of the children of tracy burke and also karen commerces day two individuals as you know from the pleadings were tragically murdered by brant b on september eleventh two thousand and seven this case and what we have brought here today against the government is a case that springs from an incredibly noble wholesome good and it's restatement of torts two three twenty four a and in this particular instance the policy seven expressed a duty that the army had not to regulate soldiers but to protect those in need of protection in an instance of domestic violence and we had a domestic violence incident specifically occur on may twenty sixth two thousand statutory duty if you will to comply with it but it's mandatory so policy seven contains within it like a spoke out of which the first c ability elements of the harm to which tracy was exposed beginning on that day that day may twenty sixth and it continued and escalated and did not go away for one hundred eight days all the way until  forty eighth it's got a forty eight hour cooling off rule that says you are you have to go to the barracks and you must cool off and that is a mandatory rule but we've not had an opportunity to do is develop the record we believe that we are going to be able to produce an ad deuce evidence in the record that that rule was violated as well but not a saying we have but we do know is that the rule that requires confiscation of the weapon was not followed your emphasis in your brief under policy seven is mainly focused on guns situation that is that the guns were not understand it confiscated they were killed with government weapon no it was not a government issued weapons the adult meter pistol was private it was privately owned and the rule in the enclosure attached to policy seven which policy seven itself says these are minimum actions that will be taken there's not anything in policy seven that is anywhere close to discretionary and so here they confiscate it it's weapons but you're part of it they gave him back to no excuse me they did not confiscate the weapon although they marked on the enclosure that they had on may twenty sixth but during this series of events leading up to the one point they confiscate this weapon one of those one of his colleagues fellow policeman by the name of sergeant dean who is now deceased sergeant dean took his weapon because he was escalating the threats he was telling people left or he told a soldier outside the barracks in june after the first event i'm going to take her into the woods and i'm going to use the word he said but i'm going to kill that was reported to his commanding officers commanding officer concluded that he was blowing off steam and tragically he was not blowing off steam then the next domestic violence incident that was reported but policy seven was not even implemented on like it was on may twenty sixth was august the eleventh he was following around clarksville tennessee and fort campbell she calls t bush calls her brother who calls the police because no military protective order which is required to be issued under policy seven on may twenty sixth had been issued the clocks will put police didn't do anything and neither did the military then august i'm getting to your point and sometime around august fifteenth sergeant dave took his weapon from him because he said he was going to kill tracy on august th he gave the gun back and ten days later tracy was murdered and so was carrying home so the duty arises out of policy seven what is policy seven do here first of all is mandatory there's no discretion in this thing there's even in the military is a not employee of the federal government it says the greater the crisis the greater the crisis the greater the need to move quickly to refer the protection to the needing protection that's in paragraph two of policy seven and then policy seven goes on to say this is what you will do it even had it so specific and precise and mandatory that it says the grade of the officer that must confiscate the weapon so i can tell you when the act when the negligent acts of failure this is an undertaking the army wrote down and is explicit this is a an undertaking where you're working down a trail holding a branch back and let the branch go to hit somebody puts their eye out this is an undertaking that happens to be written down and be specific i'm struggling with is that you've got to feed yourself within kentucky there's no question that party help me i'm not finding a alliance argument in the pleadings because there's the statement that they didn't they didn't do anything at all so help me understand how latest that we have specifically alleged in our mid complaint that tracey called his commanding officer after the may twenty sixth incident and she said two things i'm afraid of and we still threaten of policy seven emanates the foreseeability element and the first c ability element is necessary under kentucky law before there exist negligence now i've heard and the district court made a point of saying there's no duty under kentucky law to warrant somebody something they already know that they're in danger of or respectfully there's no case law that says that because i don't believe that to be the law the pathways vs hammons case decided by the kentucky supreme court specifically says that negligence is determined based upon not as what it not what is in the victim's or the  mind it's in the twit freezers mind what did they know so what did the army know here they knew they had a very troubled soldier before he ever got back to fort campbell kentucky and this series of events began this one hundred eight days began he had been then he'd been deployed he had been sent home from egypt so maybe it is but it is it is a horrifying record i don't think anybody's going to dispute that  if you had discovery what what is it that you anticipate document wise or evidentiary wise would establish that that your client relied on what on the army's policy i believe we're going to find out that there were numerous calls to his commanding officer letting letting him know i need help here i'm afraid and she ended up trying to get away from him because she was not sure that she was going to he was living in the barracks i think we're going to find out that he was he had been ordered to the barracks but i think we're going to find out that he was  because we know this isn't in the record and i want to be clear about that but i think what we're going to find out is that he was going to her house in the middle of the night standing over a bed when he should have had a military protective order which had been issued he would have been able to do so she was able to do or he would have been in trouble if he would have been in a lot of trouble if he had done it if his gun had been confiscated it would been an arms armory room in order to get it out he