Another Mass Shooting in the U.S.
- Thread starter essguy_
- Start date
So I checked out the RCMP application form to purchase a firearm in Canada.
If you are currently married (or in a common law relationship), your conjugal partner has to sign his or her approval.
If you have lived in a conjugal relationship within the last 2 years with someone other than the person in the previous sentence, your prior conjugal partner has to sign her approval.
Personal History:
If you answer yes to any of the questions in this section, you must provide details on a separate page. If details are not provided, your application cannot be processed. A yes answer does not mean your application will be refused but it may lead to further examination.
During the past five (5) years, have you been charged, convicted or granted a discharge for an offence:
under the Criminal Code or the Youth Criminal Justice Act where violence was used, threatened or attempted;
(i)
involving the misuse, possession or storage of a firearm; or
(ii)
involving trafficking or importing drugs or controlled substances?
During the past five (5) years, have you been subject to a peace bond, protection order or an order under section 810 of the Criminal Code?
During the past five (5) years, have you or any member of your household been prohibited from possessing any firearm?
During the past five (5) years, have you threatened or attempted suicide, or have you suffered from or been diagnosed or treated by a medical practitioner for: depression; alcohol, drug or substance abuse;behavioural problems; or emotional problems?
During the past five (5) years, do you know if you have been reported to the police or social services for violence, threatened or attempted violence, or other conflict in your home or elsewhere?
During the past two (2) years, have you experienced a divorce, a separation, a breakdown of a significant relationship, job loss or bankruptcy?
On top of that you need two references (not your conjugal partner) who have known you for at least 3 years, and who will sign the application and attest that there is no reason of which they are aware that you should not be allowed to purchase a firearm.
Sounds like pretty reasonable basic criteria to me!
It seems that you may indeed file under the FTCA.
"Under the FTCA, the federal government acts as a self-insurer, and recognizes liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties. "
"Individuals who are injured or whose property is damaged by the wrongful or negligent act of a federal employee acting in the scope of his or her official duties may file a claim with the government for reimbursement for that injury or damage. To state a valid claim, the claimant must demonstrate that (1) personal injury or property damage was by a federal government employee; (2) the employee was acting within the scope of his official duties; (3) the employee was acting negligently or wrongfully; and (4) the negligent or wrongful act proximately caused the injury or damage. The claimant must also provide documentation establishing that his claim satisfies all the elements of the FTCA."
https://www.house.gov/content/vendors/leases/tort.php
If they refuse your claim you are then able to appeal and then sue apparently.
https://militarylawcenter.com/practice-area/claims-government/
Sounds like it might be a solid lawsuit. Do you guys in the US have the equivalent of our "foreseeability" test for harm? If so, I am not seeing a defence here.
Of course the Constitution was talking about muskets, not semi-automatics. If someone invents a gun which fires nucleur missiles, will that be protected by the Constitution too? Time for some sanity, but that ain't about to happen with Trump and the NRA
You can kind of see where this is going. It will morph from a debate about Gun Control into outrage at the Air Force. Two things will take the heat away from any discussion on changes to the current gun controls: 1 That the Air Force gave this guy, who beat his wife and cracked his kids skull a BCD vs a Dishonourable Discharge. This goes hand in hand with the prevailing attitudes in the Air Force (at the time), eg: turning a blind eye to sexual harassment, lingering Tail-hook attitudes, etc. The question will be - why wasn't his crime considered Dishonourable? The guy fractured the skull of a baby and beat up a woman - but the Air Force gave him a BCD (bad - but a step less than dishonourable and meant he could own a fire arm). You can bet that if he had done the same to an Officer, he would have been discharged dishonourably. 2. The Air Force screwed up on entering data into NICS (as his conviction and jail time should have disqualified him even if his BCD didn't).
So outrage will be deservedly directed at the Air Force, and the NRA and members will gladly feed this outrage to take heat away from another reality: Even IF the system had worked and NICS had denied Kelley's application, all he would have to do is wait until the next weekend's gun show (because undoubtedly there would be one) and he could easily walk out with any number of weapons, no questions asked.
So outrage will be deservedly directed at the Air Force, and the NRA and members will gladly feed this outrage to take heat away from another reality: Even IF the system had worked and NICS had denied Kelley's application, all he would have to do is wait until the next weekend's gun show (because undoubtedly there would be one) and he could easily walk out with any number of weapons, no questions asked.
