Von Lossberg v. State

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 48220
CURT VON LOSSBERG, individually, and as )
the father and Personal Representative of the )
Estate of Bryan Von Lossberg, deceased; ) Boise, January 2022 Term
DARA VON LOSSBERG, individually, and as )
the mother of Bryan Von Lossberg, deceased, ) Amended Opinion filed: March
) 17, 2022
Plaintiffs-Appellants, )
) Melanie Gagnepain, Clerk
v. )
) THE COURT’S PRIOR
STATE OF IDAHO, IDAHO STATE ) OPINION DATED MARCH 15,
POLICE, an Executive Department of the ) 2022, IS HEREBY AMENDED.
State of Idaho; )
)
Defendants-Respondents, )
)
and )
)
TYLER TECHNOLOGIES, INC., a Delaware )
corporation; ADA COUNTY, IDAHO; )
COMPUTER PROJECTS OF ILLINOIS, )
INC., a company; and JOHN/JANE DOES 1- )
10, identities are unknown at this time, )
)
Defendants. )
)
)
Appeal from the District Court of the Fourth Judicial District of the State of Idaho,
Ada County. Steven J. Hippler, District Judge.
The judgment of the district court is reversed, vacated, and remanded.
Hepworth Law Offices, Boise, and Law Office of Howard A. Belodoff, PLLC,
Boise, for Appellants. J. Grady Hepworth argued.
Lawrence Wasden, Idaho Attorney General, Boise, for Respondents. Cory Carone
argued.
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MOELLER, Justice.
Curt and Dara Von Lossberg (“the Von Lossbergs”) filed this suit against the State of Idaho
and the Idaho State Police after their son, Bryan Von Lossberg, ended his life with an unlawfully
purchased handgun. The Von Lossbergs allege that this purchase stemmed from failures in Idaho’s
electronic case management system to properly report his mental health status. The district court
dismissed the Von Lossbergs’ claims for negligence and wrongful death, concluding that the
government defendants were immune from tort liability under the immunity provisions of the
Brady Handgun Violence Prevention Act (“Brady Act”). On appeal, the Von Lossbergs argue that
their case should not have been dismissed because (1) the Brady Act’s immunity provision does
not apply to the State of Idaho, and (2) the Brady Act’s immunity provision was not preserved by
the Idaho Tort Claims Act. For the following reasons, we reverse, vacate, and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Bryan Von Lossberg struggled with mental illness after symptoms manifested in his mid-
twenties. On November 11, 2016, the Meridian Police took Bryan into protective custody and he
was hospitalized for a mental health crisis. A week later, on November 18, 2016, an Order of
Commitment involuntarily placed Bryan in the custody of Idaho’s Department of Health and
Welfare. The magistrate court found Bryan to be “gravely disabled” due to mental illness, and
determined Bryan was subject to provisions of the Brady Act, 18 U.S.C. § 922. Bryan was admitted
to State Hospital South for further evaluation and treatment. While there, Bryan was diagnosed
with schizoaffective disorder (bipolar type) and autism spectrum disorder (severity level 1) without
accompanying intellectual impairment. Bryan spent nearly the entire month of December 2016 in
State Hospital South’s care. He was discharged on December 27, 2016.
Several weeks later, on February 6, 2017, Bryan visited a pawnshop where he initiated the
purchase of a semi-automatic pistol. When Bryan filled out the requisite background-check forms,
he falsely answered he had never been committed for mental health treatment. The pawnshop
placed the pistol on layaway, pending completion of the background check, and submitted Bryan’s
information to the National Instant Criminal Background System (the “NICS”) pursuant to state
and federal law. Under the Brady Act, an individual is prohibited from purchasing any firearm or
ammunition if he “has been committed to a mental institution.” 18 U.S.C. § 922(d)(4) and (g)(4).
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However, Bryan’s order of commitment from 2016 did not appear in the NICS system; thus, Bryan
was able to complete his purchase of the handgun on February 10, 2017.
The same day Bryan picked up the pistol from the pawnshop, he called his father, saying
“he had a gun ‘under his chin’ and was threatening to commit suicide by shooting himself.” The
Von Lossbergs stayed on the phone with Bryan for 45 minutes, pleading with him to put the gun
away. As they spoke with him, they also began an hours-long search for their son. Tragically, the
search ended with the discovery of Bryan’s body in a shed behind his home. He died of a self-
inflicted gunshot wound.
