devin patrick kelley sutherland springs
(Texas Department of Public Safety via AP, File)
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Devin Patrick Kelley bought an AR-15 rifle from a Texas Academy Sports + Outdoor store that he used in November of 2017 to murder 25 people in a church in the town of Sutherland Springs. Kelley passed the FBI’s NICS background check for that rifle because the US Air Force had failed — six times — to report the conviction for domestic abuse that resulted in Kelley’s discharge.

Survivors and family members have sued all of the parties involved. The Texas Supreme Court threw out a lawsuit against Academy last month, ruling that the 30-round magazine — which is outlawed in Kelley’s home state of Colorado — isn’t covered by the prohibition on selling guns that are banned in a buyer’s state of residence.

Today, a US District Court judge ruled that the Air Force is 60% (?) responsible for the deaths and injuries that resulted from their bureaucratic incompetence.

Here’s the Associated Press’s report on the ruling . . .

A federal judge has ruled that the U.S. Air Force is mostly responsible for a former serviceman killing more than two dozen people at a Texas church in 2017 because it failed to submit his criminal history into a database, which should have prevented him from purchasing firearms.

U.S. District Judge Xavier Rodriguez in San Antonio wrote in a ruling signed Wednesday that the Air Force was “60% responsible” for the deaths and injuries at First Baptist Church in Sutherland Springs. The attack remains the worst mass shooting in Texas history.

Devin Kelley had served nearly five years in the Air Force before being discharged in 2014 for bad conduct, after he was convicted of assaulting a former wife and stepson, cracking the child’s skull. The Air Force has publicly acknowledged that the felony conviction for domestic violence, had it been put into the FBI database, could have prevented Kelley from buying guns from licensed firearms dealers, and also from possessing body armor.

“Its failure proximately caused the deaths and injuries of Plaintiffs at the Sutherland Springs First Baptist Church,” Rodriguez wrote.

Kelley opened fire during a Sunday service at the church of Sutherland Springs in November 2017. Authorities put the official death toll at 26 because one of the 25 people killed was pregnant. Kelley died of an apparent self-inflicted gunshot wound after he was shot and chased by two men who heard the gunfire at the church.

The lawsuit against the federal government was brought by family members of the victims. Rodriguez ordered a later trial to assess damages owed to the families.

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    • The law allows for shared fault even when one of those at fault acted intentionally/criminally. A criminal act is not a superseding proximate cause of an injury where the negligence of other parties also caused or contributed to the injury, or, as in this case, where the negligence of the defendant contributed to the ultimate act by allowing the criminal to obtain the firearms with which he committed his crime. Perhaps this example will help explain the concept: in some states, a bar can be held liable when it serves alcohol to an obviously inebriated individual, and that individual leaves, gets into his vehicle, and is subsequently involved in an accident. The fact that the individual is responsible a) for getting drunk and b) driving while intoxicated, is not a complete defense to the bar.

      • The tendency to blame everything from the underwear the perp was wearing to the whatever he used to reek havoc is along the lines of a Salem Witch Hunt putting a wagon wheel on trial for coming off and spilling hog slop.

        And being as biden is the communist in chief there will most likely be no appeal in order to set a precedent and advance the cause.

        If the NCIC actually worked at the level the blame game plaintiffs and their attorneys want the jury to believe the crime would never have occurred. In this particular case the writing is on the wall and it says the perp was so deranged to the point he would have obtained a firearm by other means and obviously that includes murder.

      • Mark N.: ok, but if the AF is 60% responsible, what percentage falls on the dipshit himself? 40%? Less?

    • 100%, and anything to the contrary is asinine. Whatever happened to personal responsibility? I guess that’s part of a greater trend, victim culture and the like

      • I very much disagree. What you’re calling “personal responsibility” in this case amounts to suffering injustice in silence — which is not a personal responsibility at all.

        The crux of the matter is that the government made itself a responsible party by setting up its background check system, which was explicitly crafted to prevent exactly this scenario…and then one branch of the gov’t failed to follow its own rules.

        If the government had followed its own rules and the murderous piece of excrement had found a gun anyway, *then* you might have a point to make about people just wanting to pin responsibility on someone, anyone, to make themselves feel better…but that’s not what happened.

