Can Air Force be held legally responsible for church killer getting his gun?

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Posted: Nov 7, 2017 9:31 PM EDT

By Paul Callan

(CNN) -- This week, Americans are coping with yet another mass slaughter of the innocent by a new but strangely familiar figure, a deranged and heavily armed gunman.

The rampage by former US Air Force Airman Devin P. Kelley left a blood-soaked church filled with the bodies of 26 men, women and children who had gathered on Sunday to seek only each other's comfort and the blessings of God in a small Texas Baptist church. An unborn child is among that number. Twenty others were injured. The killer was shot and pursued by an armed good Samaritan and Kelley was found shot to death in his own vehicle. An autopsy found one apparently self-inflicted gunshot wound and two others from the armed citizen's gun.

The motive for this carnage most likely arose from a marital or domestic dispute related to his second wife or her mother, who was reportedly a member of the Sutherland Springs, Texas, church that was the site of the shootings. Neither his current wife nor his mother-in-law were present in in the church during the massacre.

Despite his very troubled history, Kelley had no trouble accumulating the firepower necessary to carry out the horrific shooting.

With this incident happening so soon after the October 1 murders of 58 innocent victims attending a country music concert in Las Vegas, the deadliest mass shooting in US history, Americans are asking who is to blame and how can such tragedies be prevented.

The answer is obvious, though the solution has been remarkably unattainable. We must find a way to keep weapons out of the hands of criminals and the mentally deranged.

But there is an additional factor in this case. The US Air Force failed to report Airman Kelley's conviction for the violent domestic abuse of his first wife following his bad conduct discharge from the Air Force. The conviction arose from his court-martial in 2013 for domestic abuse and a brutal assault on his child.

"Initial information indicates that Kelley's domestic violence offense was not entered into the National Criminal Information Center database by the Holloman Air Force Base Office of Special Investigations," said an Air Force statement issued Monday.

Had the conviction been reported -- as legally required -- to the NCIS, the nation's FBI-operated repository of criminal record information, and had the information then been available to gun retailers, the gunman would likely have been unable to purchase the weapon he used so effectively in his swift and deadly assault.

Yet under current US laws regulating the sale of guns, the grieving families of so many innocent victims in Sutherland Springs will find the road to justice and compensation in the American court system to be extremely difficult. The store that sold the gun to Kelley will be protected by strong federal laws allowing victim lawsuits only if the store knew at the time of sale that he had "a prior conviction for domestic assault.... AND ... the firearm or ammunition was transported across a state line at any time."

Since the Air Force apparently failed to properly report Kelley's the domestic assault conviction, which occurred in connection with his bad conduct discharge, the store will legitimately claim that it acted legally in selling the weapons to the soon-to-be mass murderer.

The possibility of recourse against the Air Force will also be exceptionally difficult. Generally, the legal doctrine of "sovereign immunity" protects government entities like the military from being sued for negligence and money damages.

There are, however, exceptions to the rules as a result of congressional legislation enacted through the years. One of those laws, the Military Claims Act, though long and filled with victim obstacles, does permit the military to be sued by civilians for damages "caused" by some "non combat activities." The law, though, requires the negligence of the military to be the "cause" of the injuries and deaths in question.

The military can only be held responsible for its actual percentage of fault in the Texas shootings and government lawyers would likely argue that in this case, the shooter "caused" the death and injuries, not the Air Force clerk who failed to advise the FBI of Kelley's violent domestic abuse conviction.

The Federal Tort Claims Act while providing another possible avenue for victim lawsuits also prohibits suits against the United States for "discretionary" acts. Government lawyers defending the Air Force may assert the "discretionary acts" and a number of other technical defenses, such as the claim that the Air Force error was a minor administrative mishap not rising to the level of "negligence" as required for a lawsuit.

Skilled lawyers for the families may overcome these defenses, but the battle could be long and difficult. Neither federal nor state judges will be eager to hold the government financially responsible every time a criminal buys a gun and hurts someone because a government clerk failed to file a document regarding a prior conviction.

In the end, the families of the innocent victims of this shooting should not be compelled to endure the torment of a lengthy court battle against the Air Force for its role in this national tragedy.

A better way to bring needed compensation to the families for their losses would be for Congress to enact a special legislation permitting immediate compensation to the victim's families, similar to the law passed for the victims of 9/11.

In this particular case, such a law would be fair and just, given the Air Force role in the tragedy.

Sadly, the only real justice, if you can call it that, which the families have seen so far was the death of the shooter shortly after he fled the scene of his monstrous act. We can only hope that perhaps the senseless slaughter at this Texas church finally becomes the siren call for laws which will keep guns and assault weapons out of the hands of violent criminals and the mentally ill.

The-CNN-Wire