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 Las Vegas.
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 conditions.
- 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.