The Sutherland Church Shooting and the DOJ

 

The Department of Justice is getting ready to appeal a federal judge’s decision that the USAF bears some responsibility for the ability of the shooter to legally purchase firearms. From USA Today:

On Nov. 5, 2017, Devin Patrick Kelley fired more than 450 rounds at First Baptist Church using guns he purchased from licensed firearms dealers. He also fatally shot himself.

Kelley served about five years with the Air Force and was discharged in 2014 after he was convicted of assaulting his wife and stepson. That conviction meant Kelley was legally barred from purchasing or possessing a firearm.

But the Air Force failed to report the conviction to an FBI database that tracks criminal history. That means Kelley wasn’t flagged when firearm retailers ran background checks. Instead, he was able to buy four firearms from licensed federal dealers over the course of several years and used three in the shooting.

A subsequent investigation by the Department of Defense inspector general found the Air Force had four opportunities to submit Kelley’s fingerprints to the FBI and two opportunities to submit a final report but did not.

A federal judge in 2021 ruled the Air Force is “60% responsible” for the shooting. Last year, after a second trial, the judge said the branch must pay more than $230 million in damages to survivors and victims’ families. This summer, the DOJ filed an appeal to overturn the rulings.

From an NBC article:

It also did not warn others of a pattern of behavior that led to him being banned from all U.S. military bases. The Air Force was aware of death threats he made against his family, military security forces, police officers and members of his squadron, court records show.

At the first trial:

At the first trial, the Justice Department argued background checks would not have stopped the shooting because Kelley could have obtained a firearm through other means.

On appeal, the Justice Department does not explicitly argue that submitting Kelley’s criminal records to the FBI would not have made a difference, said Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research who testified during trial.

Rather, the department argues the Texas court used the wrong legal standard for assessing the duty of the federal government to prevent harm. “The United States is not liable for Kelley’s actions, and is certainly not more responsible for those acts than the murderer himself,” the brief said.

There are individuals that should not possess anything sharper than a crayon, to include a firearm. You cannot prevent everyone from committing a crime once they have formed the intent to commit a crime. That being said, there is a database available for gun dealers to prevent the sale of a firearm to convicted felons. The NCIC and NCIS database only works if courts send the FBI conviction reports to enter those individuals in the database.

I’m interested in the settlements that were reached that may imply a bias on who the DOJ will agree with on a settlement. The perception of justice, or injustice depending upon who the victims are, damages the DOJ.

In 2021, the Justice Department reached an $88 million settlement with victims’ families and survivors of the 2015 shooting at Mother Emanuel AME Church in Charleston, South Carolina, over claims the agency was negligent in failing to prohibit the sale of the firearm used in the massacre.

The following year, the U.S. agreed to pay $127.5 million to the families affected by the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida, over claims the FBI failed to stop the gunman despite receiving information he intended to cause violence. 

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  1. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    As you know, I’m no gun or legal expert, but these data struck me:

    Doug Watt: But the Air Force failed to report the conviction to an FBI database that tracks criminal history. That means Kelley wasn’t flagged when firearm retailers ran background checks. Instead, he was able to buy four firearms from licensed federal dealers over the course of several years and used three in the shooting.

    Doug Watt: Rather, the department argues the Texas court used the wrong legal standard for assessing the duty of the federal government to prevent harm. “The United States is not liable for Kelley’s actions, and is certainly not more responsible for those acts than the murderer himself,” the brief said.

    It just seems like these are the key factors to consider. I don’t think the feds can be blamed for his shooting people; as also stated, he could have gotten a gun somewhere else. The idea of assigning a % of blame to the govt. sounds ridiculous to me. He committed the act. He’s to blame. But I’m open to being corrected.

    • #1
  2. Doug Watt Moderator
    Doug Watt
    @DougWatt

    Susan Quinn (View Comment):

    As you know, I’m no gun or legal expert, but these data struck me:

    Doug Watt: But the Air Force failed to report the conviction to an FBI database that tracks criminal history. That means Kelley wasn’t flagged when firearm retailers ran background checks. Instead, he was able to buy four firearms from licensed federal dealers over the course of several years and used three in the shooting.

    Doug Watt: Rather, the department argues the Texas court used the wrong legal standard for assessing the duty of the federal government to prevent harm. “The United States is not liable for Kelley’s actions, and is certainly not more responsible for those acts than the murderer himself,” the brief said.

