David J. Phillip/AP Photo Law And Order The Texas Shooting Victims Should Sue the U.S. Government. They'd Win.

John Culhane is professor of law and co-director of the Family Health Law and Policy Institute at Widener University Delaware Law School. Follow him on Twitter.

The devastation wrought by all-too-regular mass shootings leads to immediate and predictable calls for “thoughts and prayers” for the victims. But what about compensation for the harm suffered? Unfortunately, that is one area in which U.S. law is inadequate, often preventing any kind of redress for the victims.

But that’s not so in the recent case out of Texas. The federal government could be—and should be—on the hook for personal injury and wrongful death damages. The Air Force’s unexplained and appalling failure to enter the shooter’s domestic-violence conviction into a national database that would have prevented him from obtaining a firearm is actionable.


In most cases of death-by-firearms, victims have no practical redress. The shooter, who’s the most obviously culpable actor, is usually either dead or broke. Depending on the facts of a given case, there might be a claim against those who manufactured or sold the weapon used in the killing, but victims would have a better chance against the seller of an ax than against a gun seller. That’s because of the Protection of Legal Commerce in Arms Act , a federal law that, with a few exceptions, rules out claims against those who sell guns and ammunition. So, there’s virtually no accountability anywhere in the system, and victims are left to whatever insurance they might have and to local crime compensation funds, which are typically limited in the amount of money recoverable. Sometimes, there’s also a private, charitable fund for victims of high-profile shootings, most recently including the Las Vegas massacre.

This case, however, is different. Victims—the injured survivors and the family members of those killed—may have a claim against the U.S. government for what seems like the plain negligence, or worse, of whoever failed to enter Texas shooter Devin Patrick Kelley’s name into the federal crime database—a listing that would have made him ineligible to buy a gun. The PLCAA doesn’t protect the government, since it applies to only gun and ammo sellers. So we’re left with the Air Force’s carelessness, which led to the murderer’s ability to purchase and use a weapon he had no right to possess.

Admittedly, it’s hard to sue the government because of the doctrine of sovereign immunity, which establishes that the government can’t be sued for the consequences of its actions. But the Federal Torts Claims Act creates a huge exception to this general rule. While the government can’t be sued for discretionary, policy decisions, the FTCA waives sovereign immunity to allow injured parties to sue for garden-variety negligence—like the careless driving of a government worker that causes an auto accident, or, as here, someone’s heedless failure to take a simple, ministerial step that the law required. This is just the kind of case that the FTCA was designed to cover.

Clearing the sovereign immunity hurdle is just step one, though. The injured parties can’t go directly to court; they first need to bring an administrative claim against the appropriate party (here, the Department of the Air Force). The successful claimant will collect damages and need proceed no further. If the claim is denied at the administrative level, the claimant can take the government to federal trial court. The judge will apply the law of the state where the tort took place—in this case, Texas. There can be both statutes and common law (judge-made) rules in play, and the federal court has to interpret the laws just as the state courts would do.

The law that applies to the cases of those who died in the massacre in the Texas church will be the wrongful death statute. Like most other states, Texas spells out a specific, and narrow, class of people who are entitled to bring suit under the statute. Only the parents, spouse and children of the decedent can sue. Even if others, like siblings, long-term partners and grandparents could show damages, they’re ruled out of the suit from the get-go. This restriction looks especially painful in this case, where most of a multigenerational family was wiped out. Joe and Claryce Holcombe have no claim for the death of their grandchildren or great-grandchildren.

Texas is more generous than some states, though, in a different way: There’s no limitation on the kinds of damages that can be recovered—meaning that, often, the surviving family member can get damages for intangible losses, like loss of companionship and mental suffering. (Tangible damages, recoverable in every state, would include the loss of any financial support that the plaintiff might reasonably have expected from the decedent.)

But in order to get to an award of damages, the claimants first have to satisfy the elements of a negligence claim: that the defendant owed them a duty; that the duty was breached; and that the breach caused their injury or death. Here, the success of both the injured parties and the wrongful death plaintiffs will hinge on whether the judge believes the Texas Supreme Court would find these requirements met. That court is notoriously unfriendly to tort victims, so it’s impossible to know how this will turn out.

The case here is very strong, though. First, the plaintiffs will have to establish that the Air Force owed a duty to the victims of the shooter to act responsibly and follow a simple reporting rule that might have prevented their deaths. That shouldn’t be difficult. Generally, defendants owe a duty to the foreseeable victims of their misconduct. Specifically, in this case, that duty is likely the main reason for the reporting requirement in the first place. The second standard—breach of duty—seems crystal clear. So that leaves the plaintiffs to establish a causal connection between the Air Force’s blunder and the massacre that ensued in this particular case. The government might try to argue that the shooter would have found some other way to get a gun even if he’d been properly entered in the database. In a gun-happy state like Texas, that’s a plausible argument. But the government should lose on it. While it’s impossible to know what might have happened had the government done what it was supposed to do, the judge should presume it would have made a difference in this case, and put the burden of proof on the defense to show it didn’t matter. That’s the only way to effectively deter this kind of awful misconduct, with tragic results, going forward.

Better yet, Congress should straightforwardly acknowledge the government’s fault here and pass specific legislation entitling the victims to compensation outside of the judicial process, along the lines of the September 11 Victim Compensation Fund. I’ve criticized that fund for making tort-like payments, at taxpayer expense, in a case in which the government wasn’t at fault. Here, though, the government almost surely was at fault. Lawmakers should allow the victims to recover what they might have gotten in a claim under the FTCA, according to a generous compensation schedule. They should also broaden the class of claimants to include folks like the Holcombes. That’s the easiest, and the fairest, thing to do in this case. Victims shouldn’t have to multiply their pain by slogging through what would surely be a painful case, leading to no certain outcome.

