Holcombe v. United States
| Decision Date | 06 July 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 |
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.
From April 7, 2021 to April 20, 2021, the Court held a bench trial to resolve disputed issues of fact. This Court relies on the testimony of the witnesses, both live and appearing remotely, as well as the written submissions provided to the Court by agreement of the parties. This Order sets forth the Court's findings of fact and rulings of law on issues relating to liability and causation. See Fed. R. Civ. P. 52(a). The Court will hold a separate bench trial on damages.
1. Devin Kelley committed the Sutherland Springs shooting on November 5, 2017, using firearms he purchased from federal firearms licensees ("FFLs") between December 2014 and October 2017.
2. 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.1
3. 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.
4. Specifically, after investigations by two separate law enforcement units at HAFB—Air Force Office of Special Investigations ("AFOSI") Detachment 225 and the 49th Security Forces Squadron ("SFS")2—Kelley was convicted by General Court-Marial of assaulting his then-wife, Tessa Brennaman, and his stepson, J.L. JEX 20.
5. USAF agents and leadership had an obligation—and multiple opportunities—to ensure that Kelley's fingerprints and criminal history were submitted 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.
6. Plaintiffs filed numerous separate complaints, which for efficiency were consolidated under the above-captioned case, as it was first filed. See ECF No. 9.
7. Plaintiffs asserted negligence claims against the Government pursuant to the FTCA. The FTCA waives sovereign immunity and allows private individuals to sue the federal government for the torts of its employees by granting federal courts exclusive subject-matter jurisdiction over:
civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). The manner in which the complaints depicted the Government's negligence varied slightly, but, collectively, Plaintiffs asserted claims for (1) negligence per se based on violation of the Brady Handgun Violence Prevention Act of 1993, 34 U.S.C. § 40901 (the "Brady Act"), (2) negligent undertaking, (3) negligent training, and (4) negligent supervision. See ECF No. 59 at 8.
8. In November 2018, the Government moved to dismiss on multiple grounds, including that the United States was shielded from liability by Section 922(t)(6) of the Brady Act, and that Plaintiffs had not alleged viable state law causes of action. ECF No. 28.
9. The Court agreed that Plaintiffs could not proceed on a negligence per se theory but rejected all other grounds for dismissal. ECF No. 59. Specifically, the Court held that Plaintiffs could not establish a claim for negligence per se because Texas law did not impose a common-law duty analogous to the Brady Act's reporting requirements. Id. at 29-33. Because the Court concluded that the United States was not entitled to the protections of the immunity provision setforth in Section 922(t)(6) of the Brady Act, the parties proceeded to discovery on Plaintiffs' remaining claims for negligent undertaking, negligent supervision, and negligent training.
10. In August 2020, the parties filed cross-motions for summary judgment on liability. See ECF Nos. 249, 256. The Court issued an order on the parties' cross-motions for summary judgment on January 6, 2021 ("Summary Judgment Order"). ECF No. 318. After clarifying the source of the Government's reporting obligations, the Court held that the Government failed to exercise reasonable care in its undertaking to operate the NICS and to collect and submit Kelley's fingerprints and conviction to the FBI. Id. at 8-20. The Court could not grant summary judgment in favor of either party, however, because it concluded that there were genuine issues of material fact as to whether the Government's negligence increased the risk of harm and proximately caused Plaintiffs' injuries. The Court then dismissed Plaintiffs' claim for negligent training as barred by the discretionary function exception to the FTCA, but held that their claim for negligent supervision survived with respect to the supervisory conduct of AFOSI leadership. Id. at 53.
11. The Government's FBI reporting obligations arise from the Brady Act, its implementing regulations, and instructions promulgated by the Department of Defense ("DoD") and the USAF.
12. The Brady Act requires federal agencies, including the DoD and USAF, to report disqualifying information "not less frequently than quarterly." 34 U.S.C. § 40901(e)(1)(C).
13. 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).
14. 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).3 The DoD and the USAF have issued a series of regulations and directives to carry out their reporting obligations under the Brady Act.
15. 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. JEX 263.
16. 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., JEX 4 (AFOSI Manual 71-121); JEX 11 (Air Force Instruction ("AFI") 31-206); JEX 10 (AFI 31-205).
17. Fingerprints are collected on Form FD-249, which includes a space to record the final disposition of the case. See DoDI 5505.11, JEX 263 at 10-11. If the final disposition is not available when FD-249 is collected and submitted, then an FBI/DoJ Form R-84 ("R-84"), "Final Disposition Report," is required. Id.
18. Generally, DoDI 5505.11 requires law enforcement organizations ("LEOs"), including AFOSI and Security Forces, to submit fingerprints after determining that probable causeexists to believe that a military subject has committed one of certain enumerated offenses, including assault under Article 128 of the Uniform Code of Military Justice ("UCMJ"). Id. at 9.
19. The version of DoDI 5505.11 in effect during the USAF's investigation of Kelley and his subsequent conviction "advance[d] the requirement to submit offender criminal history data to the CJIS Division from the point when charges are referred to an earlier point when an agent or other law enforcement investigator determines, following coordination with the servicing Staff Judge Advocate (SJA) or legal advisor if necessary, that probable cause exist . . . but in no case earlier than apprehension (military), arrest (civilian), or the subject interview."4 Id. at 1.
20. "Probable cause" is defined as "facts and circumstances, more than mere suspicion but less than proof beyond a reasonable doubt, that would lead a reasonable and prudent person to believe a crime has been, is being, or is about to be committed." Id. at 13.
21. After the conclusion of military criminal proceedings, LEOs must submit the final disposition report on Form R-84 to the FBI within fifteen days. See id.
22. Confinement facility personnel are also required to collect and submit fingerprints and final disposition reports to the FBI CJIS Division when they...
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