We at the Doan Law Firm were shocked when we received news of the mass
shooting incident in Sutherland Springs, Texas and we extend our sincerest
condolences to the families that lost loved ones in that senseless act.
In today’s post the personal injury and accident lawyer of our firm
will explain the legal remedies that may be available to victims of gun
violence in the context of the Sutherland Springs church massacre and
the earlier shooting incident at the Route 91 Harvest music concert in
Tort law and gun injuries
In the law of tort, a gun manufacturer can be sued if it can be shown that
the manufacturer, knowingly or unknowingly, produced a defective product.
As far as the law is concerned, the type of product is immaterial and
it only matters that the product was defective and that the defect directly
caused an injury. However, a manufacturer cannot usually be sued for the
later actions of a gun purchaser in the same manner that an automobile
manufacturer cannot be sued for the actions of an intoxicated driver.
In fact, gun and ammunition makers are usually protected by a federal
law known as the Protection of Lawful Commerce in Arms Act (PLCAA).
The Protection of Lawful Commerce in Arms Act (15 U.S.C. §§ 7901-7903)
is intended to insulate firearm and ammunition manufacturers from civil
lawsuits related to the actions of the end-users of their products. In
other words, federal law bars lawsuits against businesses that make or
sell guns and/or ammunition. This protection is not extended if it can
be demonstrated that a manufacturer or gun dealer:
- Sold a defective product, and that defect later caused an injury
- Breached a legally-valid contract
- Knowingly engaged in criminal misconduct
- Failed to conduct the required background check of anyone purchasing a firearm
- That a gun dealer should have had a reasonable expectation that a gun would
later be used to commit a crime
Since federal law takes precedence over any state or local law, suing a
gun manufacturer or gun dealer would be very difficult. This leaves the
gun owner as the only potential defendant in most civil lawsuits involving
gun deaths or injuries. There is also a second federal law that restricts
legal ownership or purchase of firearms.
The “Brady Law” (18 U.S.C. §§ 921-922), is a federal
law mandating that certain individuals cannot legally purchase or own
a firearm. The law specifically requires a background check and waiting
period before a firearm can be purchased and identifies several categories
of individuals who are prohibited from owning or possessing guns. Among
those who cannot purchase or possess a firearm are:
- Anyone who has been convicted or pled guilty to a crime for which the punishment
could have been imprisonment for a period exceeding one year (felony).
- Anyone who has been judged to be mentally incompetent or who has been treated
for some form of mental illness.
- Anyone who has been discharged from the armed forces under dishonorable
- Anyone under a personal restraining order.
- Anyone under a personal restraining order.
- Anyone who has been convicted of domestic violence against a spouse or a child.
In the Las Vegas incident that left 58 people dead and over 500 injured
the shooter, Stephen Paddock, legally purchased several firearms over
a 2 to 3-year period. Although there are reports that Paddock was experiencing
mental health issues, he had never been treated for those alleged issues
and was thus not barred from firearm purchase under the Brady Bill. The
situation of the Sutherland Springs shooter, Devin Kelley, is more complex.
According to news sources, Kelley had been involved in a domestic violence
incident while he was on active duty in the U.S. Air Force and was sentenced
to a bad conduct discharge, stockade confinement for 12 months, and a
reduction in rank. Although different sources are contradictory in the
type of discharge and term of imprisonment Kelley received, he should
have been barred from purchasing firearms and should have been listed
in the national firearm purchase database as being disqualified from purchasing
any type of firearm.
In the Sutherland Springs shootings, various sources have reported that
Kelley purchased firearms in Colorado and Texas despite being ineligible
to do so under the restrictions of the Brady Bill. This raises the question
of why his previous conviction on a domestic violence charge did not appear
when the gun dealer ran the requisite background check.
The most likely explanation is that 1) Kelley lied about his previous record
when he filled out the required questionnaire and 2) the Air Force failed
to enter Kelley into the national database as required by law. If the
latter is the case, then the Air Force would be liable for the tort of
negligence and could be sued in federal court. Admittedly, this question
is still under active investigation but early reports seem to suggest
that his conviction went unreported to the national database.
Liability regarding gun violence
Sadly, mass shooting incidents appear to be an ongoing problem in the United
States despite restrictive gun control laws at the federal, state, and
local levels. However, such laws are ineffective if the criminal records
of prospective gun purchasers are not immediately available to gun dealers.
In the Sutherland Springs case, it appears that the Air Force was negligent
if it failed to report Kelley’s conviction on a charge that would
have disqualified him from making gun purchases.
Federal and state firearms laws can be complex and are best explained by
a personal injury and accident lawyer. The Doan Law Firm encourages
anyone who has been injured in a firearms incident or lost a family member to
gun violence to contact our personal injury lawyer to arrange a free consultation
to evaluate the specific details of their case and to explore any legal
options that might be available in their individual cases.