National Trial Law Outlines Overview And Timeline Of Government Reporting Failures That Resulted In A National Tragedy

ONE YEAR LATER: SUTHERLAND SPRINGS CHURCH SHOOTING

AUSTIN, Texas--(BUSINESS WIRE)--The following information is provided by the legal team representing a majority of the Sutherland Springs victims and their families to ensure factual reporting as it relates to the one-year anniversary. Twenty-six people were murdered and twenty others wounded on Sunday, November 5, 2017 when former U.S. Air Force Airman Devin Kelley opened fire at the First Baptist Church of Sutherland Springs in Sutherland Springs, Texas.

This mass shooting was caused, in part, by the United States Air Force’s failure to report Kelley’s criminal and psychiatric history to the FBI’s National Instant Background Check System (NICS). Licensed firearms dealers cannot sell or transfer firearms to any person without first running this instant background check according to 18 U.S.C. § 922.

By federal law and according to the Department of Defense manual, Kelley should have been prohibited from purchasing a firearm based on three separate incidents:

• His domestic violence conviction;
• His incarceration for a crime punishable by more than one year;
• His commitment to psychiatric inpatient care.

Additionally, Texas-based Academy Sports + Outdoors violated various federal and state gun laws in arming Kelley, then a Colorado Resident, with a Ruger AR 556 Model 8500. Federal law 18 U.S.C. § 922(b)(3) requires that a firearm sale be compliant with both the laws of the purchaser’s resident state and the state where the transaction takes place. The Ruger AR 556 Model 8500 is not legal to sell in Colorado because it is designed to hold 30 rounds, and Colorado law, Colo. Rev. Stat. § 18-12-302, forbids the sale of rifles designed to hold more than 15 rounds. Kelley represented himself as a resident of Colorado at the time of sale on Form 4473 and took delivery of the gun in Texas. These laws should have stopped Kelley from purchasing the firearms used to commit the church massacre.

The Timeline Leading Up To November 5, 2017

• January 2010: Devin Kelley entered active duty with the United States Air Force. According to his court martial transcript, during Kelley's service, military officers were advised Kelley was attempting to carry out death threats made to his commanding officers. He was also caught trying to sneak firearms onto Holloman Air Force Base.
• April 2011: Devin Kelley married Tessa K. Kelley.
• 2011-2012: According to his court martial transcript, on multiple occasions, Kelley assaulted Tessa K. Kelley. One incident involving his stepson resulted in the infant suffering a fractured skull. Kelley later admitted to these assaults in a video confession.
• April 2012: As a result, the government ordered Kelley to be confined to Peak Behavioral Health Services. While at Peak, Kelley tried to obtain firearms and conducted research into body armor as stated in his pretrial confinement documents.
• June 2012: Kelley escaped Peak Behavioral Health Services by jumping a fence having made arrangements to purchase a firearm. Texas authorities caught him the next day before he could buy a gun, also stated in his pretrial confinement documents.
• June 2012: Kelley was ordered into confinement at the 49^th Security Force Squadron facility. The Air Force noted:

The Evidence shows a serious escalation of behavior involving firearms and threats after the physical abuse of a child. Particularly alarming is his decision to try to obtain another firearm while undergoing inpatient mental health care, conducting research on body armor, and then escaping from the facility late at night without authorization….

Lesser forms of restraint are inadequate to mitigate the flight risk he poses nor would they prevent him from carrying out the threats that he has made against others, especially given the forethought and planning that he showed by attempting to purchase another firearm and his escape from the mental health facility. – Probable Cause Memo