Following an investigation, the Von Lossbergs filed a complaint against Tyler
Technologies, Inc., the State of Idaho (the “State”), the Idaho State Police (the “ISP”), and Ada
County. They alleged several claims in their complaint, including negligence, negligence per se,
wrongful death, negligent training and supervision, and negligent and intentional infliction of
emotional distress. The basis for the Von Lossbergs’ claims is that Bryan’s purchase was only
possible because of systemic errors and the failures of state actors.
To support their theory of the case, the Von Lossbergs aver that “Bryan’s Order of
Commitment was not properly received from the Ada County Clerk’s office and the magistrate
court due to an error in the State of Idaho’s Odyssey iCourt filing system, as well as the failure of
Defendants to address or otherwise mitigate the known error.” They allege in their complaint that
the following systemic errors contributed to the defendants’ failure to properly enter Bryan’s order
of commitment into the NICS database:
36. On or about August 8, 2016, Ada County launched the iCourt system as
designed and implemented by Tyler Technologies, Inc. The iCourt system was
represented to improve access to court records, to provide better information
exchanged between judicial partners, and to increase efficiencies within the judicial
system. The Odyssey software was promoted to have the capability to file, serve,
distribute and deliver files electronically in an expedient and reliable manner.
37. The Odyssey software was to have the ability to improve data exchange with
the Idaho Judicial Branch’s justice partners, including the ability to create and
extend data interfaces with other ancillary systems like the NICS.
38. Defendants failed to implement any type of check or system to determine
whether Commitment Orders were being received by the ISP from the Ada County
Clerk’s office and the magistrate’s court because there was no auditing system that
monitored when the ISP received, accepted, and processed the information.
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39. Bryan’s Order of Commitment was never fully processed because of
Defendants’ failure to fix and/or address the error, or otherwise ensure the laws of
the State of Idaho were properly implemented.
More specifically, the Von Lossbergs assert that when 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.
Each of the defendants also moved to dismiss the lawsuit under Rules 12(b)(1) and 12(b)(6)
of the Idaho Rules of Civil Procedure, with the State and the ISP claiming immunity from tort
liability under the Brady Act. The district court granted the government defendants’ motion,
dismissing the complaint against them upon finding the Von Lossbergs’ tort claims were barred
by the Brady Act’s immunity provisions, 18 U.S.C. § 922(t)(6). While the case proceeded for a
time against Tyler Technologies and a new defendant, CPI, these claims were eventually all
dismissed with prejudice. The Von Lossbergs have only appealed the district court’s dismissal of
their claims against the State and the ISP.
II. STANDARD OF REVIEW
The district court granted the government defendants’ motion to dismiss the complaint
pursuant to Idaho Rule of Civil Procedure 12(b)(1): lack of subject matter jurisdiction. The State
and the ISP have presented a facial challenge to the Von Lossbergs’ claims, arguing that the
complaint, as written, does not give rise to subject matter jurisdiction. This Court has held that
there is a distinction between facial challenges made under 12(b)(1) and factual challenges. Emps.
Res. Mgmt. Co. v. Ronk, 162 Idaho 774, 776–77, 405 P.3d 33, 35–36 (2017). “Facial challenges
provide the non-movant the same protections as under a 12(b)(6) motion”; thus, they are reviewed
under the same standard. Id. A factual challenge “allow[s] the court to go outside the pleadings
without converting the motion into one for summary judgment.” Id. Inasmuch as this case concerns
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a facial challenge, we will apply the same standard of review as if the motion to dismiss the action
occurred pursuant to Rule 12(b)(6). See id.When reviewing an order dismissing an action under Idaho Rule of Civil Procedure
12(b)(6), we apply the same standard of review applied to a motion for summary judgment. Joki
v. State, 162 Idaho 5, 394 P.3d 48, 51 (2017). “After viewing all facts and inferences from the
record in favor of the non-moving party, the Court will ask whether a claim for relief has been
stated.” Id. Dismissal under Rule 12(b)(6) is granted “only in the unusual case in which the plaintiff
includes allegations showing on the face of the complaint that there is some insurmountable bar to
relief.” Emps. Res. Mgmt. Co., 162 Idaho at 777, 405 P.3d at 36 (quoting Harper v. Harper, 122
Idaho 535, 536, 835 P.2d 1346, 1347 (Ct. App. 1992)).
This Court exercises free review over jurisdictional issues because they are questions of
law. Tucker v. State, 162 Idaho 11, 17, 394 P.3d 54, 60 (2017). Likewise, “[s]tatutory interpretation
is a question of law that receives de novo review from this Court.” State v. Burke, 166 Idaho 621,
623, 462 P.3d 599, 601 (2020). We begin statutory interpretation
with the literal language of the statute, giving words their plain, usual, and ordinary
meanings. In addition, provisions are interpreted within the context of the whole
statute, not as isolated provisions. This includes giving effect “to all the words and
provisions of the statute so that none will be void, superfluous, or redundant.”