        • So the definition of “injustice” is “Any situation in which something bad happens, but doesn’t result in someone getting rich without working to earn it”?

          The government has a responsibility to punish crime and deter crime, but assigning it a categorical, tort-enforceable responsibility to prevent every crime (in which USAF’s reporting is a subset of the NICS subset) would be a disaster for the taxpayers, who are 0% to blame. It would also drive governments toward more gun control, cost-shifting like San Jose’s insurance scheme, and much more draconian “precrime” attitudes toward law enforcement in general.

        • “suffering injustice in silence” is a separate idea from personal responsibility. “Suffering injustice in silence” is a fact of life. Bad shit happens, and we’d be fools to expect that someone else will always foot the bill for our misfortune. There are ways, such as life insurance and charity, for the victim’s families to address financial hardship without burdening the taxpayer

          Umm… makes a good point. If this judge’s rationale were applied universally, the taxpayer could be held liable for every mistake the govt. makes. The scumbag alone is responsible for his actions, and the victims shouldn’t receive a dime of taxpayer money

        • You’re arguing personal responsibility where it doesn’t apply.

          The fact that the gov’t is only ever held liable via someone else’s money is a problem, but by itself doesn’t turn a legitimate grievance into something wrong.

          There is no personal responsibility not to pursue the guilty. And there IS guilt here, because the government is at fault for not following its own rules (and these aren’t only its own rules, but rules it also forces us to follow). There’s a direct chain of causation.

          My point is that it is both logical and just to expect the division, department, or person of the Air Force that failed its legal duty to bear some consequences. What form those consequences should take is a different question.

        • Personal responsibility applies to every consequence resulting from human choice. While this crime was overwhelmingly the fault of the criminal, I have no issue with holding the bureaucrat who screwed up the paperwork civilly or even criminally liable.

          One way or the other, government liability for failures of its perceived responsibilities is an enormous question of Constitutional law, which would have to derive somehow from the Constitution. Leftists might find justification in some far-fetched SCOTUS or other precedent, but the idea that it suddenly “made itself a responsible party” via either NICS or the “DV=prohibited person” laws (tiny and insignificant tools in its enormous crime-prevention toolbox) is self-evidently preposterous. And again, its creation of a bureaucracy for nearly every facet of life cannot possibly create taxpayer liability for every facet of life (Is every death from natural causes a culpable failure of [the Center for] Disease Control?) without disastrous consequences.

          The idea that the “ghetto lottery” is justice; that every non-rich victim (or relative) has a right to bypass the [generally non-rich] criminal or failure at fault, and shop around for every entity who can afford to pay (no matter how peripherally involved) epitomizes entitlement, the antithesis of personal responsibility.

    • I agree the shooter is always 100% at fault for what he did.

      The USAF is at fault for something else. For that failure the USAF is 100% at fault, not 60%.

      Maybe the percentage game makes sense if multiple bad guys were involved in a crime, or if reckless driver collides with a drunk driver. But the guy that pointed the gun and pulled the trigger is always 100% responsible for that act.

    • you are right but the Air Force is also is responsible because they did not follow thru on the paperwork following his conviction and discharge from service Just like the sheriff’s office is for not following thru and having man backer acted in Broward County Fl.before that school shooting

    • Your right he is 100% responsible for what he did. The Air Force is responsible for what they didn’t do. I retired from the AF years ago and one of the things that was drill into us was “if you don’t do your job right the first time and every time people die.” Well that is exactly what happened. Some one didn’t do their job, and the AF and the individual that drop the ball on this should be held accountable.

      • Texian, I wonder if he was tried and convicted by a civilian court. if so, then the civilian authorities should have entered it or reported it to the FBI for the NICS.

        • The news at the time said it was a military tribunal for on base assaults. The convictions lead to his being kicked out.

    • The shooting certainly was but the Air Force is indeed at fault for not properly reporting this shit bag as they should have. If only the brass at the pentagon were the ones to have to pay out of their own pocket. Either way it’s a victory for normal innocent people who were victimized at the hands of their government.

    • Pretty sure it’s Air Force – 60%, toxic masculinity – 25%, white hetero/cis gender privilege – 15%.

