Sutherland Springs Shooting Victims Pursue Claims Against Government

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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GunVictims of the Sutherland Springs church massacre are bringing claims against the Air Force, alleging that the government’s negligence allowed the shooting to occur. While lawsuits against the government are always an uphill battle, the claims may succeed if the victims are allowed to present their evidence to juries.

Sutherland Springs Shootings

Devin Patrick Kelley entered the First Baptist Church in Sutherland Springs, Texas on November 5, 2017 and killed 26 people who were attending a church service. Kelley’s estranged wife and in-laws belonged to the church, but Kelley’s motivation for killing people who were unrelated to his wife is unclear.

Investigators have determined that Kelley sent threatening text messages to his mother-in-law before the shooting, but his mother-in-law was not in church when Kelley began shooting. Internet conspiracy theories tying Kelley to a left-wing anti-fascist movement proved to be unfounded, as are nearly all internet conspiracy theories.

Kelley wounded at least 20 victims with his assault rifle, in addition to the 26 he killed. Victims ranged in age from 18 months to 77 years old.

Kelley fled the church after exchanging fire with a neighborhood resident who was also armed with an assault rifle. Kelley crashed his car during a high-speed chase, then shot himself in the head. Kelley had two handguns in his car at the time of the crash.

Air Force Discharge

Kelley served in the Air Force from 2010 to 2014. He was court-martialed in 2012 for assaulting his wife and child. After being convicted, he served a year in confinement and was discharged for bad conduct.

The charges were based on evidence that Kelly punched and kicked his wife. He also broke his stepson’s skull. His court-martial convictions were the equivalent of felony convictions.

A federal law makes it illegal for someone with a domestic violence conviction to possess a firearm under most circumstances. To assure that the law is effective, convictions must be reported to a central database. The Air Force has admitted that its Office of Special Investigations did not report the convictions to the FBI, which administers the database.

Kelley purchased two guns in 2016 from a sporting goods store in San Antonio, including the assault rifle that he used in the massacre. Kelley passed a background check on both occasions. If his domestic violence convictions had been reported to the federal database, Kelley would presumably have found it more difficult to buy a gun.

Federal Tort Claims Act

Several of the shooting victims, or their surviving family members, have filed claims under the Federal Tort Claims Act (FTCA). As a general rule, it is only possible to sue the government if the government consents to be sued. Congress enacted the Federal Tort Claims Act to authorize lawsuits based on claims of negligence by federal employees.

The procedure begins by filing an administrative claim. If the claim is denied, the victim has six months to start a lawsuit.

When government employees have discretion about whether to take an official action, disagreement with the employee’s decision will not usually support a claim. In this case, however, the Air Force had no discretion. Federal law required it to report Kelley’s conviction. The fact that the conviction went unreported seems likely to have been a negligent failure to carry out that duty.

Legal Barriers to Victims’ Claims

The claims nevertheless face difficult hurdles. The FTCA allows an injury victim to recover compensation for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

The victims or their surviving family members must therefore prove that a government employee was negligent and that the negligence caused the victim’s injury or death. Proving negligence may not be a challenge, but the injuries and deaths were caused by Kelley. The government may argue that its error did not cause Kelley to shoot the victims. The government may also argue that, even if it had complied with the law, Kelley could have acquired guns at a flea market or gun show, where a background check is not required.

On the other hand, Kelley could not have committed a massacre without a gun, and the fact that he could have acquired a different gun without going to a licensed dealer does not mean that he would have done so. A jury might therefore conclude that the government caused the deaths of the victims by failing to enter Kelley’s conviction into a database in order to prevent him from acquiring the gun he used to commit the murders.

What Will Happen?

The victims might be aided by another lawsuit that three cities have filed against the United States. The lawsuit alleges that all branches of the military have systematically failed to report domestic violence convictions to the national database. Evidence relied upon in that lawsuit might strengthen the case of victims who claim that the government was negligent.

After a preliminary investigation, the Air Force acknowledged that its failure to comply with the reporting law was not an isolated incident. Given that admission, government lawyers might do the right thing and settle the claims before lawsuits are filed.

If lawsuits are filed, a judge will likely rule that there is sufficient evidence of negligence, given the Air Force’s admissions that it failed to carry out its duty. Whether a judge will decide that a jury could be entitled to find that the government’s negligence caused the victims’ injuries or deaths is a closer question.

If a judge allows a jury to decide the case, the question is whether sympathy for the victims will outweigh a desire to place sole responsibility on the shooter. Gun owners (and there are plenty of those in Texas) often profess the belief that people, not guns, commit murder. On the other hand, if Kelley hadn’t obtained a gun, his 26 victims would still be alive. Resolving those conflicting views is the kind of question that often divides jurors and makes trial outcomes unpredictable.

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