Where the language is unambiguous, we need not consider the rules of statutory
construction. “Ambiguity is not established merely because differing
interpretations are presented to a court; otherwise, all statutes subject to litigation
would be considered ambiguous.”
Id. (citations omitted).
III. ANALYSIS
This appeal concerns a narrow question of immunity: specifically, whether the State and
the ISP are immune from the Von Lossbergs’ tort claims under the Brady Act, 18 U.S.C. 922(t)(6).
The Von Lossbergs argue the Brady Act’s grants of immunity do not apply to the State or the ISP
because their negligence and wrongful death claims “arise under state law,” and neither the State
nor the ISP qualify as “local governments” or “employees of any state or local government,” as
required by the Brady Act. Defendants contend the Brady Act’s immunity provision applies to
them, under both the federal statute and as incorporated by the Idaho Tort Claims Act (“ITCA”).
At the time the district court heard this case, the court and parties relied on a federal district
court case from South Carolina, Sanders v. United States, 324 F. Supp. 3d 636, 647 (D.S.C. 2018)
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(hereinafter “Sanders I”). However, Sanders I was later reversed and remanded by the Fourth
Circuit Court of Appeals shortly after the Von Lossbergs’ complaint was dismissed. Sanders v.
United States, 937 F.3d 316 (4th Cir. 2019) (hereinafter “Sanders II”). 1 In light of the Brady Act’s
plain language and recent federal decisions, we agree with the Von Lossbergs that federal
immunity does not extend to the State or the ISP.
A. The Brady Act’s immunity provisions do not apply to the State or the ISP.
In 1993, Congress passed the Brady Act to amend the earlier Gun Control Act of 1968, 18
U.S.C. §§ 921–931. Printz v. United States, 521 U.S. 898, 902 (1997). The Brady Act’s purpose
was to prohibit certain individuals from buying, owning, or possessing firearms, as well as to
establish a nationwide background system to identify these individuals—the NICS. Id.; Sanders
II, 937 F.3d at 322. Under the Brady Act: “It shall be unlawful for any person to sell or otherwise
dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe
that such person . . . has been adjudicated as a mental defective or has been committed to any
mental institution.” 18 U.S.C. § 922(d)(4). Likewise, “[i]t shall be unlawful for any person . . .
who has been adjudicated as a mental defective or who has been committed to a mental institution”
to possess “any firearm or ammunition.” 18 U.S.C. § 922(g)(4).
In a commitment proceeding, when a trial court makes a finding that the subject of the
proceeding “is a person to whom the provisions of 18 U.S.C. 922(d)(4) and (g)(4) apply,” Idaho
law requires the clerk of the court to forward a copy of the order of commitment to the ISP, “which
in turn shall forward a copy to the [F]ederal [B]ureau of [I]investigation, or its successor agency,
for inclusion in the [NICS] database.” I.C. § 66-356(1). See also I.C. § 67-3003(1)(i) (separate
section requiring the ISP to electronically transmit to the NICS information concerning
individuals’ “eligibility to receive or possess a firearm pursuant to state or federal law.”).
At issue here is the Brady Act’s express immunity provision related to these data transfers.
It states:
Neither a local government nor an employee of the Federal Government or of any
State or local government, responsible for providing information to the national
1
To avoid confusion, we note that the district court also used “Sanders I” and “Sanders II” in its memorandum
decision, but to distinguish between two rulings made by the United States District Court of South Carolina. The
district court in this case never considered the Fourth Circuit Court of Appeals’ opinion—referred to as Sanders II in
this opinion— because it was published in the period between the dismissal of the complaint against the government
defendants (in 2018) and the Von Lossbergs’ appeal (in 2020).
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instant criminal background check system shall be liable in an action at law for
damages--
(A) for failure to prevent the sale or transfer of a firearm to a person whose
receipt or possession of the firearm is unlawful under this section; or
(B) for preventing such a sale or transfer to a person who may lawfully
receive or possess a firearm.
18 U.S.C. § 922(t)(6). It is undisputed that the case at hand concerns the exact conduct immunized
by section 922(t)(6). The parties dispute only whether the immunity granted by this provision
extends to the State and the ISP.
Generally, under the doctrine of sovereign immunity, “a governmental unit can only be
sued upon its consent.” See, e.g., Bott v. Idaho State Bldg. Auth., 128 Idaho 580, 591, 917 P.2d
737, 748 (1996). The Idaho Tort Claims Act (“ITCA”), for example, is a limited waiver of
sovereign immunity by the State of Idaho, “with the purpose of providing ‘much needed relief to
those suffering injury from the negligence of government employees.’ ” Hollingsworth v.
