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Air Force Could Face Record Lawsuits Over Texas Church Shooting
The Air Force faces many millions of dollars in potential liability for the mass shooting at a small-town church in Texas earlier this month by a former servicemember, legal experts say.
“I think it’s almost inevitable that the Air Force will be sued,” said retired Lt. Gen. Richard Harding, former judge advocate general of the service. “And I think there’s a case that can be made, you bet.”
If lawsuits against the Air Force were successful, said Don Christensen, the service’s former top prosecutor, the damages could be huge.
“What is being shot while you’re in church, watching your baby be killed — what’s it worth?” Christensen said. “I don’t see how it’s not the biggest financial payout in the history of the Air Force.”
U.S. laws rarely provide for victims of gun violence to seek compensation in civil lawsuits, and the doctrine of sovereign immunity prevents many lawsuits against the government. But this case is exceptional, experts said.
Devin Kelley, who killed and injured scores of parishioners on Nov. 5 in Texas’ worst mass shooting, was convicted of domestic violence assault in 2012 while in the Air Force. Under a 1996 law precluding spouse and child abusers from possessing firearms, the service’s Office of Special Investigations should have entered that conviction into an FBI database.
The office didn’t, the Air Force has acknowledged. What’s more, the acts Kelley pleaded guilty to — breaking his baby stepson’s skull and hitting and kicking his then-wife — were punishable by imprisonment of more than a year. That qualifies them as felonies, which must be entered into the database.
Having cleared an FBI background check, Kelley bought an AR-556 rifle from a San Antonio gun store that authorities say he used to kill 25 people, including numerous children and a pregnant woman, and wound 20 more.
The military’s failure to enter Kelley’s conviction potentially constitutes negligence. Lawsuits against the government claiming negligence are allowed to proceed in court.
Law enforcement officials work the scene of a shooting at the First Baptist Church of Sutherland Springs, Monday, Nov. 6, 2017, in Sutherland Springs, Texas. A man opened fire inside the church in the small South Texas community on Sunday, killing more than 20 and wounding others.Photos via Associated Press
“We believe there’s a good legal claim against the Air Force for their failure to report,” said Jamal Alsaffar, a partner in an Austin, Texas-based law firm that has won many millions of dollars in damages from the military, most of them in medical malpractice suits. “Had they done so, Kelley would not have been able to purchase the weapon he used.
“This was an obvious duty to report foreseeable danger. They had unique access to report, they didn’t, and I would like to know why.”
The Federal Torts Claims Act prevents lawsuits against the government for harm resulting from discretionary or policy decisions. For example, the commanding general who allowed a jury rather than the judge to sentence Kelley — resulting in his getting only a year in prison and a bad conduct discharge rather than a more appropriate longer sentence and dishonorable discharge — was “an incredible fool,” Christensen said. “But you couldn’t sue him for that because that was discretionary.”
But reporting the case to the FBI database was not discretionary. “It was required by law,” Christensen said.
Plaintiffs in FTCA cases must also show that the harm caused by the negligence was foreseeable.
”I think it’s clearly foreseeable Kelley would commit an act of violence. The threats he’s made against his wife and his commanders — they knew that,” Christensen said.
OSI also was aware of allegations that Kelley had pointed a gun at his wife and had access to weapons, even though that charge had been dropped as part of a plea agreement.
Harding said that Air Force officials for at least a decade had been talking seriously about the importance of entering domestic violence convictions into the FBI database and that it wasn’t clear why that hadn’t been done.
“If he’s assaulted his wife and broke the skull of his stepson … why would they not follow the rules?” Harding said. “How much do they care about it?”
At the end of last year, the Defense Department had only one domestic violence conviction in one of the FBI’s main gun background check databases, according to FBI records. Nearly 11,000 dishonorable discharge records — another category that precludes firearms possession — were entered.
“It’s the Air Force that’s on the hook, but it appears all the other services had issues,” Harding said.
The Air Force and the Pentagon have recently initiated audits to determine if other required records of domestic violence and felony convictions have been entered into other FBI databases. If they haven’t and the services was entering only dishonorable discharge records, thousands of servicemembers and former servicemembers could be illegally buying firearms.
