There was a remarkable decision by a Texas federal judge this week when U.S. District Judge Xavier Rodriguez for the Western District of Texas ruled that the Air Force was legally at fault for the 2017 mass shooting in Sutherland Springs, Texas by Devin Patrick Kelley. The Air Force failed to enter a prior offense into the federal background check database to bar him from purchasing a firearm. The liability alone is notable but Rodriguez found the Air Force more at fault that Kelley for the killing of 26 people and wounding of 22 others in the massacre at the First Baptist Church.
Judge Rodriguez found that Kelley was 40 percent responsible for the shooting while the U.S. government was 60 percent responsible.
The failure to enter the data allowed Kelley to make four separate firearm purchases in preparation for his attack. The National Instant Criminal Background Check System (NICS) showed Kelley as eligible to buy such firearms despite his 2012 conviction by a general court martial of domestic assault on his wife and child. That should have made him ineligible.
The ruling of liability is a major victory for those who want tougher gun enforcement. Such a judgment against a federal agency is exceptionally rare.
The division of responsibility however seems inversive to logic. To say that the Air Force is more responsible than a mass murderer is bizarre. It reminds me of the case of Alisa Prueitt, 43, who killed another driver in 2013 in a drunk-driving case. Prueitt had been sent home by her employer, Southlake-based Senior Living Properties, for showing up intoxicated. The family sued both Prueitt and the company. A jury then awarded $16.7 million to the family of Sam Graham, including $5 million in punitive damages, in a wrongful-death lawsuit. However, it found Pruiett only 35 percent responsible while finding Southlake-based Senior Living Properties 65 percent responsible.
This was likely a clerical error with tragic results. It is not clear that Kelley would not have succeeded in acquiring weapons regardless of the error. However, there is clearly fault and a nexus present in this case to the fatalities. The failures of the Air Force were documented in an Inspector General report. Yet, it is otherworldly to suggest that the Air Force is more responsible for these deaths than the murderer himself. The ruling makes Kelley look more like a mere accomplice to an Air Force murder spree.
This really shows the folly of government thinking more laws are the answer. The law existed, the government failed to make/keep proper records. No new law was needed.
When you think about it, its not much different than charging the getaway driver of a planned robbery with accessory to murder when the robbery goes south. The theory is, the murder would have been far less likely to occur if the gunman had no ready means of escape. Therefore the getaway driver facilitated the robbery and thus has some culpability.
I agree with another respondent, until we enforce the laws on the books – in this case about reporting to NICS, – no change will occur until the oversight carries with it definite penalties. Its about time a judge held a government agency accountable for a crime an individual would be prosecuted for.
The NICS system already has a huge enforcement problem. Only 3% of of persons illegally attempting to purchase firearms through the system are charged. Its time to add the FBI to the list of culpable organizations. Maybe then we will see some progress in gun violence.
Normally, I would agree with you guys and our esteemed professor, but I might have done the same thing as Judge Rodriguez. This isn’t the first time the military has “overlooked” an extremely dangerous nut, resulting in a lot of people killed in Texas. Remember the Fort Hood shooter, Nidal Hasan? Some of his fellow officers suspected him of terrorist sympathies, but they were afraid to speak up.
I could forgive the military once, but twice? Hmmm. Maybe it was time to send the feds a message to up their game.
Speaking of game, remember the wingnut who shot our congressman at a baseball game in 2017? He should have been red flagged for conduct in Illinois, but somehow Illinois never got around to dealing with him. Then there was the crazy kid in Broward County, Florida. Everybody saw it coming except for woke law enforcement.
The Democrats flap their yappers about gun control, but when the laws and suspects are obviously there, too often the deep state fails to deliver.
Gotta call out the malfeasance if you want to call out their lies about how great gun control works.
I do not have a problem holding government accountable for its mistakes.
But findings of third party liability for crimes are extremely rare – and should be.
Further in no sane world is ANYONE other than the criminal more responsible than the criminal.
“The NICS background check system is comprised of three different databases. The main FBI one is the NICS Indices, but as of December 2016, there is just one person entered by the military as committing abuse against their spouse. About half of all states also report few or no abuse convictions and restraining orders. The FBI tells us the records may reside in the other two databases, however the FBI did not make those numbers available to CBS News.”
https://www.cbsnews.com/news/nics-failure-national-instant-criminal-background-check-system/
Failure to accurately report to NICS is a serious problem.
Sometimes, we don’t need new laws; we need to properly employ the current ones.
Yes
+1
This poor excuse for a man had a long history of threatening, disturbing behavior, including fracturing his baby stepson’s skull, animal cruelty, and stalking ex girlfriends.
https://www.nbcnews.com/storyline/texas-church-shooting/who-devin-kelley-alleged-texas-church-shooter-n817806
https://www.nytimes.com/2017/11/07/us/texas-shooting-church.html
He threatened to kill people on base, was sent to a psychiatric hospital, escaped, and was arrested at a bus stop.
This all happened years before his mass shooting.
It is unclear whether he’d been involuntarily committed, or sent there for a psychiatric evaluation. I don’t know if a psychiatrist ever diagnosed him, or if he escaped before that could happen. I thought the hospital itself could also report to NICS.
I’ve reached the limit on links, but the federal rules on prohibiting firearms to the mentally unstable are as follows.
