What did police not see?

An interesting case was mentioned on the ABA Journal’s website recently.  The case concerns litigation against the US Federal government for failing to identify that the perpetrator of the Charlestown massacre was not able to purchase a firearm.

The article notes that

A federal appeals court has ruled that the federal government can be sued for failing to uncover information about the Charleston, South Carolina, church shooter during a background check that would have barred him from being able to buy a gun from a licensed dealer before the mass shooting. …

The review was run by the FBI’s National Instant Criminal Background Check System. … The government reviewer contacted the wrong police department for records of Roof’s arrest because of a misstatement in a government database. …

If the government reviewer had been using discretion and decided against obtaining the arrest report, the government would be immune, the 4th Circuit said. But the examiner instead was required to get the report from the arresting agency under internal operating procedures that remove any discretion from reviewers. “The government can claim no immunity in these circumstances,” the 4th Circuit said.

This poses an interesting light on the broad principle that the state has only a limited duty to detect and prevent crime.  The law has traditionally been unwilling to be an armchair-quarterback to decisions made by police in exercising their discretion as to discharging their role: see Hill v Chief Constable of West Yorkshire [1989] AC 53.  In this case, however, there was expressly no discretion and so the failure by the reviewer would have lacked a common law immunity.  As a result, one can infer that the more prescriptive a government (or police force) is about its members’ duties, the less likely it is that a court may need to adopt the wide approach to liability taken by (say) South African law in Van Eeden v Minister of Safety and Security, 2003 (1) SA 389 (SCA).

The Fourth is not with you

One of the more difficult parts of a personal injury lawyer’s job is explaining to the victim of tragedy that they don’t have a case.  The Fifth Circuit of the US Court of Appeals has to do the same thing.

On 21 January 2015 John Gorman was undertaking firearms training connected with his work for the Mississippi Gaming Commission.  Fellow instructor Robert Sharp forgot to replace his own real firearm with a dummy firearm.  In the course of training he shot Gorman in the chest causing fatal injuries.

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Image from here

Gorman’s widow sought compensation from Sharp on the grounds that he had violated the American Constitution’s Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….

Sharp’s application to dismiss the proceedings was denied by the US District Court: Gorman v State of Mississippi, 258 F.Supp.3d 761 (2017).  He appealed to the Fifth Circuit Court of Appeals.

The appeal was upheld.  Existing case law had consistently said that there is no liability under the Fourth Amendment absent deliberate and intentional conduct.  In this case it was undisputed that Sharp genuinely believed he was using a dummy firearm and had not shot Gorman wilfully.  The court observed sadly that –

The circumstances that led to this lawsuit are unquestionably tragic — an accidental fatal shooting during an officer training session. But the Constitution does not afford a cure for every tragedy.

The District Court’s decision was reversed.  It was noted that the plaintiff was also pursuing a claim in State law.

Gorman v Sharp (2018), US Fifth Circuit Court of Appeals, 6 June 2018.