Thompson, 168 Idaho 13, 20, 478 P.3d 312, 319 (2020). Parallel to such waivers, statutory
immunity provisions can shield specified parties and actions from suit. See, e.g., 18 U.S.C. §
922(t)(6).
In looking at the plain language of the Brady Act’s immunity provision, the federal law
expressly states: “Neither a local government nor an employee of the Federal Government or of
any State or local government, . . . shall be liable in an action at law for damages . . .” 18 U.S.C.
§ 922(t)(6) (emphasis added). The immunity provision also applies only where an actor is
“responsible for providing information to” the NICS. Id. Thus, the Brady Act expressly bars any
“action at law for damages” asserted against “a local government” or “an employee” of federal,
state, or local government “responsible for providing information to” the NICS. Id. Neither a “state
government” nor the “federal government” are listed as immune entities. Because “local
government” is the only listed entity receiving immunity, the question then becomes whether
“local government” includes a state or its agencies, such as the State of Idaho and the ISP.
“Local government” is not defined under the statute. See 18 U.S.C. § 921. Black’s Law
Dictionary defines “local government” as “[t]he government of a particular locality, such as a city,
county, or parish; a governing body at a lower level than the state government.” Government,
BLACK’S LAW DICTIONARY (11th ed. 2019). Indeed, “local government” is often interchangeable
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with “municipal government.” Id. This plain interpretation and common understanding is
exclusive of the higher state government operations and its respective agencies.
In drafting the Brady Act, Congress was certainly aware of the general governmental
distinctions used to categorize the types of government employees entitled to immunity (i.e.,
federal, state, and local), but it only granted immunity to one of those types of government entities:
local government. Neither state nor federal governments were included. The doctrine unius est
exclusion alterius (“to express or include one thing implies the exclusion of the other”) applies
under these circumstances. Holcombe v. United States, 388 F. Supp. 3d 777, 797 (W.D. Tex. 2019),
motion to certify appeal denied, No. 5:18-CV-1151-XR, 2019 WL 13080126 (W.D. Tex. Sept. 10,
2019). Therefore, the Brady Act’s immunity provision plainly does not extend to federal or state
governments.
The district court, in construing Sanders I, stated that “[t]he plain language of
§ 922(t)(6)(A) mandates that is [sic] apply to any ‘action at law for damages’ asserted against a
local, state or federal entity . . . .” This is an incorrect and overly expansive interpretation of the
statutory language. The plain language of the statute only extends immunity to “local
governments” and employees of federal, state, and local governments. 18 U.S.C. § 922(t)(6). It
does not include state or federal entities in its grant of immunity.
Although not binding on this Court, we find it additionally persuasive that this
interpretation is now being applied in federal courts. The main case that has examined the
applicability of the Brady Act’s immunity provision is the Fourth Circuit’s analysis in Sanders II,
937 F.3d at 334. Importantly, the Fourth Circuit reversed and remanded the original Sanders I case
relied upon by the district court in its decision dismissing the Von Lossbergs’ complaint. Sanders
I, 324 F. Supp. 3d at 647, rev’d and remanded, Sanders II, 937 F.3d 316. Unfortunately, neither
the parties nor the district court had access to the holding in Sanders II when the case was decided
below.
In Sanders II, the Fourth Circuit interpreted 18 U.S.C. § 922(t)(6) in the light of whether
the federal government was immune from a negligence suit for lapses in the NICS following a
mass shooting in a South Carolina church. 937 F.3d at 321. In looking at the plain text of the Brady
Act, the Fourth Circuit determined “this provision grants immunity only to ‘a local government’
or ‘an employee of the Federal Government or of any State or local government.’ ” Id. at 334. In
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other words, “the statute distinguishes between immunity for employees at all three levels of
government, on the one hand, and immunity for only local governments, on the other.” Id. Because
of this distinction, the Fourth Circuit concluded that “Congress intended to exclude the Federal
Government from the grant of immunity.” Id. A similar analysis was followed by a U.S. District
Court in the Western District of Texas, where the court concluded “the Brady Act is unambiguous
in specifying the people and entities immune from liability in providing information to NICS,” for
it lists only “local governments and employees of federal, local, and state governments.”
Holcombe, 388 F. Supp. 3d at 797.