would have had to check it out so there are a lot of things that she was expecting the army to do in the context of this alliance saying that the negligence arises from the treatment of the guns  that was suggested by opposing counsel in his brief we have not abandoned that argument no ma'am we briefed it at the lower court level and we didn't brief it specifically to you we have not witnesses and so absolutely absolutely there will be a lot of discovery that would need been need to be done and may i continue answering your your inquiry about about the the so it's it's terror soft morning portion of the kentucky statutes that were we have not abandoned it's the the duties that the officers who were charged not with making judgments about but charged to implement the confiscation of the weapons issuing the military protective order referring him to mental health that's another element that you were referencing one of the various things and all of these things and in the end fifty miles from fort campbell and murdered mrs burke and her ex mother there's no question that the bullets that killed them were from his private gun is that correct yes a weapon that was never recovered but yes that does not mean however that sovereign immunity has been waived in this case for the united states and as this court is well aware thirteen twenty eight u s c thirteen forty six b one is the federal tort claims act where there's a waiver of sovereign immunity for certain types of torts in a jurisdiction just as though a private person would have been held accountable for tort liability however there are two exceptions to that one is the intentional toward exception which is what the district court held political here the others the discretionary function exception which the tort of the district court never got to what we believe is equally applicable  but you do have in kentucky a good samaritan principle that has been applied absolutely judgment and so what's your answer to that in light of the fact that the which arguably at least were not followed that is when you look at the evidence the gun problem of others as mentioned there's evidence that they were not followed what your answer to the three of the restate in which there sensually one in the same other and three twenty four a as for third party but if you'll indulge me i'll go through that an analysis for you judge merik first you start with this court holding in satterfield and what does the arising any claim arising out of an intention and assault and battery in this case the arising out of language is quite broad but it is not limitless as as you noted and shared in the supreme court held that there may be special relationships however those special relationships must be entirely independent of the employment relationship the assailant have with in this case the army so you can get to three twenty three or three twenty four the good samaritan are that is part of the special relationship is because he was in the army i'm not but the second part of the part is that the army had a policy which was stated about protection so you got that creates somewhat of a special relationship too doesn't it the policy seven does not create a special relationship in the preamble type language where it talks about the need to protect our military community the need for the need to recognize domestic violence is an issue but if you look at what policy seven is and you look at how it came to be it came through the army's family advocacy program which recognizes in part how are we going to train our unit commanders to supervise their employees in the context of a domestic violence situation and policy seven everything that's discussed in that checklist goes to at its core the supervision of sergeant burke in this case as an army soldier it does not create independent duties to in this case mrs burke and i think the plaintiffs recognized this when they said if neither sergeant burke were soldier nor tracey burke were soldier policy seven would have no political billeted to the situation and i think that's how we have to look at this under kentucky law and the good samaritan doctrine we have to remove sergeant burke as an employee of the army and treat him the assailant as though he were simply mr burke and therefore does policy seven the fact that he is in the army has been made all the statements while assailant sometimes irrelevant because why because there cannot be the intentional toward exception has not been erased by sheridan satterfield holds this court has held that you cannot in the context of an intentional tort exception cloak your claims in terms of negligent supervision and that's exactly what the plaintiffs are alleging here that's exactly what policy seven is it is how will the military supervise an employee it's employee has been involved in a domestic violence situation how will that unit commander react in that situation that is not actionable we have to remove policy seven from this analysis the whole policy  properly implemented or here too that some intentional harmful you know in this case deadly activity could occur so what could be the rationale for as you say removing that because the ultimate action here was in fact intentional that's right the reason it's removed from the analysis is because it is at its core but the policy you see would seem to four see that that if we don't have this policy people could go off and do the kinds of things that mr mr burke ultimately did and so if we follow analysis it seemly it seemingly what this obviate the need for policy seven why would you even have it because i think it does recognize that that is an issue within the military community and i think there is a recognition that domestic violence poses a problem for soldiers and there in this case spouses so when it recognizes that and the policy is in place to prevent this kind of stuff when it ultimately occurs we just say oh well too bad is that is that what you're telling us no what i'm telling you is that there needs to be a special relationship under kentucky law and policy seven does not get you to that special relationship the good samaritan doctrine does not apply within the context of linking it to policy seven you have to remove policy seven from the analysis and i'll give the court an example of how the intentional toward exception does not apply in the context of this let's presume that sergeant burke in the events of may have two thousand and seven and a weapon was brandish well policy seven of course has an affirmative duty despite the fact that an intentional tort ultimately occurred but that psychiatry is has an affirmative duty to warn mrs burke under kentucky law and under the under the special relationship in that then then do you have an alternative argument i do your honor and that would be the discretionary function exception