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.
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
- 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
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.
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.