Federal Trial

Our attorneys are lead counsel in an ongoing case against the Air Force on behalf of 19 families and survivors of the Sutherland Springs shooting. On July 7, 2021, the court found the U.S. Government 60% liable for failing to provide the shooter’s domestic violence convictions to the FBI. You can find the opinion here. Below is a compilation of additional materials from the trial.

Video Deposition Excerpts of Air Force Officials Admitting the Shooting was Foreseeable

Air Force Officials’ Deposition Filings

  • James Hoy, Superintendent, Holloman Air Force Base, New Mexico 2011.
  • Randall Taylor, Special Agent in Charge for the Devin Kelley Investigation.
  • Col. Owen Tullos, Staff Judge Advocate at Holloman Air Force Base during the Devin Kelley investigation and through his conviction.
  • Col. Robert Bearden, Devin Kelley’s Commander at Holloman Air Force Base from June 2012 through Devin Kelley’s imprisonment and discharge from the Air Force.
  • Maj. Nathan McLeod-Hughes, Director of Operations and Commander of Devin Kelley’s squadron during the criminal investigation of Devin Kelley.

Air Force Leadership Documenting Kelley as Extreme Danger

“AB Kelley has a well-documented history of making threats of physical violence, researching methods of carrying out violence, and a conviction for assaulting his wife and infant step-son. We concur with the 49th Security Forces’ plan to implementation of stringent physical control measures of AB Devin P. Kelley for the duration of his presence at Holloman AFB.”

(JEX-403, Page 2)

“Additional evidence of Kelley’s high risk unpredictable and criminal behavior includes his history of mental health issues, his preoccupation with weapons, his verbal declaration that he has contemplated offensive attack strategies on both Air Force personnel and organizations (including his leadership and SFS), his online research of body armor and guerrilla warfare tactics while a patient in a military mental health facility, his possession of and purchase of weapons, and his successful escape from a military mental health facility.”

(JEX-403, Page 1-2)

“I view this Airman as a threat to not only myself, but my staff and other Airmen in this Squadron.”

(JEX-403, Page 7)

Air Force Task Force Report on Kelley

“Investigating Officer (Col Zoerlein) finds sufficient evidence to assert the following: 1) Det 225 personnel were derelict in their duties to properly index D. KELLEY’S criminal history data; 2) improper indexing was a widespread problem in AFOSI at the time of the D. KELLEY investigation; 3) Command policy and training appeared adequate but key Det 225 personnel did not know/understand AFOSI focus area or the target of any Command metrics; 5) 2 FIR leadership actions were appropriate but it is possible more attention would have disclosed CHD indexing shortfalls.”

(JEX-27, Page 62)

Background

Victims of the Sutherland Springs church shooting, the worst mass shooting in Texas history, may be able to sue the Air Force for negligently allowing the shooter to purchase guns. The Air Force admitted that it failed to enter a domestic violence court-martial into a federal database that would have blocked gunman Devin Kelley from buying the rifle that he used to kill 26 people in the shooting. This new information means that the Air Force may be liable for damages to shooting victims for wrongful death or personal injury under the Federal Tort Claims Act (FTCA). When the negligence of federal employees causes foreseeable injury, the federal government is responsible for paying monetary damages for that harm.

The federal law requiring Kelley’s conviction to be recorded in the database was enacted to prevent exactly this type of harm. The database was created to prevent certain violent criminals from obtaining guns and killing others. Under terms of a 1996 amendment to the Gun Control Act, known as Lautenberg Amendment, the law lists 11 criteria that would bar someone from purchasing a firearm, including 2 that would have applied to Kelley.

Kelley enlisted in the Air Force in 2010 and received a bad conduct discharge from service in 2014. While in the Air Force, Kelley was convicted of domestic assault on his wife and infant stepson, cracking the child’s skull. He was sentenced to one year’s confinement.

This domestic violence conviction alone should have stopped Kelley from legally purchasing the military-style rifle and three other guns he bought in the last four years. Kelley’s conviction of a crime punishable by more than a year in prison also required his entry into the database. Both would have flagged Kelley as ineligible to buy the weapons, if the FBI had been made aware of either of these facts. But the Air Force admits it failed to enter his name for either reason into the federal database for background checks on gun purchasers.

Air Force personnel knew better than anyone how dangerous this particular criminal was and had the obligation to warn others by recording his conviction in the FBI’s database.

Kelley opened fire even before he entered the church, unloading bullets into the walls from outside. Then, inside the church he continued his attack, killing 23 parishioners inside. Two more people were killed outside the church, and another died being transported to the hospital.