Our issue on appeal is ultimately a narrow one: whether the Brady Act grants immunity to
the State and its agencies. We conclude it does not. Certainly, Congress cannot waive Idaho’s
sovereign immunity. Alden v. Maine, 527 U.S. 706, 754 (1999) (“States retain immunity from
private suit in their own courts, an immunity beyond the congressional power to abrogate by
Article I legislation.”). Nor can a government be sued without its consent. See, e.g., Tucker v. State,
162 Idaho 11, 17–18, 394 P.3d 54, 60–61 (2017). However, the State has not presented an
argument on appeal, nor did is assert below, that any other source of immunity exists. It has hinged
its arguments entirely on the Brady Act, including whether its immunity provisions have been
incorporated into Idaho law under the ITCA, I.C. § 6-903(6). This narrow argument may have left
unanswered questions at the door—specifically, whether the State has waived its sovereign
immunity through the ITCA, or other laws, to permit the Von Lossbergs’ suit—but our “review
on appeal is limited to those issues raised before the lower tribunal.” Neighbors for a Healthy Gold
Fork v. Valley Cnty., 145 Idaho 121, 131, 176 P.3d 126, 136 (2007).
As for the State’s incorporation arguments, our plain interpretation of 18 U.S.C. § 922(t)(6)
is dispositive of this issue. The incorporation of federal immunity is relevant only if that immunity
actually extends to the State. Because the Brady Act only grants such immunity to local
governments—not state governments—whether the ITCA incorporated it becomes a moot point
that we need not address. Other citations by the State to the ITCA in connection to the Brady Act
similarly fail to deal with either immunity or its waiver. See I.C. §§ 66-356(1)(f) (requiring a court
to make a finding that the Brady Act’s prohibitions apply to a defendant who was involuntarily
committed); 67-3003(1)(i) (a separate section requiring the ISP to electronically transmit to the
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NICS information concerning individuals’ “eligibility to receive or possess a firearm pursuant to
state or federal law.”).
In making its arguments, the State also points us to Miller v. Idaho State Police, 150 Idaho
856, 252 P.3d 1274 (2011), and the doctrine of respondeat superior. The State argues that under
Miller, the Brady Act’s grant of immunity to “John and Jane Doe state employees” extends upward
to grant immunity to the State and the ISP, and that an employer cannot be held liable where the
employee cannot. However, neither Miller nor the doctrine of respondeat superior apply to this
case for two key reasons. First, unlike the plaintiffs in Miller, the Von Lossbergs filed their
complaint against state entities, not individual or identifiable employees. Nothing in the Brady Act
even suggests that the involved employees are indispensable parties to such an action. Second, and
most importantly, the Brady Act specifically distinguishes between immune entities and immune
employees—a distinction that would be superfluous under the State’s interpretation that its liability
first requires a State employee’s liability. Such a course is untenable. We “must give effect to all
the words and provisions of the statute so that none will be void, superfluous, or redundant.” State
v. Schulz, 151 Idaho 863, 866–67, 264 P.3d 970, 973–74 (2011) (quoting Farber v. Idaho State
Ins. Fund, 147 Idaho 307, 310, 208 P.3d 289, 292 (2009)).We also cannot agree that a government
employee’s immunity under the Brady Act extends into full-fledged sovereign immunity for the
respective employer. To accept the State’s argument would render the Brady Act’s immunity
provision null and void, for its interpretation would mean that a party could not sue the State
without naming an employee as a party and, since all employees would be immune, no case could
ever be brought.
Looking back to Sanders II and Holcombe, the federal courts in each case reached the same
conclusion we have in responding to similar arguments. They also rejected the government
defendants’ arguments that immunity applied to the United States through its employees. Sanders
II, 937 F.3d at 334; Holcombe, 388 F. Supp. 3d at 798. For “[i]f federal and local governments
enjoyed immunity through their employees, Congress would not have needed to single out ‘local
governments’ for immunity in the statute.” Sanders II, 937 F.3d at 334. We agree with this logic.
Based on the plain language of the Brady Act, we conclude that 18 U.S.C. § 922(t)(6) does not
extend immunity to the State of Idaho or the ISP, only to local governments and the employees of
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federal, state, and local government. Therefore, we hold that the district court erred in dismissing
the Von Lossbergs’ case on that basis.
IV. CONCLUSION
For the foregoing reasons, we reverse the district court’s order dismissing the Von
Lossbergs’ complaint. Accordingly, we vacate the judgment entered against the Van Lossbergs
and remand this case for further proceedings consistent with this opinion. As the prevailing party
on appeal, the Von Lossbergs are entitled to costs as a matter of right. I.A.R. 40(a).
Chief Justice BEVAN, Justice STEGNER, and Justices Pro Tem BURDICK and
HORTON CONCUR.
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