Saturday, November 14, 2009

Fort Hood's Military Victims Effectively Barred From Collecting Damages

Not unexpected, but something of a bummer nevertheless. From the Pittsburgh Tribune-Review, "Fort Hood's Military Victims Blocked From Getting Damages":
Legal experts say families of active-duty military members who were killed during the recent Fort Hood shootings or the military members themselves who were wounded probably will be unable to win court judgments for damages even if they can prove the Army was negligent in not acting to remove the alleged shooter, Maj. Nidal Malik Hasan.

Andrew Adair, a Washington attorney, and others say a 1950 Supreme Court ruling would stand in the way of such damage claims.

The restriction would not apply to the lone civilian, Mike Cahill, 62, who was killed in last week's attack. Nor would it apply to injured civilians, including police officer Kimberly Munley, who was involved in a shootout with Hasan.

In the 1950 ruling, known as the Feres Doctrine after one of the plaintiffs that brought the case, the high court said active-duty members of the military cannot sue for damages if the death or injury is "incident to military service."

"Even if the higher-ups in the military have knowledge that someone is a loose cannon and take no action, there is no recourse. That's where the law is," Adair said.
More at the link.

The legal doctrine is based on Feres v. United States (1950). Here's a guiding passage:
We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. Nor is there any liability 'under like circumstances,' for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command. The nearest parallel, even if we were to treat 'private individual' as including a state, would be the relationship between the states and their militia. But if we indulge plaintiffs the benefit of this comparison, claimants cite us no state, and we know of none, which has permitted members of its militia to maintain tort actions for injuries suffered in the service, and in at least one state the contrary has been held to be the case. It is true that if we consider relevant only a part of the circumstances and ignore the status of both the wronged and the wrongdoer in these cases we find analogous private liability. In the usual civilian doctor and patient relationship, there is of course a liability for malpractice. And a landlord would undoubtedly be held liable if an injury occurred to a tenant as the result of a negligently maintained heating plant. But the liability assumed by the Government here is that created by 'all the circumstances,' not that which a few of the circumstances might create. We find no parallel liability before, and we think no new one has been created by, this Act. Its effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities.
This is the law of sovereign immunity. More here.

RELATED: From the Washington Post, "Mourners Grieve for Soldiers Killed at Fort Hood."

1 comments:

NoahDavidSimon said...

the intent is to keep people from controlling the government, but it would seems the application of the law is now the exact opposite.

should be over ruled