Government officials and agencies are typically immune to civil suits, but several lawyers said it would not apply to the Air Force in this case.
Lorenzo Flores and Terrie Smith at a line of crosses in
remembrance of those killed in the shooting at the First Baptist
Church of Sutherland Springs. Thomson
Reuters
(Reuters) – The US Air Force’s failure to report the criminal
record of Devin Kelley, the man who shot dead 26 people and
wounded 20 more at a Texas church, could expose the service to
liability, legal experts said.
Kelley was convicted five years ago of assaulting his then-wife
and child while he was in the Air Force, offences that made it
illegal for him to possess a firearm.
The Air Force said on Monday it did not enter that information
into a federal database used in background checks for firearms
purchases, something it was legally required to do.
Government officials and agencies are often immune to civil
lawsuits on the grounds that they need to be able to make policy
decisions without fear of liability, but several lawyers said
that immunity would not apply to the Air Force’s failure to
report Kelley.
“We believe we have a viable case against the Air Force,” said
Houston attorney Hartley Hampton, who has been approached by the
family of one victim of Sunday’s mass shooting. But he added that
he was still researching the issue.
A spokeswoman for the Air Force declined to comment.
Law-enforcement
officials continue their investigation at the First Baptist
Church of Sutherland Springs in Sutherland Springs, Texas,
November 6,2017. Scott Olson/Getty
Images
Suing the Air Force could provide an avenue of redress for
victims of the shooting at the First Baptist Church in Sutherland
Springs, Texas. Lawsuits arising from mass shootings typically
face long odds, because federal law specifically shields makers
of guns and ammunitions from liability and it is often hard to
show what steps other parties might have taken to prevent the
crime.
No lawsuits have yet been filed, though several lawyers said that
was not unusual just days after a shooting.
Under the 1993 Brady Bill, the Air Force was required to report
Kelley’s 2012 court-martial to the National Criminal Information
Center database. That would have caused him to flunk the
background checks he passed to legally purchase firearms on two
occasions in 2016 and 2017.
Timothy Lytton, a law professor at Georgia State University, said
the Air Force would not be able to claim immunity in a lawsuit
arising from the Texas shooting because its failure to report
Kelley’s criminal record was not an act that fell within the
service’s discretion. Instead, the Air Force simply failed to
meet a legal requirement.
Lytton said that immunity from lawsuits existed to protect
officials and agencies when they uphold statutory obligations or
make policy decisions, with many court disputes centering on
whether a particular federal action can be treated as a policy
choice. But neither situation applied to the Air Force’s failure
to report Kelley, he said.
Yale Law School professor Peter Schuck agreed that immunity would
not protect the Air Force if victims and their families sued over
Kelley’s ability to purchase firearms.
“I think plaintiffs have a strong case that could prevail against
potential challenges from the government,” Schuck said.
A
memorial at the site of the shooting at the First Baptist Church
of Sutherland Springs, Texas, November 7,
2017. Thomson
Reuters
Injury lawsuits against the federal government are subject to the
same damages calculations as those against private parties but
they are exclusively resolved through bench trials, where a judge
and not a jury decides.
Even without immunity for the Air Force, Gregory Sisk, a law
professor at the St. Thomas School of Law in Minnesota, said the
plaintiffs would still need to prove both that the Air Force was
negligent and that its negligence caused the shooting.
The latter claim might prove difficult, said Sisk, as the defense
could claim that, even if Kelley had failed a background check,
he could still have committed his crime with illegally obtained
instead of legally purchased guns.
But lawyers in Texas, in the meantime, are already looking at
ways to hold the United States liable.
“There’s no question that the shooter would not have been able to
buy the guns were it not for the negligence of the Air Force,”
said Austin plaintiff’s lawyer Laurie Higginbotham.
(Reporting by Tina Bellon in New York; editing by Anthony Lin and
Grant McCool)
