A federal court ruled Tuesday that the U.S. Air Force is 60% responsible for the worst mass shooting in Texas’ history because it failed to report the criminal history of former serviceman Devin Kelley who executed 26 people at the First Baptist Church of Sutherland Springs before killing himself in 2017.
U.S. District Judge Xavier Rodriguez in San Antonio noted in his ruling after a bench trial that the Air Force was negligent when it failed to submit Kelley’s criminal history to the FBI, which would have prevented him from purchasing the guns he used to carry out the massacre at the church on Nov. 5, 2017.
“The Court concludes that the Government failed to exercise reasonable care in its undertaking to submit criminal history to the FBI. The Government’s failure to exercise reasonable care increased the risk of physical harm to the general public, including Plaintiffs. And its failure proximately caused the deaths and injuries of Plaintiffs at the Sutherland Springs First Baptist Church on November 5, 2017. The Court finds the United States 60% responsible for this harm and jointly and severally liable for the damages that may be awarded,” Rodriguez wrote.
A video of the massacre of the 26 members of the First Baptist Church of Sutherland Springs, shows Kelley methodically shooting his victims, including children, in the head in an episode that lasted for several minutes inside the church's sanctuary, law enforcement reported at the time. At least eight members of one family, including a pregnant mother, were killed.
Police say Kelley unleashed about 450 rounds of ammunition on the helpless congregation and survivors say the shooter, who later killed himself, expressed an intention to execute the entire congregation.
Court documents shared by The Ammons Law Firm, one of several firms representing families of the victims in the lawsuit against the federal government, show that the Air Force was acutely aware of the danger posed by Kelley and that he even threatened to carry out a mass shooting while he was in the service.
Dr. Harold J. Bursztajn, a psychiatrist, testified that Kelley was psychotic. And the Air Force knew that he enjoyed abusing animals and dismembering them because he told them so. His mental health had deteriorated so badly while in the service that he had to be committed to a mental health facility on two occasions.
A just under 2,000-page transcript from the trial cited evidence from records in which an Air Force colleague worried that “Kelley had a coldness about him and that he wasn't all there. Her uneasiness regarding Devin Kelley resulted in telling her supervisor, Sergeant Troy Bizzack, 'We need to watch this guy because he's the kind of person who will come in and shoot everybody.'"
“It's safe to say that the Air Force knew more than anybody else in Devin Kelley's life that this was a deeply depraved, mentally unstable man who had extensive violence that the Air Force knew more about than any other person in his life. And that included sexual violence, physical violence, domestic violence. And now we know more than we knew before, extensive threats of mass shooting violence,” plaintiff attorney Jamal K. Alsaffar argued during the trial.
Lieutenant Colonel Bearden, the commander of the 49th Logistics Readiness Squadron at Holloman Air Force Base, documented warnings about Kelley.
"AB Kelley has repeatedly threatened to kill his leadership,” he noted on March 22, 2013. "I view this airman as a threat not only to myself but to my staff and the other airmen in this squadron. I have communicated my concerns to the security forces/commander Lieutenant Boyd. And he will be providing the unit an armed escort during his out-processing."
The evidence showed that before Kelley was eventually discharged from the service, he went AWOL twice and the Air Force was so concerned about the threat he posed to his colleagues they even had to assign someone to watch him while he slept.
"The patient, during his hospitalization, also made threats that if he was discharged to the military police, he would try to disarm the police and either be killed or kill someone. At that point, measures were taken to prevent that from happening,” one statement on Kelley noted.
In addition to that, Kelly was convicted of assaulting his then-wife, Tessa Brennaman, and his stepson in November 2012 by General Court-Martial.
If the government had entered Kelley’s criminal history into a federal background check database used for gun purchases, according to Rodriguez, he would have been prevented from carrying out the mass shooting at the church.
“The trial conclusively established that no other individual—not even Kelley’s own parents or partners—knew as much as the United States about the violence that Devin Kelley had threatened to commit and was capable of committing,” the judge wrote. “Moreover, the evidence shows that—had the Government done its job and properly reported Kelley’s information into the background check system—it is more likely than not that Kelley would have been deterred from carrying out the Church shooting.”
A later trial to assess damages owed to the families is expected to take place at a later date.