    It just seems like these are the key factors to consider. I don’t think the feds can be blamed for his shooting people; as also stated, he could have gotten a gun somewhere else. The idea of assigning a % of blame to the govt. sounds ridiculous to me. He committed the act. He’s to blame. But I’m open to being corrected.

    The Air Force has the same duty as state courts to report felony convictions and misdemeanor domestic violence convictions to the FBI for entry into the NCIC and NCIS databases. That wasn’t done. Mr. Kelley purchased his weapons after his conviction from an FFL gun dealer.

    • #2
  3. Hoyacon Member
    Hoyacon
    @Hoyacon

    Susan Quinn (View Comment):

    As you know, I’m no gun or legal expert, but these data struck me:

    Doug Watt: But the Air Force failed to report the conviction to an FBI database that tracks criminal history. That means Kelley wasn’t flagged when firearm retailers ran background checks. Instead, he was able to buy four firearms from licensed federal dealers over the course of several years and used three in the shooting.

    Doug Watt: Rather, the department argues the Texas court used the wrong legal standard for assessing the duty of the federal government to prevent harm. “The United States is not liable for Kelley’s actions, and is certainly not more responsible for those acts than the murderer himself,” the brief said.

    It just seems like these are the key factors to consider. I don’t think the feds can be blamed for his shooting people; as also stated, he could have gotten a gun somewhere else. The idea of assigning a % of blame to the govt. sounds ridiculous to me. He committed the act. He’s to blame. But I’m open to being corrected.

    The idea is that there are “joint tortfeasors” here that require an apportionment of damages.  If we can reasonably conclude that the event would not have happened but for the actions of more than one entity, the damages will be split up.  My guess is that the government’s appeal is more about trying to reduce the percentage allocated to the Air Force than it is about showing the AF was not responsible at all.

    • #3
  4. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    With Susan I have qualms about holding a “mandatory reporter” such as the U.S. government responsible for the subsequent willful actions by a person who should have been reported.

    I think what the underlying facts show is that society is deluding itself by thinking that any regulation or system is going to be successful at keeping tools completely away from people who may commit harm with those tools. 

    • #4
  5. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    To follow up on Hoyacon’s comment #3, which is correct, I want to add the following details.

    The traditional common law rule about “joint tortfeasors,” meaning two or more people responsible for the same damages, was “joint and several liability.”  This rule meant that the plaintiff could pursue recovery from any or all of them, and could collect 100% of the damages from any one of them.  Total recovery, though, was limited to 100%.

    At common law, the joint tortfeasors did not generally have a right to what we call “contribution” among each other.  So if there were damages of $1 million, with 2 tortfeasors both 50% responsible, the plaintiff could make one of them pay the full $1 million, and that tortfeasor would not be able to recover half from the other tortfeasor.  This rule was modified, in a number of states (including Arizona), to allow such “contribution.”  This could leave a single tortfeasor paying 100% of the damages, but only if the others were insolvent.

    More recently, some states (including Arizona) adopted a “comparative fault” rule, in which the jury apportions “fault” among the tortfeasors, and each one is responsible for paying only his or its own percentage of fault.  This leaves the risk of insolvency of any particular tortfeasor on the plaintiff.  In Arizona, there are a couple of exceptions to this rule, such as the “acting in concert” exception, which maintains the old rule of joint and several liability for tortfeasors who act according to a common plan or design to commit an intentional tort.

    There’s also a wrinkle regarding “contributory negligence,” not presented by the facts in the OP.  Sometimes, the negligence of the injured party also contributed to the injury.  At common law, any contributory negligence at all was a complete bar to any recovery by the plaintiff.  More modern statutes in many states (including Arizona) provide that the “comparative fault” rule also applies to any possible fault of the plaintiff.

    To make things even a bit more complex, the Arizona statute and court rules allow a defendant to identify “non-parties at fault” to whom fault can be allocated.  The plaintiff could then add such non-parties as additional defendants, though only if they are subject to the jurisdiction of the court involved.

    • #5
  6. Steve Fast Coolidge
    Steve Fast
    @SteveFast

    Doug Watt (View Comment):

    Susan Quinn (View Comment):

    As you know, I’m no gun or legal expert, but these data struck me:

    Doug Watt: But the Air Force failed to report the conviction to an FBI database that tracks criminal history. That means Kelley wasn’t flagged when firearm retailers ran background checks. Instead, he was able to buy four firearms from licensed federal dealers over the course of several years and used three in the shooting.

