AUSTIN — The gunman who killed 26 people at First Baptist Church of Sutherland Springs in November 2017 had threatened mass violence while in the service, according to new court filings, and was one of more than 7,000 airmen whose criminal histories the U.S. Air Force failed to report to a federal database used to vet gun buyers.
The new information is emerging as over three dozen families continue to sue the U.S. government alleging its negligence led to the shooting.
Attorneys for the families argued in a court filing this month that the evidence is so overwhelming a federal judge should find the government negligent as a matter of law, leaving only the damages portion of the case to be tried.
A spokesperson said the Air Force does not comment on ongoing litigation. The government has sought to dismiss the claims.
Jamal Alsaffar, an attorney for several of the families, declined to comment.
The lawsuit accuses the Air Force and Department of Defense of negligence in failing to report Devin Patrick Kelley's criminal history and finger prints to an FBI database used to approve gun buyers.
The suit was filed by several families who lost loved ones or were wounded in the 2017 attack, when Kelley entered the church and killed 26 parishioners, including a pregnant woman, during Sunday services. The families claim the government's admitted failures entitle them to damages for wrongful death, pain and suffering, mental anguish, mental health care expenses, past and future lost income and earning capacity and funeral costs. No dollar figure is named in the lawsuit.
Adam Skaggs, chief counsel and policy director for the Giffords Law Center to Prevent Gun Violence, said lawsuits against the government in mass shootings are unusual.
“The lawsuit here is fairly unique in that it seeks to hold the military responsible, whereas other lawsuits brought after a mass shooting have tended to target the gun manufacturer or a gun seller,” he said.
Kelley received a bad-conduct discharge from the Air Force in 2014 after he was convicted of beating his first wife and assaulting his stepson. Two years earlier, he escaped a mental facility where he was admitted after threatening to kill his superiors.
Kelley’s criminal history should have put him in an FBI database and prevented him from buying guns. But the Air Force said it never reported Kelley’s conviction, allowing him to pass background checks to purchase a firearm he used in the massacre.
The new court filing said gaps in training that led to the failure. One unit commander testified that he received more training in preparation for his deposition than he received on how to supervise case files, the filing said. A colonel in charge of the region testified that he first learned fingerprints and felony convictions must be reported to the FBI after the Sutherland Springs shooting, the filing said.
An audit by the Air Force completed earlier this year found 7,300 instances between 1998 and 2017 where criminal indexes were deficient, which were corrected to the “fullest extent possible,” according to government documents submitted with the filing.
Additionally, the filings said Air Force officials were aware of Kelley’s capacity for mass violence and that he had researched the purchase of firearms and body armor. A colonel testified that by the end of March 2013, Air Force command knew Kelley “was a very dangerous person who was threatening to kill multiple people with guns.”
Attorneys representing the federal government said in a separate filing this month that it’s too remote to suggest Air Force personnel who failed to submit information to the FBI caused a mass shooting nearly five years later. They said that Kelley’s mass shooting was not foreseeable to the military and he knew how to purchase weapons in other ways that did not require a background check.
“The mass shooting was clearly a premeditated act that could not have been prevented by simply blocking Kelley’s ability to acquire firearms through one avenue,” the filing said.
Last year, U.S. District Judge Xavier Rodriguez dismissed the government’s motion to throw out the case and let the families case move forward.
Several other victims of the shooting are also suing Academy Sports + Outdoors, where Kelley purchased his firearm. He bought the Ruger AR-556 and at least one high-capacity magazine there in violation of Colorado law, where he was a legal resident at the time, that suit alleges.
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