Can Mass Shooting Victims Sue the United States?

Can Mass Shooting Victims Sue the United States?

Legal Sidebari

Can Mass Shooting Victims Sue the United
States?
October 17, 2019
Several weeks after the police arrested Dylann Roof for unlawfully possessing a controlled substance,
Roof tried to buy a semiautomatic handgun. Under existing law, this previous arrest should have
disqualified Roof from obtaining that weapon. However, the FBI—by its own admission—committed
oversights while performing Roof’s background check. As a result, Roof successfully purchased the
firearm despite his prior arrest. Roof then killed nine people with that handgun in a racially motivated
attack on a South Carolina church.
Several of Roof’s victims (or their estates) sued the United States, seeking to hold the federal government
liable for failing to prevent Roof from purchasing the firearm he used in the shooting. In its August 30,
2019 opinion in Sanders v. United States, the U.S. Court of Appeals for the Fourth Circuit (Fourth
Circuit) rejected the United States’s request to dismiss the victims’ case. Sanders may be significant to
Congress not only due to the national attention surrounding Roof’s case, but also because the litigation
implicates broader debates over when—and subject to what conditions—a private party may sue the
federal government. This Sidebar describes the statutes and legal principles governing when a plaintiff
may pursue tort litigation against the United States, explains how the Sanders court applied those laws
and doctrines, and identifies potential considerations for Congress.
Sovereign Immunity and the Federal Tort Claims Act
The doctrine of sovereign immunity ordinarily bars private parties from suing the United States without
the government’s consent. To enable persons injured by the federal government to obtain recourse,
however, Congress has waived the United States’s immunity from certain lawsuits. For example, the
Federal Tort Claims Act (FTCA) enables plaintiffs to pursue certain state law tort claims against the
federal government. For instance, a plaintiff injured by a federal employee’s negligence can potentially
sue the United States to obtain compensation.
However, the FTCA’s waiver of sovereign immunity is subject to numerous conditions and limitations.
Of particular relevance here, Congress decided to preserve the United States’s immunity from certain
categories of tort lawsuits that, in Congress’s view, would inappropriately require judges to engage in
“‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political
policy.” To that end, 28 U.S.C. § 2680(a)—also known as the “discretionary function exception”—bars
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any FTCA claim based on either (1) “an act or omission of an employee of the Government” undertaken
“in the execution of a statute or regulation” or (2) “the exercise or performance” of a “discretionary
function or duty” (including “the failure to exercise or perform” such a function or duty). According to the
Supreme Court, the discretionary function exception thereby “protect[s] the Government from liability
that would seriously handicap efficient government operations.”
Section 2680(a) does not define the term “discretionary function or duty.” Courts have developed a two-
part inquiry for determining whether the discretionary function exception forecloses a particular FTCA
suit. First, the court must assess whether the case involves discretionary conduct—that is, whether the
government employee who allegedly injured the plaintiff engaged in conduct that involved “an element of
judgment or choice.” Courts usually presume that a federal employee’s conduct qualifies as discretionary
unless a federal law or policy specifically prescribes a course of action the employee must follow.
Second, courts evaluate whether the employee’s conduct was policy-driven—that is, whether the
plaintiff seeks to hold the United States liable for a legislative or administrative decision rooted in social,
economic, or political considerations. If the answer to both questions is yes, then the case cannot proceed.
Sanders v. United States
The Sanders plaintiffs, invoking the FTCA’s waiver of sovereign immunity, sued the United States under
South Carolina tort law for allegedly failing “to prevent Roof from purchasing the firearm he used in the
shooting.” The plaintiffs claimed that if the FBI had properly performed its background check on Roof, he
would not have obtained the handgun he used to commit his crimes. They specifically alleged that the
background check was deficient in three respects:
1. The employee who performed the background check did not contact the police
department that arrested Roof to request documentation regarding his arrest;
2. The FBI failed to give its employees access to a law enforcement database that contained
information that would have disqualified Roof from buying the weapon; and
3. The government failed to maintain the integrity of certain data in its information systems.
Although the United States argued that the discretionary function exception categorically barred the
lawsuit, the Fourth Circuit disagreed. The court reasoned that the government could not satisfy the first
prong of the exception’s two-part test because a federal policy commanded FBI employees to undertake a
specific course of action when conducting background checks. Specifically, the Fourth Circuit observed
that the FBI’s Standard Operating Procedures (SOPs) directed the FBI employee handling Roof’s
background check to contact the police department that arrested him to obtain additional information. The
court construed that requirement as a mandatory directive that left no room for individual discretion.
Because an FBI employee allegedly ignored that non-discretionary requirement, the court concluded that
the discretionary function exception did not bar the plaintiffs from pursuing a tort claim based on the
FBI’s alleged failure to abide by the SOPs.
At the same time, however, the court also ruled that the discretionary function exception barred the
plaintiffs’ second claim that the FBI should have granted its employees access to the database that
contained disqualifying information about Roof’s arrest. The court reasoned that agency decisions
regarding which databases to provide to employees “involve[] ‘an element of judgment’” and are
therefore the sorts of decisions “that the discretionary function exception was designed to shield.” The
court similarly concluded that the plaintiffs could not pursue their third claim that the United States failed
to maintain the integrity of data in its systems.
Judge G. Steven Agee filed a dissenting opinion disputing the majority’s conclusion that the SOPs left the
investigating employee no discretion regarding whether to perform additional research into the factual
circumstances surrounding Roof’s arrest. Judge Agee also expressed concern that the majority’s ruling to
the contrary would “effectively subject the Government to per se liability for every act of negligence by a