    Doug Watt: Rather, the department argues the Texas court used the wrong legal standard for assessing the duty of the federal government to prevent harm. “The United States is not liable for Kelley’s actions, and is certainly not more responsible for those acts than the murderer himself,” the brief said.

    It just seems like these are the key factors to consider. I don’t think the feds can be blamed for his shooting people; as also stated, he could have gotten a gun somewhere else. The idea of assigning a % of blame to the govt. sounds ridiculous to me. He committed the act. He’s to blame. But I’m open to being corrected.

    The Air Force has the same duty as state courts to report felony convictions and misdemeanor domestic violence convictions to the FBI for entry into the NCIC and NCIS databases. That wasn’t done. Mr. Kelley purchased his weapons after his conviction from an FFL gun dealer.

    It seems clear that the Air Force was badly disorganized at best and probably badly irresponsible. But that is different than the legal liability, and I would like to know what that is.

    • #6
  7. Mad Gerald Coolidge
    Mad Gerald
    @Jose

    This is a mess, and as usual the government wants things both ways.

    Doug Watt:

    At the first trial:

    At the first trial, the Justice Department argued background checks would not have stopped the shooting because Kelley could have obtained a firearm through other means.

    What?  The government is arguing that background checks don’t stop shootings? 

    From the article From USA Today:

    Lawyers for the victims struck a harsher tone, claiming the brief “dealt a blow to America’s safety” by asking the Fifth Circuit to find that background checks “do not work to prevent gun violence.”

    Critics say the DOJ’s argument stands in direct conflict with President Joe Biden’s efforts to bolster background checks and “red flag” laws that deny guns to people who are deemed to be dangerous.

    The government is arguing that laws they have imposed don’t work!  So they shouldn’t be accountable!

    • #7
  8. Doug Watt Moderator
    Doug Watt
    @DougWatt

    Steve Fast (View Comment):

    Doug Watt (View Comment):

    Susan Quinn (View Comment):

    As you know, I’m no gun or legal expert, but these data struck me:

    Doug Watt: But the Air Force failed to report the conviction to an FBI database that tracks criminal history. That means Kelley wasn’t flagged when firearm retailers ran background checks. Instead, he was able to buy four firearms from licensed federal dealers over the course of several years and used three in the shooting.

    Doug Watt: Rather, the department argues the Texas court used the wrong legal standard for assessing the duty of the federal government to prevent harm. “The United States is not liable for Kelley’s actions, and is certainly not more responsible for those acts than the murderer himself,” the brief said.

    It just seems like these are the key factors to consider. I don’t think the feds can be blamed for his shooting people; as also stated, he could have gotten a gun somewhere else. The idea of assigning a % of blame to the govt. sounds ridiculous to me. He committed the act. He’s to blame. But I’m open to being corrected.

    The Air Force has the same duty as state courts to report felony convictions and misdemeanor domestic violence convictions to the FBI for entry into the NCIC and NCIS databases. That wasn’t done. Mr. Kelley purchased his weapons after his conviction from an FFL gun dealer.

    It seems clear that the Air Force was badly disorganized at best and probably badly irresponsible. But that is different than the legal liability, and I would like to know what that is.

    Let me clarify what I believe:

    The gun manufacturer is not liable. They ship weapons to FFL gun dealers. The FFL seller conducting the mandated backgrounds is not responsible. They cannot deny a purchase on info that is not in the NCIC, NCIS, or local law enforcement data bases.

    That leaves the Air Force who did not report the conviction. They also banned him from all military bases but couldn’t find the time to notify the FBI. They bear some responsibility for not following the law.

    Gun advocacy groups will say that the only thing that will work is gun confiscation and use this situation to punish law abiding citizens.

    • #8
  9. Doug Watt Moderator
    Doug Watt
    @DougWatt

    Here are the Federal disqualifiers for purchasing a firearm. I highlighted disqualifiers the Air Force failed to report to the FBI.

    convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
    who is a fugitive from justice;

    who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802);

    who has been adjudicated as a mental defective or has been committed to any mental institution;
    who is an illegal alien;

    who has been discharged from the Armed Forces under dishonorable conditions;

    who has renounced his or her United States citizenship;

    who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or

    who has been convicted of a misdemeanor crime of domestic violence.