Survivors and family members of those killed at the church can’t go directly to court but must first bring an administrative claim against the Air Force. Cases can be resolved at that point.
If the claim is denied or a settlement amount isn’t agreed on, plaintiffs would then file in a Texas federal court within two years of the incident.
Christensen said it’s likely that the Air Force would try to settle early on. “First, it’s the right thing to do,” he said, and would spare families from a painful trial process.
“Second, the last thing they’d want is for this to be in court,” he said. “They’d be open to discovery and a lot of things would come to light about their cavalier attitude. And there’s the potential for a huge payout, depending on Texas law,” he said.
Federal law precludes punitive damages in these cases. But plaintiffs may get damages for loss of companionship and pain and suffering, in addition to compensation for loss of income and medical and burial expenses.
©2017 the Stars and Stripes. Distributed by Tribune Content Agency, LLC.
13 Marines at Camp Pendleton charged with crimes related to smuggling of undocumented immigrants from Mexico
Thirteen Marines have been formally charged for their alleged roles in a human smuggling ring, according to a press release from 1st Marine Division released on Friday.
The Marines face military court proceedings on various charges, from "alleged transporting and/or conspiring to transport undocumented immigrants" to larceny, perjury, distribution of drugs, and failure to obey an order. "They remain innocent until proven guilty," said spokeswoman Maj. Kendra Motz.
The recruiting commercials for the Army Reserve proclaim "one weekend each month," but the real-life Army Reserve might as well say "hold my beer."
That's because the weekend "recruiting hook" — as it's called in a leaked document compiled by Army personnel for the new chief of staff — reveal that it's, well, kinda bullshit.
When they're not activated or deployed, most reservists and guardsmen spend one weekend a month on duty and two weeks a year training, according to the Army recruiting website. But that claim doesn't seem to square with reality.
"The Army Reserve is cashing in on uncompensated sacrifices of its Soldiers on a scale that must be in the tens of millions of dollars, and that is a violation of trust, stewardship, and the Army Values," one Army Reserve lieutenant colonel, who also complained that his battalion commander "demanded" that he be available at all times, told members of an Army Transition Team earlier this year.
According to an internal Army document, soldiers feel that the service's overwhelming focus on readiness is wearing down the force, and leading some unit leaders to fudge the truth on their unit's readiness.
"Soldiers in all three Army Components assess themselves and their unit as less ready to perform their wartime mission, despite an increased focus on readiness," reads the document, which was put together by the Army Transition Team for new Chief of Staff Gen. James McConville and obtained by Task & Purpose. "The drive to attain the highest levels of readiness has led some unit leaders to inaccurately report readiness."
Lt. Gen. Eric J. Wesley, who served as the director of the transition team, said in the document's opening that though the surveys conducted are not scientific, the feedback "is honest and emblematic of the force as a whole taken from seven installations and over 400 respondents."
Those surveyed were asked to weigh in on four questions — one of which being what the Army isn't doing right. One of the themes that emerged from the answers is that "[r]eadiness demands are breaking the force."
The Army thinks China will surpass Russia by 2028. Here is how the service is planning to take them on.
If you've paid even the slightest bit of attention in the last few years, you know that the Pentagon has been zeroing in on the threat that China and Russia pose, and the future battles it anticipates.
The Army has followed suit, pushing to modernize its force to be ready for whatever comes its way. As part of its modernization, the Army adopted the Multi-Domain Operations (MDO) concept, which serves as the Army's main war-fighting doctrine and lays the groundwork for how the force will fight near-peer threats like Russia and China across land, air, sea, cyber, and space.
But in an internal document obtained by Task & Purpose, the Army Transition Team for the new Chief of Staff, Gen. James McConville, argues that China poses a more immediate threat than Russia, so the Army needs make the Asia-Pacific region its priority while deploying "minimal current conventional forces" in Europe to deter Russia.
In leaked documents, Army family reports waiting weeks to have gas line and roof leaks fixed in on-base housing
As the saying goes, you recruit the soldier, but you retain the family.
And according to internal documents obtained by Task & Purpose, the Army still has substantial work to do in addressing families' concerns.