The Air Force released a statement that the Air Force secretary and the Air Force chief of staff had ordered the Air Force inspector general to work with the Pentagon’s inspector general to “conduct a complete review of the Kelley case and relevant policies and procedures.” The Air Force also said that it was looking into whether other convictions had been improperly left unreported. “The service will also conduct a comprehensive review of Air Force databases to ensure records in other cases have been reported correctly,” the statement said.

Victims of the worst mass shooting in Texas history range from just 18 months to 77 years.

“This clearly fell under federal law, without a doubt,” said Don Christensen, the Air Force’s top prosecutor whose office oversaw Kelley’s Air Force prosecution. “The Air Force is supposed to report the information to FBI. It was possible that it was never reported. It’s possible that somebody in the Air Force just blew it.”

Who Can Bring a Lawsuit Against the Air Force?

Victims of this shooting and their families may be able to bring a FTCA claim against the Air Force for their injuries and losses. There are many pitfalls to properly presenting these claims and families should first obtain legal advice from attorneys who handle FTCA cases. Our law firm handles FTCA claims against the Air Force in Texas and nationwide. Our Texas FTCA lawyers are available to speak to anyone interested in more information about bringing a claim against the Air Force for this senseless but preventable tragedy.

How do you sue the Air Force for the Sutherland Springs shooting?

When bringing a claim (or filing a Sutherland Spring shooting lawsuit) against the Air Force, claimants must follow the strict rules of the Federal Tort Claims Act. This means that claims must be individually filed. You cannot bring a class action against the Air Force.

  • First, an administrative claim must be presented to the Air Force.
  • Form 95 must be filed with the correct federal agency at the correct federal address.
  • The Form 95 must state the nature of your claim and what’s called a “sum certain.” Whatever damages are listed on the form becomes the maximum that you can recover at trial. It’s important not to put a number too low on this form.
  • The Form 95 must be signed and filed within 2 years of accrual of the negligence. This is a term of law under the FTCA—you should seek legal counsel to understand when your claim accrues.

Once the Form 95 has been presented to the Air Force, then you must work with the Air Force to try to resolve your claim. There are a lot of pitfalls if you do not know what you are doing. If you cannot successfully resolve the claim administratively, you have the option of filing suit against the United States in federal court so long as you file within the appropriate limitations period. Once you have filed your form 95, you must wait at least 6 months (maybe more depending on the course of your administrative claim) before you can file a federal lawsuit. The federal lawsuit can be filed either where the negligence occurred or where the plaintiffs reside, which means a lawsuit could be filed in Texas federal court in this case.

How Long Do I Have To File A Claim Against the Air Force?

The FTCA requires a claim to be presented within 2 years of the date of negligence and injuries unless the negligence could not have been discovered earlier. In this case, while the Air Force negligence took place in 2012, the victims were not injured until November 5, 2017. The public could not have learned of Air Force negligence until November 6, 2017 when it became public that the Air Force failed to enter this information into the FBI’s database. Under a Supreme Court case Kubrick v. United States, arguably victims of this mass shooting have 2 years from November 6, 2017 to bring a claim against the Air Force.

What Damages Can Be Recovered?

Victims of this tragic shooting may be able to recover damages for wrongful death and survivor damages. The damages available include damages for physical pain and mental anguish, lost earnings, funeral and burial expenses, loss of consortium and other damages. Survivors of the shooting may be able to recover for past and future medical expenses, lost earnings, physical pain and mental anguish, physical and mental impairment, physical disfigurement, and other damages.

How Much Do You Charge? Is There Any Risk?

If you or a loved one is a victim of this tragic mass shooting, call us. We may be able to help. Our attorneys do not charge an hourly fee or a retainer. We take cases only on a contingency fee basis, which means we never take any fee unless we recover a settlement or trial judgment on your behalf. Under the FTCA, attorneys’ fees are capped at 20% if the case resolves administratively, or 25% after suit is filed. We advance all case expenses, which can be sizable when suing the federal government. If we do not obtain a recovery on your behalf, we never ask the clients to pay back the expenses. Our clients do not owe fees or expenses unless there is a recovery.

Why Is This Firm The Best Choice for a Sutherland Springs Lawsuit or Claim?

Our firm obtained one of the highest judgments against the Air Force in FTCA history in a Texas case, Dickerson v. United States. We have decades of experience bringing claims against the Air Force both administratively and in trial in federal court. We have taken cases against the Air Force all the way to the United States Supreme Court on behalf of our clients. Our lawyers have a proven track record and can represent you from the administrative claim stage all the way to the United States Supreme Court if necessary. We know the players in the Department of Justice who have the power to resolve high-stakes claims and we have the financial resources and experience to bring your claim against the Air Force. Our attorneys have decades of trial experience and are able to assist you in this process. Please contact us if you need a free evaluation of your claim.

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