFOSI investigation for child abuse was still ongoing, the 49th Security Forces Squadron4 opened an investigation of Kelley for assault after Tessa Kelley reported that he had been physically and emotionally abusing her since July 2011. Security Forces attempted to interview Kelley, but he requested legal counsel and refused to make a statement. There is no evidence that Security Forces collected Kelley's fingerprints during the interview. Citing anger and depression because of his wife's accusations, Kelley was voluntarily admitted to Peak Behavioral Health Services (the "Peak"), where he remained from February 23, 2012 until March 8, 2012.
Later that spring, Kelley admitted to Tessa Kelley that he had abused her son and caused the injuries that led to his hospitalization in 2011. He eventually filmed a video confession, which Tessa Kelley provided to the USAF on April 29, 2012. The next day, Kelley voluntarily entered in-patient treatment at the Peak for the second time.
On June 7, 2012, Kelley jumped a fence and escaped from the facility. He was apprehended by local law enforcement personnel, who returned him to the Peak. The next day, he was discharged from the Peak and entered pretrial confinement. In his order approving pretrial confinement, Kelley's Commander noted that, while he was at the Peak, Kelley had attempted to buy firearms and tactical gear online and have these items shipped to San Antonio, Texas. Kelley threatened that if he were picked up by Security Forces, he would "go for their guns." The Commander concluded that Kelley was "dangerous and likely to harm someone if released."
On November 7, 2012, after entering a guilty plea, Kelley was convicted in General Court-Martial proceedings of assault on his wife and stepson. He was sentenced to 12 months of imprisonment, a bad-conduct discharge, and reduction in rank to airman basic. He was confined at HAFB, and later transferred to Naval Consolidated Brig, Miramar, California.
On December 14, 2012, AFOSI Detachment 225 received the Report of Result of Trial, which documented the result of the General Court-Martial. On the same day, the AFOSI Detachment 225 special agent in charge ("SAIC") certified on the closing checklist in the Investigation and Information Management System ("12MS") electronic file that Kelley's fingerprints and final disposition information had been submitted to the FBI's CJIS Division, though they had not. This permitted the SAIC to close the investigation.
After his release from confinement on March 31, 2013, Kelley was permanently barred from HAFB at the request of Commander Robert Bearden, who cited Kelley's threats to kill leadership, his escape from the Peak, and Internet searches for body armor and guerrilla tactics as evidence that he was a security threat. The appeals court upheld Kelley's conviction, and he was officially separated from the USAF with a bad conduct discharge on May 8, 2014.
The Government's FBI reporting obligations arise from the Brady Handgun Violence Prevention Act of 1993, 34 U.S.C. § 40901 (the "Brady Act"), its implementing regulations, and instructions promulgated by the Department of Defense ("DoD") and the USAF. The Brady Act requires federal agencies, including the DoD and USAF, to report disqualifying information to NICS "not less than quarterly." 34 U.S.C. § 40901(e)(1)(C). Disqualifying information includes "any record of any person demonstrating that the person falls within one of the categories" of persons prohibited from purchasing firearms described in Section 922(g) of the Gun Control Act of 1968. 18 U.S.C. § 922(g). Section 922(g), in turn, prohibits the possession or purchase of firearms by certain categories of people, including those who have been:
18 U.S.C. § 922(g)(1), (4), (6), (9). The DoD and the USAF have issued a series of regulations and directives to carry out their reporting obligations under the Brady Act.
DoD Instruction ("DoDI") 5505.11, entitled "Fingerprint Card and Final Disposition Report Submission Requirements," outlines the procedures for submitting fingerprint cards and final disposition reports to the FBI's CJIS Division. Docket no. 250, Ex. U-6 at 16-28. The AFOSI and Security Forces have, in turn, issued their own instructions and policies for submitting fingerprints and criminal history information to the FBI based on the requirements set forth in DoDI 5505.11. See, e.g., AFOSI Manual 71-121 (docket no. 250, Ex. U-2); Air Force Instruction("AFI") 31-206 (id., Ex. U-3 at 4-16); and AFI 31-205 (id., Ex. U-3 at 17-20). Generally, DoDI 5505.11 requires law enforcement organizations ("LEOs"), including AFOSI and Security Forces, to submit fingerprints after they decide that probable cause exists for the commission of certain enumerated offenses, including assault. Id., Ex. U-6 at 25. Then, after the conclusion of military criminal proceedings, LEOs must submit the final disposition report to the FBI within fifteen days. See id. Confinement facility personnel are also required to collect and submit fingerprints. See id., Ex. U-3 at 18-20.
The information sent to the FBI gets entered into one of three databases: (1) the Interstate Identification Index (the "III" or "triple-I"), which accesses criminal history records through fingerprint data; (2) the National Crime Information Center ("NCIC"), which contains information on wanted persons, protection orders, and other persons identified as relevant to NICS searches; and (3) the NICS Indices, which were created for the purpose of performing a NICS background check and contain records provided by local, state, and federal agencies concerning prohibited persons under federal law that may not be appropriate for submission to the NCIC or the III. See Nat'l Rifle Ass'n v. Reno, 216 F.3d 122, 125 (D.C. Cir. 2000); 28 C.F.R. § 25.6(c)(1)(iii); docket no. 250, U-12 at 16 n.52.
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