Firstly, I am not from the US, in case you were mistaken about that. But you are probably talkin to Aardy who I quoted.
Second, I am not sure what the 'forseeability' test is and would need to google that.
And lastly, after posting this last night I wondered that IF the gov't refused the claims put forth here and it proceeded to the litigation stage, that I am not sure what the phrase 'satisfies all elements of the FTCA' entails as I didn't look THAT deep into it, which may have some hidden stumbling blocks but may only refer to the 4 points in the quote; AND in point 4 I quoted where it says "proximately" which I think would be hard to establish, or be a major point of argument, considering the guns were purchased over the course of 4 years, not that 'proximate' necessarily refers to the temporal aspect or nature, and that there was no expectation that the person would actually use the guns in that manner, which I am presuming refers to your 'forseeability' test. Correct me if I am wrong here.
This is one of those half truths. Most of the sellers at gunshows are in fact firearms dealers who do have to put a potential sale through the instant background check process. However, in many states, private gun sales (between two residents of the same state), Texas being one of them, do not have to go through a background check process. That said about 3/4 of such private sales are between family members.
I was talking to AArdy, who I thought might have some general knowledge from speaking with lawyer or buddies from law school. But your sites are very useful.
I note there are also "administrative claims". Not sure what those are, since we don't have them in Canada. I guess that's because tort claims are more available up here. I am guessing that they are claims which are submitted to a military arbitrator for assessment and you only file a lawsuit if the arbitrator gives a negative decision.
"Foreseeability" in Anglo Canadian law is a threshold test to determine whether a defendant is going to be made civilly liable. The harm caused by the defendant's negligence must be reasonably foreseeable. There are weird cases where someone was negligent in some way but damage resulted only because of a bizarre and very unlikely fluke chain of events where the courts have said stuff like "Nah. No one would have foreseen that the CN Tower was going to topple just because the defendant let his dog off the leash in a park in North York and it bit someone and the guy bitten had a rabies fit two months later and drove his car into a truck which happened to spontaneously combust. We won't make him liable for the damages."
I think the expectation that the guns would be used to kill someone if purchased by a convicted violent felon with anger problems towards women is pretty "foreseeable" btw. And temporal connection is usually dealt with by limitation periods.
Ya I figured the temporal aspect would not apply to proximal vs distal in this sense. But as far as cause and effect goes, arguments to be made on both sides there.
ETA I am wondering if a search for any other BCD or DCD individuals who acquired firearms due to the lack of flagging by the military and used in the commission of violent acts are available. Or was this a solitary case? Seems unlikely.
The licensed fire arms dealers (as well as sometimes the manufacturers) who show up are there because it's almost like any trade show - an opportunity to show their wares, demo product, and possibly make a few sales. For the rest - No private sale has to go through NICS. It's only if the seller has a reason to suspect that the buyer should be checked out. Then, of course, they can't access the database. That's why gun shows are so prevalent in those States that allow them. Not sure if you've ever been to one, but if not - it's a real eye opener. It's also, of course, fun - but there's an obvious problem when you actually witness people taking literally 10 minutes to check out a couple stalls then put cash down for a gun. As you know, there's no requirement to keep any records of a private sale either. Oh, and from my experience, 50% of the people there, buying their first gun, are an endangerment to themselves and others. I would not want to be anywhere near them if they had a loaded weapon.
The U.S. Congress has established an administrative procedure by which a Federal agency can settle a tort claim against the government without litigation. This is the "administrative claim," you mention and is the first part of making a claim under the FTCA, the litigation process doesn't begin until the agency has finally denied the claim in writing, and of course if they acknowledge it it is never litigated.
https://www.law.cornell.edu/uscode/text/28/2675
Good old proximate cause, indeed foreseeability is part of that.
As we talk this out I'm coming around to your viewpoint, although I still don't see it as being as "slam-dunk" as you do.
I'm sure that lurking just below the surface in all members of the Bar is the plaintiff lawyer's barracuda instinct and it's just a matter of time before we have both convinced ourselves that it's a slam dunk and worth ten times its weight in gold!
I assume the plaintiff can also litigate if he / she feels the settlement offered administratively is paltry?
Ever been to a gun show in Canada?
Pretty much the same thing can happen. Where's the manufactured outrage now?