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Government actor.” According to Judge Agee, “the question of whether an examiner should keep
pursuing an investigation . . . is fundamentally grounded in the question of how to most effectively utilize
limited agency resources”—a policy-laden decision that Congress intended the discretionary function
exception to protect. Thus, argued Judge Agee, “imposing liability here could hamstring the proper
delivery of a Government service in a key area of public safety.”
The Sanders opinion does not guarantee that the plaintiffs will ultimately recover compensation from the
federal government. Given the procedural posture of the appeal, the Fourth Circuit only resolved whether
the government was categorically immune from the plaintiffs’ claims; it did not consider whether those
claims had legal merit. For example, the court did not address the government’s argument that South
Carolina tort law imposes no legal duty to protect others from violent crimes committed by third parties.
Instead, the Fourth Circuit remanded the case to the district court, where the parties will continue to
litigate whether the plaintiffs are entitled to monetary damages.
Considerations for Congress
The dueling majority and dissenting opinions in Sanders reflect that evaluating whether the discretionary
function exception forecloses a given FTCA claim is not always straightforward, and that judges
sometimes disagree over whether the exception applies. Notably, the Supreme Court has opined that it is
“impossible to define with precision every contour of the discretionary function exception,” and other
courts have remarked that it is difficult to “chart[] a clear path through the weaving lines of precedent
regarding what decisions are susceptible to social, economic, or political policy analysis.” While the task
of articulating the exception’s boundaries has primarily fallen to the courts, Congress could clarify the
exception’s scope and applicability to reduce judicial disagreement and produce more predictable results.
That said, legislative intervention might also reduce the judiciary’s flexibility to adapt the discretionary
function doctrine to unforeseen factual circumstances.
Some Members of recent Congresses have introduced legislation proposing to supplement or modify the
FTCA’s definition of “discretionary function.” A section of the ACCESS Act (H.R. 1326, 116th Cong.),
for example, would specify that “[f]or purposes of [the FTCA], any action by an agent or employee of the
United States to manage or allow the use of Federal land for purposes of target practice or marksmanship
training by a member of the public shall be considered to be the exercise or performance of a
discretionary function.” This provision, along with 28 U.S.C. § 2680(a), would thereby immunize the
federal government from tort claims arising from such training activities. The No Exemptions for EPA
Act of 2015 (H.R. 3531, 114th Cong.), by contrast, would have expanded the government’s potential
liability by rendering the discretionary function exception inapplicable to FTCA cases involving actions
taken “in connection with a response under the Comprehensive Environmental Response, Compensation,
and Liability Act.”
Sanders also implicates questions regarding the proper mechanism for compensating victims of mass
tragedies. The FTCA—at least when the government is in some way responsible for the victims’
injuries—contemplates that victims’ claims will be resolved through formal litigation (subject to a
requirement that those victims first afford the United States an opportunity to settle the claim before a
lawsuit begins). While litigation in federal court has advantages, such as oversight by an impartial judicial
officer and the opportunity for appellate review of erroneous rulings, it can also be time-consuming and
expensive for the victims and the United States alike.
In other contexts, by contrast, Congress has provided that victims of mass tragedies may receive
compensation through a fund without the expense and inconvenience of pursuing a formal lawsuit. For
instance, Congress established the September 11th Victim Compensation Fund (VCF) to compensate
persons injured or killed in the September 11th attacks. Obtaining compensation from the VCF may be
less onerous than litigating an adversarial lawsuit. However, a Special Master rather than a life-tenured
federal judge makes VCF award determinations, which are “final and not subject to judicial review.”

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Thus, whenever Congress makes money available to persons injured or killed under tragic circumstances,
it may consider whether to require those persons to obtain the money through full-fledged litigation—or,
alternatively, through less formal procedures.

Author Information

Kevin M. Lewis

Legislative Attorney

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