    • #9
  10. Flicker Coolidge
    Flicker
    @Flicker

    Mad Gerald (View Comment):

    This is a mess, and as usual the government wants things both ways.

    Doug Watt:

    At the first trial:

    At the first trial, the Justice Department argued background checks would not have stopped the shooting because Kelley could have obtained a firearm through other means.

    What? The government is arguing that background checks don’t stop shootings?

    From the article From USA Today:

    Lawyers for the victims struck a harsher tone, claiming the brief “dealt a blow to America’s safety” by asking the Fifth Circuit to find that background checks “do not work to prevent gun violence.”

    Critics say the DOJ’s argument stands in direct conflict with President Joe Biden’s efforts to bolster background checks and “red flag” laws that deny guns to people who are deemed to be dangerous.

    The government is arguing that laws they have imposed don’t work! So they shouldn’t be accountable!

    I think they’re arguing that they don’t stop gun crimes completely.

    • #10
  11. Jim McConnell Member
    Jim McConnell
    @JimMcConnell

    Susan Quinn (View Comment):

    As you know, I’m no gun or legal expert, but these data struck me:

    Doug Watt: But the Air Force failed to report the conviction to an FBI database that tracks criminal history. That means Kelley wasn’t flagged when firearm retailers ran background checks. Instead, he was able to buy four firearms from licensed federal dealers over the course of several years and used three in the shooting.

    Doug Watt: Rather, the department argues the Texas court used the wrong legal standard for assessing the duty of the federal government to prevent harm. “The United States is not liable for Kelley’s actions, and is certainly not more responsible for those acts than the murderer himself,” the brief said.

    It just seems like these are the key factors to consider. I don’t think the feds can be blamed for his shooting people; as also stated, he could have gotten a gun somewhere else. The idea of assigning a % of blame to the govt. sounds ridiculous to me. He committed the act. He’s to blame. But I’m open to being corrected.

    But the Government has all this money… Right?

    My friend the lawyer says, “Never mind who is at fault, always go after the deep pockets.”

    • #11
  12. Barfly Member
    Barfly
    @Barfly

    Full Size Tabby (View Comment):
    With Susan I have qualms about holding a “mandatory reporter” such as the U.S. government responsible for the subsequent willful actions by a person who should have been reported.

    Me too. I can support a penalty for failure to report, but that crime (wrong word?) ought to be judged and penalized on its own. How clear is the law here?

    • #12
  13. ctlaw Coolidge
    ctlaw
    @ctlaw

    District Court docket:

    https://www.courtlistener.com/docket/7075074/holcombe-v-united-states/

    Circuit Court docket:

    https://www.courtlistener.com/docket/66707060/holcombe-v-united-states/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

     

    • #13
  14. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    Doug Watt (View Comment):

    Gun advocacy groups will say that the only thing that will work is gun confiscation and use this situation to punish law abiding citizens.

    ?

     

     

     

    • #14
  15. TBA Coolidge
    TBA
    @RobtGilsdorf

    My feeling is that the Air Force needs an IG investigation and an internal systems investigation to find out why they didn’t file these reports and make changes. Secondarily, a scrutinizing of the individuals who failed to report to find out what motivated/demotivated them and punish if appropriate. 

    The judge has little to no authority to make this happen. All he can do is make them pay money. 

    • #15
  16. Doug Watt Moderator
    Doug Watt
    @DougWatt

    Mad Gerald (View Comment):

    This is a mess, and as usual the government wants things both ways.

    Doug Watt:

    At the first trial:

    At the first trial, the Justice Department argued background checks would not have stopped the shooting because Kelley could have obtained a firearm through other means.

    What? The government is arguing that background checks don’t stop shootings?

    From the article From USA Today:

    Lawyers for the victims struck a harsher tone, claiming the brief “dealt a blow to America’s safety” by asking the Fifth Circuit to find that background checks “do not work to prevent gun violence.”

    Critics say the DOJ’s argument stands in direct conflict with President Joe Biden’s efforts to bolster background checks and “red flag” laws that deny guns to people who are deemed to be dangerous.

    The government is arguing that laws they have imposed don’t work! So they shouldn’t be accountable!

    Worse yet, because the laws didn’t work because the data wasn’t sent to the FBI then it’s time for law abiding citizens to give-up their firearms.

    • #16
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