    • @FormerParatrooper:

      That’s what I wanted to say.

      There was a column in the Wall Street Journal, but (of course) there was no comment option. Fraidy cats.

  1. Shooter is 100% responsible. He killed the people. AF is negligent for not providing reports to NICS, but had no role in the killings.

    Lawyers are scum.

    • The lawyers are representing families whose members were slaughtered. Why does that make them scum? A lawyer is required to assert any theory of law that may allow his/her clients to recover damages. Obviously the shooter here is not paying anything–there is nothing to get. Ultimately it was the judge who accepted their theory of liability, and quite frankly it is not a stretch under the current state of the law. The AF had an indirect role in the killings because its negligence allowed a domestic abuser to obtain firearms.

    • “where the negligence of the defendant contributed to the ultimate act by allowing the criminal to obtain the firearms with which he committed his crime“

      So red flag laws are in order…

      • Typical progtard response. The government fails to follow the rules, which provides the excuse for even MORE rules it will fail to follow. And the people who get squeezed by all these rules are the same ones who will die the next time the government’s keep-everybody-safe boondoggle fails.

        What is in order is the government, and all branches thereof, following its own damn rules.

      • Miner if you weren’t so terminally dense, you’d know the existing law was in place to prevent him from purchasing firearms. If the government isn’t going to do their part in enforcing the existing law, then what makes you think a new law will change?

      • Red flag laws are not the issue here, and actually follow a completely different set of rules. The AF had a mandatory duty to report the convictions. Breach of a mandatory duty results in liability. A red flag confiscation is a discretionary act by a police officer or a judicial act by a judge, either of which is immunized and cannot lead to liability.

      • Please explain how a red flag law would of prevented this? So they can’t follow the current laws so let’s pass more. Moron, the exact definition of insanity: Doing the same thing over and over expecting different results. You and Enuf need to get a room

      • So none of you get the fact that the USAF was statutorily required to ‘red flag’ this individual because of his domestic violence conviction?

        As I read the responses then, I am forced to conclude that you folks would rather not have a ‘red flag’ law that requires the USAF to report this gentleman as having a domestic violence assault conviction, weird.

        And others seem to think “the Air Force is indeed at fault for not properly reporting this shit bag as they should have“.

        So which is it, should he have been ‘red flagged’ by the USAF or not?

        To maintain that there should be no ‘red flag’ laws yet insist that this gentleman should’ve been ‘reported’ by the USAF is intellectually inconsistent.

        • That’s the difference between us and you SA-Truppfuhrer miner49er. We are individuals. We think and act as individuals.

          We do not goose step in unison with fascist doctrine as you do.

        • “Red Flag laws” is a term with a very specific meaning, and that is what we responded to — only to find out that (of course) you’ve invented an entirely different definition of “red flag” just for this occasion.

          Miner, are you totally incapable of having an honest conversation? (Rhetorical question; the answer is obvious.)

          If you want intellectual consistency, here’s a dose of it: both the NICS background check system and “red flag” laws treat everyone as guilty until proven innocent, are abhorrent infringements of Second and Fourth Amendment rights, and should be done away with.

          However, since we can’t get the government to give up its ill-gotten power, we should at least be able to hold it responsible for fulfilling the tasks it has arrogated to itself, especially when its failure leads directly to the specific type of disaster that was its excuse for claiming that authority in the first place.

        • I’m afraid you may have some misconceptions about exactly what a red flag law is.

          “ “red flag” laws treat everyone as guilty until proven innocent, are abhorrent infringements of Second and Fourth Amendment rights, and should be done away with”

          So the individual in question had stood before a military tribunal and been convicted, he was punished by being kicked out of the military. Even though he had discharged the sentence of the military tribunal and was no longer subject to incarceration or fine, he still lost his right to own firearms?

          So in essence, the USAF should have ‘red flagged’ him to prevent him from buying firearms, taking his Second Amendment rights, even though he had already discharged his debt to society and was subject to no further discipline or sentencing.

          Isn’t that the very definition of a ‘red flag’ law, even though he discharged his sentence he was considered ‘too dangerous’ to own a firearm, depriving him of his Second Amendment rights?

