Air Force denies church shooting was foreseeable
Government lawyers defending the Air Force in the Sutherland Springs mass shooting trial said Devin Kelley’s supervisors could not foresee that he would open fire at the First Baptist Church and kill 26 parishioners three years after he was forced out of the service.
They also claimed Tuesday that Kelley could have gotten his guns other than through licensed gun dealers. It’s a critical issue in the trial to determine whether to hold the Air Force liable for its failure to report Kelley’s criminal conviction to the national firearms database, a procedure that would have prevented him from legally buying weapons from a licensed dealer.
The government is trying to convince U.S. District Judge Xavier Rodriguez that even if he finds the Air Force liable after the trial ends next week, the Air Force shares liability with Kelley and Academy Sports and Outdoors, where he bought the assault rifle he used in the massacre.
Families of victims of the Nov. 5, 2017, shooting sued the Air Force for not reporting his 2012 domestic violence conviction. He served a year in prison before the Air Force discharged him for bad conduct. The military and government agencies long have been required to report felony convictions to the national firearms database.
Testimony in the trial last week established that the Air Force knew when Kelley was at Holloman AFB in New Mexico that he
had sexually and physically abused teens when he was younger, physically abused women he had relationships with and a stepson, bought guns, threatened to kill his own leadership and had mental issues leading to violence.
At one point, the Air Force got a restraining order barring Kelley from Holloman. In a pretrial ruling declining to dismiss the suit, the judge wrote that the Air Force had more than 20 opportunities to correct its failure to report his conviction to the National Instant Criminal Background Check System, or NICS.
Government lawyer Paul Stern argued that many incidents involving Kelley were only allegations, or “specifications” (charges) that Kelley was not convicted of, and did not require the Air Force to report Kelley to NICS.
Stern has listed five points summarizing laws or legal precedent that the feds believe shield the Air Force from liability over the failure to flag Kelley. Among them, Stern argued, was that the Air Force had no duty to protect the public because it was not foreseeable that Kelley would have committed the mass shooting.
Calling Stern’s argument “interesting,” the judge noted earlier testimony from one of Kelley’s supervisors who told agents investigating the massacre that when Kelley arrived at Holloman, the supervisor and co-workers were concerned Kelley might later “kill us all.”
“You know the Air Force foresaw that he was a danger,” Rodriguez said. “So the Air Force potentially knew he could potentially be a mass shooter and so they foresaw this, or could have foreseen this.”
“I’m not making any final rulings now. There’s fact issues still remaining that would cause this motion to be denied on the foreseeability issue,” Rodriguez added. “But the Air Force was concerned enough to get a restraining order placed against him that would bar him from re-entering the facility, so apparently the Air Force was protecting themselves. It’s disappointing (to hear this argument) from the government that … they had no duty to protect the rest of us.”
Kelley, who was in the Air Force from 2010 to 2014, was leveled with several “specifications” while in the service, including pointing a gun at his first wife’s head during domestic violence incidents. Some of his problems were handled at Holloman AFB with letters of reprimand.
In his court martial, he pleaded guilty to two specifications: Hitting, kicking and choking his first wife between June 24, 2011, and April 27, 2012, and assaulting her infant son with his hands between April 27, 2011, and June 16, 2011. As part of a plea deal, he was confined for one year in military jail and given a bad conduct discharge in 2014.
William Ryan, assistant chief counsel for the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, testified Tuesday that only Kelley’s guilty plea of the abuse of the child, because it was a domestic violence conviction and because of the boy’s young age, would have prohibited Kelley from legally buying a firearm.
Neither specification Kelley pleaded guilty to involved a gun, another way one gets flagged, Ryan said.
Because all other “specifications” were withdrawn or dismissed, Stern asked Ryan, could they be considered in determining whether Kelley was prohibited under the Gun Control Act?
“No, they would not have been relevant under the statutory prohibitors,” Ryan replied.
“Did any conduct other than these two specifications create an obligation by the Air Force to submit Devin Kelley’s information to NICS?” Stern asked.
“No sir, not under the Gun Control Act,” Ryan said.
“If Devin Kelley was not adjudicated a mental defect, or involuntarily committed, could his mental health issues create an obligation by the Air Force to submit information to NICS?” Stern asked.
“Not as it pertains to prohibitors under the Gun Control Act, sir,” Ryan replied.
Records presented Tuesday show Kelley bought all three guns recovered after the massacre at dealers: A 9 mm pistol at Specialty Sports & Supply in Colorado Springs on Dec. 22, 2014; the assault rifle at Academy in San Antonio on April 7, 2016; and a .22-caliber pistol at another Academy on Oct. 10, 2017.
Ryan implied that Academy shares fault for the tragedy for selling Kelley the assault rifle, which came with a 30-round magazine. Kelley used his Colorado driver’s license to buy it, and Colorado banned large-capacity magazines in 2013. Ryan said the Gun Control Act makes it unlawful for a licensed gun dealer to violate the law in another state during a gun sale.
“Was it a violation of federal law?” Stern asked.
“Yes, sir, it was,” Ryan answered.
Academy has denied any wrongdoing. It is not a defendant in the federal lawsuit, but the families sued it separately in state court. The case is pending at the Texas Supreme Court.
Another defense witness, retired ATF agent Steve Barberini, testified that Kelley could have gotten a similar assault rifle anywhere besides a licensed dealer.
“AR-15S are the most popular gun out there,” said Barberini, who trains agents under contract at the ATF academy. “If he wanted the same model, he just had to search longer.”