Air Force Admits Blunder Led to 26 Dead at Texas Church
In a statement released Monday, November 6, the Air Force admitted that a clerical error by an unknown individual at Holloman Air Force Base led to the failure to list the domestic violence conviction of then Airman Devin Patrick Kelley with the US Department of Justice’s National Instant Criminal Background Check System (NICS). In this follow-up to our recent posts on this tragedy the wrongful death and personal injury lawyer at the Doan Law Firm will explain how this shocking revelation may be used to secure compensation for those injured in this event and for the families that have lost a loved one to achieve some degree of closure following their losses.
The Facts
All available news reports suggest the following chain of events leading up to the November 5, 2017, massacre of 24 people at the Sutherland Springs Baptist Church:
- Kelley was arrested at Holloman AFB, New Mexico in 2012 on two counts of domestic violence against his former wife and their child.
- Upon his conviction in January of 2013 on both charges, he was sentenced to a reduction in rank to E-1, one year’s confinement at the Naval Consolidated Brig at Miramar (CA) Naval Air Station, and a Bad Conduct Discharge. His sentence was reported as having been served in full.
- In the time from following his release from confinement in 2014 until his death from a self-inflicted gunshot wound on November 5, he was able to purchase at least four firearms despite having been barred by law from doing so. Federal and state investigators have determined that, contrary to federal and state law, Kelley’s domestic violence conviction was never reported to the Federal Bureau of Investigation’s national databases. This omission resulted in Kelley appearing to have a “clean record” and enabled him to obtain the weapons used in the Sutherland Springs killings.
The Law
According to the provisions of the Brady Handgun Violence Prevention Act (“Brady Act”; 107 Stat. 1536, as amended), certain individuals are prohibited from purchasing a firearm. In the case of Devin Patrick Kelley, the shooter in the Sutherland Springs Baptist Church incident, Kelley should have been disqualified from purchasing a firearm from any licensed federal or Texas state firearms dealer because of his domestic violence convictions. Furthermore, Kelley should also have been forced to comply with Texas’ version of the “felon in possession” law, which would have barred him from possession of any “long gun” (rifle) or a pistol in any location other than his place of residence for a period of five years following release from prison or after successfully completion of all conditions of his parole.
Potential Liability of the USAF in Sutherland Springs Shooting Incident
As we noted in a previous post, federal law specifically bars lawsuits against manufacturers of firearms and ammunition for the actions of those who purchase and/or use those products. Although this federal law would seem to leave the surviving victims and family members of those who were killed in this tragedy without a legal course of action, we have determined that the victims and surviving family members do indeed have a course of action available.
Under the law of tort, any act of commission or of omission that directly leads to a loss (a monetary loss, or an injury/death) creates a liability on the part of the individual whose responsibility it was to assure that such actions did not occur. In the case of the Sutherland Springs shootings, since it was (hopefully) a clerical error by someone at Holloman AFB that led to the omission of Devin P. Kelley’s name from the NICS database then that person and his/her employer is are both liable for damages under the doctrine of respondeat superior (the employer is responsible for the actions of the employee).
Furthermore, we believe that the Air Force will not be able to claim that it is immune from lawsuit via the doctrine of sovereign immunity, which holds that a government agency cannot be sued for its lawful actions. We believe that, since it is obvious that some employee of the Air Force or an active duty member of the Air Force was clearly negligent in their duty, liability for the subsequent firearms purchases and actions of Devin Kelley rests squarely on the United States Air Force.
Summary
All too often victims of any gun violence are left with the impression that they were simply in the wrong place at the wrong time, be it a shooting in the parking lot of a night club or while they were quietly participating in their Sunday worship services. At the Doan Law Firm, we believe that there are only two ways to curb such senseless violence are by 1) via stricter enforcement of the enforcement of existing gun laws and 2) by making it too risky financially to attempt to circumvent those laws.
Many outside the legal profession are unfamiliar with the complex, and sometimes contradictory, regarding gun purchases, ownership, and liability. If you were injured in an act of gun violence, or if you have lost a family member to such an act, we encourage you to contact us as soon as possible to schedule a comprehensive review of the circumstances regarding your injury or loss as well and to investigate the legal options that may be applicable in your unique case.