          So you’re saying that in some cases the peoples right to keep and bear arms can be infringed. Interesting…

        • The article states the the air force failed to report the FELONY conviction for domestic abuse. The felony charge would have prevented him from obtaining the firearm that he purchased from a licensed ffl. So how do you get to red flag laws from that. Entirely different matter.

  2. Wanna bet the next call will be for an even stricter background check (and a waiting period)!!?

    • In this case, it would not have mattered how long the waiting period was because the convictions did not appear in the NCIS record.

      • P.S.: the Air Force had a statutory duty to report the convictions to NICS, as do the other armed services.

    • Which still won’t work if the necessary data isn’t in the database. Failure to report prohibited persons will continue to be a problem until the negligent agency is civilly liable in federal court.

      • “Failure to report prohibited persons will continue to be a problem until the negligent agency is civilly liable in federal court”

        For that you need some of those “scum attorneys” mentioned above.

        And in any case, wouldn’t the denial of firearms possession be a violation of the individuals Second Amendment rights?

  3. We knew this pretty quickly after a citizen armed himself, shot the bad guy and the news began picking up the details. So, two things:

    1. I wouldn’t mind the background check system if it worked. Too many times we hear of it being security theater. I’ve been in gun shops, been there when a NICS check declined a sale and guess what? Nothing happens. No follow-up by the cops. Which leads us to number 2:

    2. So what if the the USAF had done its job and reported the crazy violent idiot to NICS? Then he goes into Academy Sports, gets refused on the gun and nothing happens? He hasn’t been hauled in, he’s out there looking for another way to buy the gun which takes him no time at all. The killing spree still happens.

    Meanwhile, where is the punishment for failure at the USAF chain of command? A fine? The US Govt pays that. Slap some general behind bars for five years for failing in his duty and you will see some people suddenly taking real serious notice of their duty under the law.

    Another meanwhile, even if the would-be killed had been detected where is the psych ward to hold him? Where is the law to keep him there? Is it 72 hours, he’s calm and he’s free to go with a bottle of pills? How do we keep one of these violent crazy people from trying again when we lack the laws, the facilities and the funds to do so?

    Sure, the USAF is at fault. That’s true but a severe oversimplification.

    • Wait, something did happen at your guns store: the sale was declined. The fact that there was no follow up criminal investigation is not relevant to the issue presented here. The AF would not be responsible in this case if the shooter had obtained his firearm illegally.

      • It is relevant to the wider issue of stopping crazy mad killers before they kill rather than after. Declining a gun sale does nothing to prevent a crime if there is no follow-up.

        TTAG people have likely seen this too in their local gun stores. As k the shop owner sometime what happens after the declined customer leaves. How often do police come around investigating?

        I’ve had that conversation and it’s a rare day when a declined, prohibited possessor is chased after by Federal or local law enforcement. It’s a broken system, doesn’t work anyway.

        • Freedom comes with responsibility AND risk. If you want absolute safety don’t get out of bed in the morning. The only thing that can stop crazy bad guys are responsible good guys. People can be decline for many reasons that are not illegal (not having proof of residence, expired id, etc.). The federal gov does not have the man power to check every thing. You can not stopped a determined crazy person until they have done something. Just because they are crazy doesn’t mean they are dumb/stupid. (For the politically correct when I say “guys or manpower” I am not being gender specific)

        • “I’ve had that conversation and it’s a rare day when a declined, prohibited possessor is chased after by Federal or local law enforcement.”

          The problem is, there are prohibited persons out there that have no idea they are prohibited from gun ownership.

          Leftist Scum would love to prosecute people like that. Since that applies to you, ‘enuf’, I bet you would like to see a witch hunt for someone who has forgotten about a youth transgression…

      • “Wait, something did happen at your guns store: the sale was declined. The fact that there was no follow up criminal investigation is not relevant to the issue presented here.”

        I have a suggestion for dealing with that issue.

        There are legitimately people who have forgotten (or were never told) they were a prohibited person.

        So we do this – When such an instance occurs, have the person stand in front of a judge and have the judge explain to them that if they ever have stand in front of a judge again for attempting to buy a gun while prohibited, they are going to prison.

