Supreme Court of Texas, No. 19-0497 (June 25, 2021)
In November 2017, Devin Kelley shot 25 people to death, and wounded 20 more, in the First Baptist Church in Sutherland Springs, Texas. Kelley wielded a semi-automatic assault rifle he purchased from an Academy Sports store in San Antonio. Academy sold the rifle as part of a pre-packaged unit that included a 30-round large-capacity magazine (“LCM”), with a single SKU number and a single price for all components in the package. Kelley should not have been able to purchase the rifle, because he had been convicted of domestic assault in a military court-martial. But the Air Force failed to have that disqualifying conviction information entered on the Criminal Background Check System, and so that system green-lighted the sale when Academy ran the required check. The survivors and families of the victims of the shooting argued the sale shouldn’t have happened for a second reason: Kelley was a Colorado resident, and Colorado prohibits LCMs like that sold as part of the package bought by Kelley. In fact, another retailer—Dick’s Sporting Goods—had previously refused to sell to Kelley. But Academy interpreted the laws to allow this sale in Texas. So, Kelley got his gun. Survivors and families of victims sued the government in federal court for failing to enter the shooter’s conviction information on the background-check system. Holcombe v. United States, No. 5:18-cv-00555-XR (W.D. Tex.). And they sued Academy in state court for selling the gun-and-LCM package to the shooter, an out-of-state resident.
In the state court case, Academy moved for summary judgment under the federal Protection of Lawful Commerce in Arms Act (“PLCAA”), which protects firearms retailers and manufacturers from certain claims arising out of the criminal conduct of gun purchasers. The trial court denied summary judgment, and the Fourth Court of Appeals refused to disturb that ruling. But the Texas Supreme Court granted mandamus and overturned that decision, finding the PLCAA did in fact bar the plaintiffs’ lawsuit against Academy.
The Court rejected the plaintiffs’ arguments that their case fell within either of two exceptions to the PLCAA. First, the Court held the sale did not run afoul of the federal Gun Control Act, violation of which would fall within the “predicate exception” to the PLCAA. The Gun Control Act prohibits sales to out-of-state buyers unless “the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States,” i.e., the state of sale and the state of the purchaser’s residence. There was no dispute it would not have been legal in Colorado for Kelley to buy the package he bought from Academy, containing the 30-round LCM. The Supreme Court, however, ruled that the Gun Control Act addressed only sales of “firearms” but not LCMs—even though, in this instance, the pre-packaged unit bought by the shooter contained both, and there could have been no “sale” of the “firearm” without the LCM. Second, it rejected application of the PLCAA exception for “negligent entrustment” claims, ruling that Texas does not recognize a claim for negligent entrustment based on the sale of a chattel, as opposed to temporary entrustment where the owner retains ultimate control. Finally, the Court concluded mandamus was appropriate because the PLCAA protected gun retailers and manufacturers from being subjected to lawsuits, rather than merely providing them a defense from liability—something that could have been addressed on appeal from a final judgment, rather by mandamus.
For those disappointed Academy claimants who are also plaintiffs in the Holcombe lawsuit against the government, there may be a small silver lining in the Supreme Court’s decision. The government has designated Academy a “responsible third party” in that case, seeking to have the court allocate some of the responsibility for the shooting to Academy, based on the government’s contention that Academy did in fact violate federal and Colorado gun laws. If such responsibility were assigned to Academy, that would reduce the government’s own liability to the plaintiffs and, with it, the plaintiffs’ potential recovery. Now, however, there’s a chance the trial court in Holcombe will strike the designation of Academy as a responsible third party, based on the Texas Supreme Court’s decision. That, however, remains to be seen.
