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Von Lossberg v. State: State Liability for Gun Suicides & the Background Check System

By on June 8, 2022 Categories: , ,

The Idaho Supreme Court recently held that the state could be held liable in a wrongful death action for negligently failing to add a name to the database used in gun purchase background checks.  In Von Lossberg v. State, the parents of a young man who committed suicide with a gun sued the state, the state police, and the private vendors who provided the technology involved to the state.  The victim had been the subject of an involuntary commitment for mental illness in late 2016, and the state hospital where he received treatment had discharged him at the end of December that year.  Five weeks later, he purchased a semiautomatic pistol from a pawn shop and used it to commit suicide.  

The victim should not have been able to pass a background check to purchase the gun, because he was a disqualified person under 18. U.S.C. § 922(g)(4). On his background check form, the victim had falsely (or incorrectly?) answered the question about whether he had ever been involuntarily hospitalized for mental health treatment – note that this is a “Y/N” checkbox on the form.  Even so, if his name had been in the database, as it should have been, he would not have been able to pass the background check and consummate that purchase.  Unfortunately, due to some systemic failures in the State’s case management system, the various state agencies involved had not reported the victim’s name and involuntary hospitalization status to the National Instant Criminal Background System (the “NICS”), which they were supposed to do under state law.  For those interested in the mechanics of how the background check system works on the input side, the following explanation from the court is informative:

…[W]hen the State of Idaho processes an order of commitment, it must send the order to a message server known as the “Message Switch.” From there, the orders are processed and delivered to the Idaho State Police and then the NICS. The State of Idaho contracts with Computer Project of Illinois, Inc. (“CPI”), to process and deliver these orders from the Message Switch to the State, the ISP, and the NICS. However, the Von Lossbergs allege that CPI’s system contained a known failure that would not recognize “the naming conventions and document format used by the State of Idaho and Tyler [Technologies] for Bryan’s Order of Commitment.” Consequently, Bryan’s order was never processed or transferred to the NICS database.

All the defendants in the case moved for dismissal of the claim.  The state and the state police claimed statutory immunity from tort actions under the Brady Handgun Violence Prevention Act, 18 U.S.C. § 922(t)(6). The district court agreed and dismissed the case, and the victim’s parents appealed.

The Idaho Supreme Court reversed and remanded the case for further proceedings.  Carefully parsing the words of the Brady Act, the Court concluded that the immunity applied only to local governments and the employees of federal, state, and local government – but not to a state or state agencies themselves.  Side note: the state had not invoked sovereign immunity as a defense, but only statutory immunity under the Brady Act, and the Court explains the only question on appeal is Brady Act immunity, not sovereign immunity (it suggests it is unclear whether the state at this point has waived sovereign immunity by not raising it initially).  The court relied not only on the statute itself, but also a pair of 2019 cases from other courts: Holcombe v. United States and Sanders v. United States, which held that the Brady Act immunity provisions do not apply to the federal government itself.  Included in the Court’s reasoning is a reference to the traditional canon of construction expressio unius est exclusion alterius (“the expression or inclusion of one thing implies the exclusion of others”). 

As Ian Ayers and Fred Vars have argued in their book Weapon of Choice (and also in a series of articles and presentations), background check denials for suicidal individuals can save thousands of lives – many suicidal urges are temporary, so if the person cannot buy a gun the day they feel that suicidal impulse, there is a reasonable chance they never will.  If Mr. Von Lossberg had been turned away from the pawn shop and had to search for and negotiate with a private seller in order to acquire a gun, the hassle and time involved in doing so might very well have been too daunting for someone suffering from severe mental illness, who had only recently been discharged from a mental hospital. If Mr. Von Lossberg had tried to commit suicide by some other means, statistically he was very likely to have survived, whereas suicide attempts with guns are nearly always fatal (Ayers and Vars cite empirical studies demonstrating this inverse relationship).

From a policy standpoint, I think this case, along with Holcombe and Sanders, are positive steps.  The background check system is only as effective as the comprehensiveness or completeness of its database, and for decades, various government entities have been negligently (or intentionally) slow to cooperate and contribute names, and at other times sloppy about it – meaning individuals who are not supposed to have guns (according to statute) are able to pass background checks and acquire them, often with fatal consequences. The threat of liability should help incentivize not only the State of Idaho, but other states and federal agencies, to step up their efforts to submit names to the NICS system that are supposed to be in the database.