        That will stick in their memory, and they can’t claim they weren’t warned.

        And start filling the prisons with those who refuse to learn…

    • “Then he goes into Academy Sports, gets refused on the gun and nothing happens? He hasn’t been hauled in, he’s out there looking for another way to buy the gun which takes him no time at all”

      So we need universal background checks to prevent bad actors like this from obtaining access to firearms and engaging in killing sprees?

        • NCIS Does not apply to private sales

          Without universal background checks, this bad actor could buy a gun from any one of a number of gray market sources, a friend, a newspaper ad, craigslist, etc.

      • Again, the existing laws aren’t enforced, so what are harder background checks going to do?

      • Universal background checks do not prevent illegal arms sales. California has had universal background checks for decades, yet there are still criminals running around with illegally obtained firearms. But again, that is not the issue presented by this assignment of liability to the AF. The shooter was able to obtain a firearm notwithstanding his prohibited status (and likely lies on his 4473) because he was not in the
        UBC system for FFL purchases due to the negligence of the AF. Why do you keep changing the subject?

        • “Why do you keep changing the subject?”

          Mark, TTAG’s John Wayne Taylor asks him that all the damn time.

          It’s just the tap-dance of a habitual liar… 🙂

        • Not changing the subject, even if the Air Force head ‘red flagged’ this bad actor, he still would’ve been able to purchase a gun from a private individual because there are no background checks on private sales.

          “Universal background checks do not prevent illegal arms sales.“

          Speed limit laws do not prevent speeding.

          Do you also believe there should be no laws regarding speed limits because they are not 100% effective?

          Universal background checks without question will make it more difficult for prohibited persons to purchase weapons from alternatives to retail sales. Why is that so difficult a concept for most of you to grasp?

        • “Universal” background checks will make it more difficult for everyone, especially the law-abiding, to purchase weapons…and will not prevent prohibited persons from finding them in the same ways they currently obtain them.

          Why is the concept that black market sales will NEVER be stopped such a difficult concept for progbots like Miner49er to grasp?

        • “Universal” background checks will make it more difficult for everyone, especially the law-abiding, to purchase weapons…and will not prevent prohibited persons from finding them in the same ways they currently obtain them.“

          Of course they will not completely prevent prohibited persons from accessing firearms through private sales, but it will definitely help reduce the number of private sales to prohibited persons because the sellers will not want to risk selling without a background check.

          Again, why would you require universal background checks be 100% effective in stopping a prohibited person from obtaining a firearm?

          We don’t use that standard for any other law, if we did there would be no laws whatsoever.

          We have laws prohibiting driving while intoxicated, yet drunk drivers kill people every day in the United States.
          Obviously the drunk driving laws are not 100% effective, should they be abolished as well?

      • With 3D printing all gun control laws are pretty much null and void. It’s simply wasting time and money accomplishing nothing. See FGG-9 again: Insanity repeating the same thing over and over expecting different results.

        • “With 3D printing all gun control laws are pretty much null and void. It’s simply wasting time and money accomplishing nothing.“

          With radar and infrared detectors all speed limit laws are pretty much null and void. It’s simply wasting time and money accomplishing nothing.

          Do you believe that every law that is not 100% effective should be repealed?

          Most burglaries are not solved, therefore all burglary laws should be null and void?

          A very strange perspective, one that I don’t share…

  4. It should be noted that he tried to get a license to carry but was rejected by the Texas DPS.

  5. You might be able to discipline a government employee. When they do wrong. But it is impossible to fire a government employee. That happens about as often as a “Bigfoot” sighting. People can complain about police unions or teachers unions all they want.

    But no one is addressing where this all started. When President Kennedy, trying to pay off his debt, to the gangsters in Chicago, used his executive Authority. And signed an order, allowing federal government employees to unionize. Even the big government president, FDR, was against the unionization of government employees.

    Government Office Clerks cause far more problems to citizens than the police do. But no one wants to say that in public.

    • Odds are the person assigned to forward the records to the FBI is wearing a uniform, as is their superior. I believe Dereliction of Duty is still a court martial offense.

      • I can guarantee you that the Air Force base commander, a general officer, knew every detail about this case. Every court-martial or criminal complaint about domestic violence in the military is a priority issue for that base commander.

