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Families of Texas massacre victims could sue the Air Force and win

In past instances of mass shootings, victims’ families have looked long and hard to sue someone — anyone — who could be held responsible for the death of their loved ones. Sandy Hook parents, for example, found out it’s nearly impossible to win a judgement against manufacturers of legal products like assault weapons.

But legal experts say there’s a party that could potentially be held liable in the deaths of 26 people at a Texas church last Sunday: the U.S. Air Force.

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The Air Force admitted Monday that it failed to report Devin Kelley’s 2012 domestic violence convictions to the FBI allowing the alleged gunman to purchase the firearm he used to kill masses of churchgoers in the small town of Sutherland Springs.

“That’s a big concession from the military,” said Heidi Li Feldman, a Georgetown Law School professor and expert on tort law. “They have a commitment to report these crimes and the guy doesn’t show up in the database— pretty high odds there was carelessness.”

In 1996 Congress made it illegal for people with domestic violence convictions to own guns. Law enforcement agencies are supposed to report convictions to the FBI so that when gun stores run background checks, people with a history of domestic violence are flagged and prevented from purchasing firearms. (It is common for gunmen involved in mass shootings to have a history of domestic violence.)

Kelley’s convictions, it seems, slipped through the cracks.

READ: Everything we know about Texas suspect Devin Kelley

Kelley served in the Air Force as a logistics readiness official from 2010 until 2014, when he was discharged for bad conduct. In 2012, he was convicted of two domestic violence crimes for beating his wife and crushing his infant stepson’s skull. Those convictions should have been reported to the FBI and entered into the National Criminal Information Center to prevent Kelley from being able to get the four firearms he purchased in 2014, 2015, 2016, and 2017, including the assault rifle he was armed with on Sunday. The Air Force said Tuesday that it is conducting a review of how it handled Kelley’s records.

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Lawyers say that as a result of the Air Force’s actions, victims could bring a lawsuit under the Federal Tort Claims Act, a 1940s statute that allows private citizens to sue the federal government under certain circumstances.

“This is a negligence claim along the order of suing a therapist for failure to report threats by a patient,” said Georgia State University law professor Timothy Lytton. “Here we have a case where the Air Force was in possession of information they have an obligation to report, and they failed to do that.”

READ: Texas has “gaping loopholes” in its gun laws

In the wake of other recent mass shootings, attempts to hold people other than the gunmen accountable for loss of life have been largely unsuccessful. Families of children killed in the 2012 mass shooting at Sandy Hook Elementary School in Connecticut sued the gun manufacturer that makes the firearm used in the shooting, arguing they were illegally marketing a military-style weapon to a young demographic.

A Connecticut judge dismissed the case, citing the 2005 Protection of Lawful Commerce in Arms Act, which severely limits liability for the gun industry, and the state Supreme Court is hearing the families’ appeal next week.

While the families would seem to have a strong case that the Air Force was negligent, they’d also have to show that the failure to report resulted in the loss of life.

Eugene Fidell, a military justice expert at Yale Law School, said he is skeptical anyone could prove the Air Force caused the harm in the Texas church shooting case.

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“I would bet on the government in such a lawsuit,” he said. “The intervening act is a criminal act would break any chain of causation.”

But other lawyers disagree, citing the 1996 law meant to prevent people like Kelley from buying guns to commit crimes like this one. Michael Wilson, a lawyer who has sued the military at least five times over medical negligence, said he thinks the families of the victims won’t have a problem proving causation.

“If he had stolen the gun then I think there’d be a causation issue, but in fact he got the gun legally from a gun seller because he wasn’t on the list,” he said. “[The law] is to prevent events like this from happening.”

Feldman suspects that the Air Force would settle this kind of lawsuit, which spur Congress to step in and act.

“If the problem we want to address is the prevalence of assault rifles in the civilian population this is a very roundabout way to do that,” she said. “As families of victims of mass shootings start going after other parties, this might motivate other parties to urge Congress to do something about gun control. They don’t want to be picking up the tab for something that is traceable to the push to sell weapons.”