and as this court is well aware under twenty eight u s c twenty six eighty a the united states cannot be held liable for a discretionary act even though even if that discretionary act were negligent and you look at go bare which is a two part test and rose bush which is the six circuits decision which discusses that and you first look this is there an element of judgment or choice and then once there is an element of judgment or choice is that choice subject to policy analysis which would be social economic or in this case military policy but if the  is a violation the rules changed the governmental organization then the discretionary function exception may not apply if there was and maybe in the supreme court that indicated that for example downs of the united states are you familiar with that can that's what the court hel question began with is there an element of judgment or choice being exercised if there if it is a mandatory rule and there is no element of choice that the federal employee can exercise then certainly liability could be imposed because the discretionary function exception does not apply the rules under policy seven require well no and let me begin by just going back to policy seven and policy seven is first implemented because it requires the unit commander to first determine has there been make a determination as to whether there's been a credible allegation of domestic violence that is an exercise of judgment or choice by that  unit commander they have to determine once they receive an allegation whether or not it is credible and then of course domestic violence is something that is actually defined within the uniform code of military justice given here but there was clearly clear possibility i think the unit commander in may of two thousand and seven did make that determination that there had been a credible allegation the mess the violence subsequent to that they did not and then the one of the with through that  the idea right policy seven is not indefinite it's not as plain as would suggest something that's maintained in perpetuity and i think that this court noted there's a seventy two hour cooling off period there within forty eight hours and even before frankly but if you look at the checklist within forty eight hours that unit commanders to revisit every item on this checklist and determine whether or not it even applies and subsequent to the may to on the two thousand and seven the determination was that we no longer need to  they determined that she was no longer under threat in that context the man i have to rely on what's alleged in the amended complaint but she had moved out she had moved one hundred fifty miles away and but there were other there are determination that these were not credible allegations of domestic violence and domestic violence is defined as a crime so that unit commander has to determine whether or not there's been a potential violation of the uniform code of military justice federal law or local law and you know there's no allegation in the amended complaint that the second incident the one that occurred in august of two thousand and seven the local police that came out didn't even file a police report and they don't allege that they did there was no credible allegation at that point as the unit commander determined i see that my time is almost up but i just want to make it clear that yes there is an exercise of judgment or choice but within tracy bar that that then would stay decline i think if they allege detrimental reliance that is a necessary element of the good samaritan doctrine i don't believe they have in their mind to complain thank you yawners paragraph thirty nine of our admitted complaint we allege moreover during this period of separation this is immediately after the may twenty sixth incident tracey infirmed of informed  chain of command that she feared burke she requested a protective order to keep burke away from her and she expressed her fear of burke's access to his weapons well that and and help her reliance and that they had actually investigated and implemented policy seven they had not confiscated as weapons and so she was she knew that that was a requirement the requirement of policy seven was that she received the domestic violence checklist that shows everything that was done the no that's that's information we just don't have that we're going to have to develop and in discovery but it's still is to reason that that's probably what happened but we don't we don't know that right now because we just haven't had any discovery actually implemented it and it was in response to her plea for help she was at her house moving her stuff out karen and her home or were there helping her move her stuff out specifically point to that they undertook then and that she relied upon thank you for thank you for that those duties exist in the third panoply of foreseeability that they have here knowledge of his previous past etc on may twenty sixth when they failed to confiscate his weapon that officer easy eat great east six that is a specific breach of a duty that is mandatory and something that can't would that sort of failure to take it in yes ma'am today would be could have been violated any time in the future if he used the weapon even though somebody took it in between and gave it back yes ma'am  had the failure to confiscate the weapon what we don't know yet and haven't alleged but believe is that a military protective order was never issued what we don't know and haven't been able to allege or find out yet is that he was rather timid he was supposed to the rule he was supposed to be referred to mental health there were a whole series of things and then the checklist everything on the checklist and that's where the confiscation of the weapon comes in so our argument is that the duties were breached on may twenty sixth the a body outside of the barracks is total by him i need to take her in the woods and shooter that's reported to his chain of command and the way policy seven reads it's not that there is a domestic violence crime that has occurred that they intervene in no it's you will do this where there is a threat to injure a victim that's part of the military community you will do these things we had a threat in june we allege there was another domestic violence incident when he was followed around in august there was another threat in august that he made to a fellow officer and all of these things are being reported we allege up the chain of command and that's something that they know about in then what happens the tragic event is buddy takes his gun from him out of fear knowing that if he's living in the barracks he's not supposed to have a gun in the first place and so he takes is going from east talking trash and he tragically gives him is going back each one of those all of those events create art constitute a