Photo Credit: SenseiAlan, Wiki, Creative Commons 2.0
On Sunday November 5th, a man by the name of Devin Patrick Kelley opened fire on a church in Sutherland Springs, Texas, killing 26 people and injury 20 more. Victims ranged in age, from 5 to 72, and one of those murdered was a 14-year old girl, the daughter of the local pastor. Wearing tactical clothing, Kelley did his damage before being chased away by a local gun-toting citizen. Kelley was found in his car dead from a gun wound that may have been self-inflicted or caused by the armed citizen.
Shooter’s Troubling History
To complicate matters, Kelley purchased the Ruger AR-556 rifle, despite having a criminal record that should have flagged him and prevented him from purchasing the weapon. This error has been traced back to the US Air Force which failed to report the former soldier’s history of abuse. In 2012, Kelley was court-marshaled after he physically assaulted his wife and stepson, whose skull was fractured as a result of the abuse. Two years later, Kelley was discharged due to bad conduct, after being demoted to the lowest possible position. He also spent 12 months in detention.
Failure to Report
These infractions should have made it impossible for Kelley to purchase a weapon. However, the Air Force failed to submit the information to the proper channels, meaning as far as the gun sellers at the Academy Sports & Outdoors store were concerned, Kelley had a clean record when they sold him the assault rifle.
Liability
This failure could potentially make the US Air Force liable, despite a long history of government officials being shielded from such liability. Traditionally, the government is given immunity – the idea being that officials shouldn’t have to worry about legal backlash when writing policy.
But according to Timothy Lytton, of Georgia State University, the Air Force’s failure to comply with the 1993 Brady Bill – the statute requiring the military to send such information to the National Criminal Information Center database – does not constitute a policy misstep. It is, in fact, a violation of the law and, as such, may be subject to legal consequences.
Statements
A statement from the US Air Force confirms the Military’s mistake: “Initial information indicates that Kelley’s domestic violence offense was not entered into the National Criminal Information Center database by the Holloman Air Force Base Office of Special Investigations.”
A spokesperson from the Air Force said the failure resulted in illegal action: “Federal law prohibited him from buying or possessing firearms after this conviction.”
The Trouble with Lawsuits After Mass Shootings
Legal action following mass shootings often leads to frustration, as it is nearly impossible to sue gun manufacturers and distributors, and shooters often leave very few assets behind.
In this regard, according to Michael Tarm, of the Associated Press, victims and their families will be left with at least two options in the wake of the Texas church shooting: they can either sue Kelley’s estate or sue the US government. As noted by Tarm, in a lawsuit against the Air Force, the US government would be the defendant listed.
Causation
The first option would have a high chance of success but, as mentioned, it could lead to a measly payout for victims. The second option would involve its own set of obstacles. For one, the standards for causation are much higher when it comes to suing the government. As Chicago-based personal injury lawyer Tony Romanucci told Tarm, in a run-of-the-mill personal injury case, a party’s negligence only has to be one of several causes, but in a lawsuit against the federal government, “you have to show it is ‘the’ cause of the injury.”
Legal action against the federal government is made possible by the 1946 Federal Tort Claims Act. Under that statute, certain state-specific criteria would have to be employed to determine negligence.
How It Could Play Out
According to Tarm, if victims seek compensation under the FTCA, the government might attempt to settle out-of-court to avoid a potentially high award from a jury.
Due to the difficulties of this type of tort, federal courts could rule in favor of the government. In that case, victims might turn to Congress, who can pass a law granting compensation to those harmed by the Air Force’s failure.
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