        And it’s interesting that no media is reporting the name of this military unit or the names and ranks of his chain of command.

        • btw
          There are millions more government office clerks, than there are police, in this country.

        • What military did you serve in? For most Base commanders it’s one slide in a power point presentation and they don’t get worried until it shows a large upward trend. As for Unions causing problems You are way off base. Unions for government employees are far and few these days (mostly for labor type jobs).

        • You think this was bad? At the time, the news reported that the AF had a failure to report rate of about 27% (as I recall), while the Army was greater than 50%.

        • fyi
          It was a government office clerk that started the process, that lead to the deaths of hundereds of people. Because he gave Randy Weaver the wrong date for him to appear in court. So he missed his court date. And the FBI raided his home “for refusing” to appear in court.

          A unionized government office employee. Now did he do it on purpose??? What is his or her name???

          And what is the name of the government unionized employee who shot an unarmed Ashli Babbitt???

    • This was most likely an Active Duty Air Force person at the time who did not follow up. If they still are in I hope they find a very good JAG as they will go to jail over this.

  6. I’m cool with this ruling. The air force is effed up for not giving this evil cretin years in prison for fracturing a babies skull!!! And not reporting this basturd. The murderer has no estate to sue…

  7. Personally, I’d place the majority of the blame on the mandated reliance upon the NICS system itself since we’ve had it rammed down our throats since 1994 as the panacea for preventing thugs, felons and nuts to be able to purchase a firearm. And, of course no NICS before the same-minded jerk buys an SUV to drive into a crowd, or gasoline for a bomb, or a pressure cooker, machete, or anything else from an unending list of objects that can be improvised to cause havoc and/or deaths and great bodily injury to usually-random victims.

  8. Am I the only one shocked that they actually said the government had ANY responsibility at all in this? Usually it’s “muh guns” to distract from their negligence like Parkland or The Pulse.

  9. I see SA-Truppfuhrer miner is on his usual dance to stomp on human and civil rights.

    Once a fascist, always a fascist.

      • “He certainly gets a hard on for mOrE lAwS“

        How amusing that you are thinking about my hard-on, usually it’s the attractive young ladies who show an interest…

        Whatever, as long as you don’t try to play footsie with your ‘wide stance’ in the restroom like that other Republican from Idaho…

  10. So when do they ban vehicles that are used in drive by shootings, Assault Vehicles !

    • Any vehicle used in the commission of a crime is subject to seizure and forfeiture.

  11. “Authorities put the official death toll at 26 because one of the 25 people killed was pregnant.”

    Huh. Turns out fetuses are human. Who knew?

  12. Form 4473 21.g: “Have you ever been discharged from the Armed Forces under dishonorable conditions?” Bad conduct equals dishonorable conditions….

    21.i: “Have you ever been convicted in any court of a misdemeanor crime of domestic violence, or are you or have you ever been a member of
    the military and been convicted of a crime that included, as an element, the use of force against a person as identified in the instructions?”

    Perp lied on discharge and domestic violence questions.

  13. Let’s blame the failed law, the gunm, the gunm manufacturer, and ammo.
    Let’s not blame the guy who did the shooting though.
    Right now, this very minute, I could make a phone call, take 2grand and come back with an AR sans paperwork.

  14. When Laws aren’t followed to the letter, the results is usually a shooting.
    Arvada Theater
    Sandy Hook
    Are just 4 off the top of my head, where the shooter’s actions prior to the shooting should have limited their access to a weapon. In all 4, the proper steps weren’t followed.
    I don’t hold with the Not Guilty By Reason of Insanity defense. It’s stupid and paradoxical. It should be Guilty, but Insane, with incarceration in the appropriate Mental Health Forensic Unit.

    At the end, the Shooter is the Perp. Others, were complicit by their failure to follow through and report anything that would prevent the Perp from accessing a weapon.

  15. Seems to me that the fault lies in 2 areas only; 1. The AF for not reporting the “conviction for domestic abuse” and the shooter himself; any other finger pointing seems to be useless.

  16. Meh. These percentages are just lawyers’ way of deciding who’s pocket to pick for their “earnings.”

Comments are closed.