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Last week, Devin Kelley gunned down 26 people in a church in Sutherland Springs, Texas. As it turns out, due to an Air Force court-martial for domestic violence, Kelley should never have been allowed to purchase the AR-15 military-style rifle he used in the shooting. The problem was that the Air Force never reported his conviction to the National Criminal Information Center database used for gun-buying background checks.
According to the New York Times, the Air Force admitted that Kelley's domestic violence conviction should have been entered into the database and promised to conduct a review of similar cases to determine if others had been properly reported. But could that failure also lead to civil liability in the shooting? Here's a look:
While government agencies are often given immunity from civil lawsuits based on discretionary judgments, Timothy Lytton, law professor at Georgia State University, told Reuters the Air Force may not be able to invoke immunity in this case. When it came to reporting Kelley's domestic violence conviction, the Air Force failed to meet a legal requirement and such a failure does not fall within the service's discretion.
"I think plaintiffs have a strong case that could prevail against potential challenges from the government," Yale Law School professor Peter Schuck agreed, telling Reuters immunity would likely not bar a lawsuit filed by the victims and families against the Air Force based on Kelley's ability to purchase firearms.
But just because the Air Force can be sued does not necessarily mean such a lawsuit would be successful. As other legal experts have pointed out, the central question would be whether the Air Force's clerical failure was the proximate cause of the deaths in Texas. Any injury lawsuit against the Air Force would be heard before a single judge rather than a jury, and courts have generally declined to find entities other than the shooters liable for mass shooting deaths.
No such lawsuits have been filed as of yet, but attorneys for the victims remain optimistic. "We believe we have a viable case against the Air Force," Houston attorney Hartley Hampton (who says he's been approached by the family of one of Kelley's victims) told Reuters.