Plaintiff shot by federal employee using agency-issued gun can sue U.S. government.

The Ninth Circuit Court of Appeals has held that a woman who was shot by a federal employee who used a gun issued to him by the U.S. government can sue the federal agency under the Federal Tort Claims Act (FTCA). (Vickers v. United States, 228 F.3d 944 (9th Cir. 2000).)

The employee, Akanni Kendalla, worked as a guard at a detention center operated by the U.S. Immigration and Naturalization Service (INS). After a domestic argument, he allegedly used his INS-issued revolver to shoot his ex-wife. She filed suit against the INS, claiming that the agency was negligent in supervising and retaining Kendalla as a detention officer. She also contended that the INS had negligently failed to investigate an earlier incident in which he had used his gun to shoot a former girlfriend.

The INS moved for summary judgment on the ground that its actions were a matter of choice or judgment and therefore within the "discretionary function" exception to the Federal Tort Claims Act. It also argued that its negligence, if any, was not a legal cause of the plaintiff's injuries. The federal district court granted the agency's motion on both grounds.

Reversing, the Ninth Circuit noted that many courts have held that decisions related to the hiring and supervising of employees usually involve policy judgments of the sort that Congress intended the discretionary function exception to shield. However, the exception does not allow agencies to violate mandatory statutory directives.

A statement by Kendalla's former girlfriend that he had shot at her at least put the INS on notice that his agency-issued revolver may have been fired in an aggressive or reckless manner during a domestic dispute, the court said.

According to applicable regulations, INS officers may use their firearms only if they have "reasonable ground to believe that such force is necessary to protect the designated immigration officer or other per sons from the present danger of death or serious bodily harm." Any alleged violation of that standard, according to INS regulations, is to "be investigated expeditiously."

The agency argued in court that its reporting and investigation guidelines only require employees on the scene of a shooting incident, not any other INS employee who learns of the shooting incident, to report it. By implication, the agency said, the guidelines do not require investigation of shooting incidents reported by outside complainants.

The court rejected those arguments, saying it "would be an odd government policy, to say the least, that would rely solely on involved employees to report shooting incidents, permitting such incidents to escape mandatory investigation if not reported by those involved."

The court decided that the failure to report or investigate the earlier shooting constituted a failure to follow the requirements established by agency regulations and concluded the FTCA's discretionary function exception did not apply.