“Federal regulations define a person as “committed to a mental institution” if a court, board, commission, or other lawful authority has formally committed him or her to a mental institution. The term is defined to include involuntary commitments for “mental defectiveness or mental illness.” It also includes commitments for other reasons, such as drug use, but does not include people admitted to a mental institution voluntarily or for observation (id.). (The Department of Justice has proposed amending the regulations to include people ordered to receive outpatient treatment—see 79 Fed. Reg. 774”
The person must be a danger to themself or others, or lack the mental capacity to handle their own affairs.
This person sure as heck sounded like a danger to himself and others. I think this is one of the ways mass shooters slip through the cracks. It appears that they have to actually kill someone to get committed.
The AF was negligent in not reporting the domestic violence incident. He bashed in a baby’s skull.
He was never adjudicated mentally incompetent. Since he committed suicide, he never will be. Without a psychiatric evaluation that would indicate he was incompetent, then the majority of responsibly lies with Kelley, while the Air Force shares a minority of the blame for its negligence in failure to report to NICS.
Both the feds and some states fail to accurately report to NICS.
While I think it is reasonable to hold the government partly accountable here.
We also need to be careful about the rules we make and their unintended consequences.
We confiscate guns from people or bar them from purchasing them for a variety of reasons.
I have no problem with a person losing a right as a consequence of past criminal conduct.
I have no problem denying them the right to own guns. I have no problem denying them the right to vote.
But when we start restricting rights based on things that are not criminal conduct – we create all sorts of unintended consequences.
If you make mental health a criteria – you incentivize people to NOT seek help when they need it.
I’m not a lawyer, paralegal or anything remotely close so I can’t talk to the legal findings here only ask questions. But from what I read, the stuff the Air Force withheld that your blog post doesn’t mention is that he escaped from a mental health facility that he had been placed in by the Air Force. So apparently they knew of some mental health problems with the guy. If he was in fact of some kind of diminished capacity I imagine the judge could be looking at it like he’s not mentally sound, they are. So they’re the responsible ones here. Same as if a child breaks a window. Its not the child that’s responsible, its the parent. The judge seems to be looking at the US Air Force as they’re the responsible ones because they knew he was mentally unbalanced and so they have “more” responsibility because he’s of some sort of diminished capacity and they are not.
Not justifying or condemning the ruling, don’t know if its a good one or not. Just that’s what it sounds like to me.
The UCMJ did not have a Domestic Violence Article (Law) and thus the Air Force could not report a conviction for Domestic Violence….and that would cause no entry into the National Database for the Shooter.
The entire DOD had to change the way it handles Domestic Violence as a result of that shortcoming.
But…don’t ya’ll let facts get in the way of a good rant!
Hard to imagine how the person who planned and executed the crime can be less than 50.01% liable no matter how many others were negligent in some fashion or other. Unless he is of diminished mental capacity such that he is not criminally liable, at all…but that does not appear to be what the Court said..
I am an Air Force veteran. I am not so sure that convictions by military courts are submitted to any national data base. Regardless, the fault lies with Kelly who went berserk and decided to kill Christians.
I wonder how the judge was able calculate the responsibility percentages? So, someone has a concealed weapon permit. If she enters an establishment that forbids weapons, and is assaulted, could she successfully sue the establishment? On the other hand, another person who was assaulted with a firearm inside an establishment that does not ban weapons could also sue.
My only question is where in the Second Amendment does it give the power to limit gun ownership of anyone, let alone felons?
behold:
“big government” at work…
So, does that this mean that in Judge Rodriguez’ district, if a judge releases a violent offender on bail who then commits a felony, the court is 60% responsible?
I could warm up to this judgement.
The only thing the air force is at fault for is a clerical error. The notion that they share ANY fault for this nuts mass shooting spree is insane.
Democrat judge, I don’t even have to look it up. 100% sure of it.
Actually he was named to the court by GWB, and is a former Associate Justice of the Texas Supreme Court.
Way for the judiciary to build respect among ordinary Americans.
The American thesis is Freedom and Self-Reliance, which includes self responsibility.
“Gun control” and “gun laws” are oxymoronic contradictions in terms.
The only law on guns allows Americans to keep and bear them absolutely.
Let’s all read it together including you dolts, anti-American enemies perhaps, in the judicial branch:
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2nd Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Prof. Turley, your title could have been “Lunatic judge over thinks Lunacy”. The hammer of that gun needed a finger on that trigger and only one man’s mind conspired to commit this hellacious act. God forbid we tell it straight.
Mark, that’s to simple and strait forward.
The judicial branch, with emphasis on the Supreme Court, is the singular American failure.
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“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“…men…do…what their powers do not authorize, [and] what they forbid.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
Turley wrote, “Yet, it is otherworldly to suggest that the Air Force is more responsible for these deaths than the murderer himself in my view.”
I agree; however, shifting blame away from the choices and actions made by the individual criminals, etc and onto others is becoming standard fare in the USA and social justice warriors are the primary reason why this nonsense is happening. Social justice warriors want to remove all individual responsibility for any criminal activity and close the jails and prisons put it all the responsibility on others. Social justice warriors have actually been successfully advocating for the police and the justice system to completely ignore criminal activity, heck they excuse theft because the individual must “need” what they steal, the companies have insurance to replace it and therefore they shouldn’t be prosecuted. Social justice warriors think that if a thief breaks into your house you should let them steal what they want because they “need” it and you can just replace it, this nonsense is actually happening in the USA.
These kinds of things enable criminal activity.