One Year After Texas Church Shooting, Families Want The Air Force Held Accountable

Nov 7, 2018

Before Devin Kelley killed 26 people at a Texas church, the Air Force failed to enter his criminal history into the FBI's background check system. Several victims' families are suing.

In the decade before Devin Kelley opened fire in a Sutherland Springs, Texas church, he spent several rocky years in the Air Force. His military career included an escape from a New Mexico psychiatric hospital and a court-martial conviction for domestic assault that resulted in the fracture of his stepson's skull.

Because of that conviction, Kelley was prohibited under federal law from buying and ammunition from a licensed dealer. But he did, after the Air Force failed to enter his criminal history information into the FBI's national background check database.

Some survivors of the shooting have sued the Air Force for damages, but they likely face an uphill legal battle.

Joe and Claryce Holcombe, members of a family that lost nine members in the shooting, filed a wrongful death claim against the Air Force in November 2017. They are asking for $25 million in damages. The government has filed a motion to dismiss the Holcombes' lawsuit.

Joe Holcombe told San Antonio TV station KSAT that his goal was to force accountability and save lives.

"We want to discipline the Air Force so that something like this is not going to happen again," he said.

Since the Holcombes filed their suit, more than 60 other people have submitted claims - either for the death of a family member or injuries sustained during the Sutherland Springs shooting. The cases are consolidated before a U.S. District Court judge in San Antonio.

"This is a unique case because the U.S. government ... has already done a substantial investigation into what happened," said April Strahan, a lawyer representing the Holcombe family.

Strahan cites reports from the Defense Department's inspector general dating back to 1997. They found that the military branches consistently failed to input crime data about service members into the national database. In 2015, the Air Force failed about 14 percent of the time.

"This is difficult to deal with," said Jamal Alsaffar, another lawyer for the families. "The heads of these departments, the Secretary of the Air Force state under oath, 'We made a big mistake and this was our fault, and we should never have let this happen and we did.' "

The Air Force says it takes responsibility for those problems, but it's also asked the judge to dismiss the lawsuit. Air Force officials refused to be in interviewed about the lawsuit, but in the motion, they argue that federal law prevents the government from being held liable.

They cite the 1993 Brady Handgun Violence Prevention Act, which protects federal employees from liability for failing to prevent illegal firearm purchases.

Meanwhile, legal scholars say that even if a judge rejects that argument, the families' lawyers face another big hurdle: They have to demonstrate cause and effect.

"The argument that's being made here by these claims is the fact that if, in fact, the Air Force had not been negligent, they would've reported this, and somehow people who are hurt wouldn't be hurt or killed. That's sort of a causation problem in the law," said Gerald Treece, a professor of constitutional law at South Texas College of Law Houston.

Treece says even if the Air Force had reported Kelley's crimes, that would have kept him from buying guns only from a licensed dealer. In Texas, no background check is necessary to purchase weapons from private sellers.

"I'm not excusing the military. I'm not excusing the mistake that was made," he said. "But at the same time, if that was the only way a person could get a firearm, that'd be one thing. But there are other ways to get it."

Treece says the Holcombes' best option may be to settle out of court. But even that is highly unlikely. He said the government may be unwilling to negotiate in this case, because that could open the door to more settlements in the future.

This story was produced by the American Homefront Project, a public media collaboration that reports on American military life and veterans. Funding comes from the Corporation for Public Broadcasting.