• July 2012: One charge and five specifications were listed in Kelley’s trial result including battery, assault with a dangerous weapon, and battery against a child under the age of 16 years old.
• August 2012: Kelley’s charge sheet shows the original charge, along with an additional charge of assault with a dangerous weapon, was referred to trial by general court martial.
• November 2012: Kelley pleaded guilty to two counts of assault. According to Kelley’s court martial transcript, the Air Force sentenced Kelley to confinement for twelve months, a bad-conduct discharge, and reduction in rank to the grade of E-1.
• March 2013: Kelley was released from confinement, as shown in his court martial order.
• May 2014: Kelley was discharged from the Air Force, also shown in his court martial order.
• 2012 – 2017: Although required by law, no information pertaining to Devin Kelley’s domestic violence conviction, his incarceration for a crime punishable by more than one year, or his commitment to psychiatric inpatient care was reported to the FBI’s National Instant Criminal Background Check System (NICS), Interstate Identification Index, or the National Crime Information Center as confirmed by Secretary of the Air Force Heather Wilson. Any one of the three items listed above would have disqualified Kelley from purchasing a firearm.
• 2016 & 2017: Kelley purchased firearms in Colorado and Texas, after passing the FBI’s NICS.
• April 2016: A receipt from Academy shows the store sold the Ruger AR-556 Model 8500 used in the shooting and equipped Kelley with high capacity ammunition magazines in violation of federal law and the laws of his state of residence as noted above.
• November 5, 2017: Twenty-six people were murdered, and twenty others wounded when Devin Kelley opened fire at the First Baptist Church of Sutherland Springs in Sutherland Springs, Texas.
• November 6, 2017: Air Force spokeswoman Ann Stefanek: “Federal law prohibited him from buying or possessing firearms after this conviction … initial information indicates that Kelley’s domestic violence offense was not entered into the National Criminal Information Center database by the Holloman Air Force Base Office of Special Investigations.”
• November 7, 2017: Secretary of the Air Force Heather Wilson: "We've taken responsibility and we're going to find out what happened and fix it." Sec Wilson admitted it’s "pretty clear that the check list we use was not followed by the local office."
• December 13, 2017: First lawsuit filed against Academy Sports + Outdoors arising from the Sutherland Springs shooting, Plaintiff’s Original Petition, Cause No. 2017CI23341.
• June 6, 2018: First lawsuit filed against the United States of America arising from the Sutherland Springs shooting, Complaint filed by Joe & Claryce Holcombe.
• November 2, 2018: Government’s deadline to file Motion to Dismiss by order of U.S. District Judge Xavier Rodriguez.
• November 30, 2018: Plaintiffs’ deadline to file Response to Motion to Dismiss by order of U.S. District Judge Xavier Rodriguez.
• December 14, 2018: Government’s deadline to file Reply to Response to Motion to Dismiss by order of U.S. District Judge Xavier Rodriguez.

Before the Sutherland Springs shooting, the United States Inspector General cited all branches of the military for failing to report data to the required databases - in 1996, 2014, and again in 2015 in three separate reports. The military promised to fix the problem but failed to do so. The Secretary of the Air Force Heather Wilson admitted to Congress that the reporting failure was not limited to this case. Rather, the military’s reporting failure was widespread and had happened thousands of times before, according to Sec. Wilson.

Lawsuits have been filed on behalf of victims and relatives against the Air Force for negligence based on its failure to report (complaint filed by Joe & Claryce Holcombe). Some victims have filed lawsuits against Academy Sports + Outdoors for failure to comply with existing gun laws (Plaintiff’s Original Petition, Cause No. 2017CI23341).

In September, U.S. District Judge Xavier Rodriguez ruled that all cases against the government are to be consolidated. Despite admitting wrongdoing in systematically failing to report dangerous individuals into the background check system, the government told Judge Rodriguez that it intends to file a motion to dismiss on November 2 seeking to dispose of all cases filed by the Sutherland Springs victims and their families. Academy also continues to deny responsibility.

The Law Firms Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham, and Jacob, PLLC (National Trial Law Firm, Austin, TX); Speiser Krause (Washington, DC); The Ammons Law Firm (Houston, TX); and O’Hanlon, Demerath & Castillo (Austin, TX) are pursuing justice for more than 70% of the victims and known family members. The Monument Group, LLC (Austin, TX) has been retained to assist with public communication. Questions can be directed to Travis Thomas at [e-mail] or [phone].