At least three families are filing negligence claims against the federal government, arguing the U.S. Air Force is responsible for the deaths of loved ones gunned down earlier this month at First Baptist Church of Sutherland Springs.
Members of the Holcombe, Johnson and Ramsey families — who combined lost a dozen people in the shooting — have hired attorneys, and could eventually sue the federal government if they’re unsatisfied with its response. Several more claims, from other families of the deceased as well as those injured, are in the works.
“The government is here to protect and, in this case, they aided this man,” said Ronald Ramsey, whose mother Therese Rodriguez and her husband, Ricardo Rodriguez, were both killed by gunman Devin P. Kelley. “They have skin in the game.”
In the wake of the Nov. 5 shooting, the Air Force admitted it failed to report Kelley’s past domestic violence convictions to the FBI’s national database, crimes that would have kept him from legally possessing a firearm. The mistake instead allowed Kelley — who was court-martialed, jailed and eventually discharged — to easily purchase the rifle he used to kill 26 people and injure at least 20 more.
The oversight with Kelley was not an isolated incident, the Air Force said this week.
Experts agreed the Air Force’s errors make what happened in Sutherland Springs unique, exceptional from a legal perspective. This might be the first time in modern history, they said, that a straight line connects a mass murder to a mistake that may have prevented it.
“The whole problem is the Air Force didn’t report (expletive),” Gary Ramsey, Therese Rodriguez’s son, told The Dallas Morning. “They need to fix it all, and they need to be punished. Greatly.”
‘They were priceless’
Deanna Staton still reaches for Pa’s coffee mug every morning. She hasn’t accepted her father Dennis Johnson is no longer here, that both her parents were killed that day at church almost three weeks ago.
“I’ll find myself reaching for my phone to call her,” Staton said of her mother, Sara Johnson, whom everyone called Nanny. “I want to tell her what’s happening, or I want to ask her a question.”
The Johnson family decided soon after the shooting to take legal action against the federal government. They will file two wrongful death claims, they said, one each on behalf of Dennis and Sara’s estates, and six more survivor claims for each of the children the couple left behind.
On each form they’ll have to quantify their pain and suffering, put a dollar amount on their grief. But son Michael Staton said money is the furthest thing from their minds. The family wants answers.
“Anything is not going to be enough,” Staton said, standing by the Christmas tree in the family’s living room. A pair of lawyers sit nearby ready to answer their questions. “They were priceless.”
The U.S. military is required to report the crimes its recruits commit to the FBI’s National Instant Criminal Background Check System. Federal law prohibits anyone found guilty of domestic violence from possessing a firearm.
Kelley was convicted of domestic violence in 2012 for assaulting his then-wife and infant stepson, after which he was admitted to and broke out of a New Mexico mental health facility. He was confined for 12 months and received a bad conduct discharge, but the Air Force failed to report his crimes to the FBI.
According to the preliminary results of a review released this week, Kelley’s was not an isolated incident but one of at least dozens of “similar reporting lapses” in the Air Force.
A 2014 review by the Defense Department Office of Inspector General showed the Air Force Office of Special Investigations “was not reporting (Defense Incident-Based Reporting System) information during the period of August 2012 through January 2013.” It blamed the lapses on “program administrators departing before replacements were trained on their responsibilities.”
Kelley was convicted in November 2012. The Air Force did not respond to The News’ questions about whether the 2014 report explained why Kelley’s crimes were not reported to the FBI.
Another DoD report written the following year showed 28 percent of convictions between June 2010 and October 2012 were not reported by the armed forces.
The Johnsons want to know why the reporting problem hasn’t yet been fixed? How many other convicted felons have fallen through the cracks, gotten guns and inflicted violence? Any why haven’t more convicted felons been prosecuted for attempting to purchase firearms?
It might be a long time before they get answers, but the family is willing to wait. Their top priority now making sure these same mistakes aren’t repeated, said granddaughter Kati Wall.
“Next time that somebody’s not in the system it could be your mother,” said Wall, who was adopted by Dennis and Sara when she was four years old. “If the system worked the way it was intended to…this might not have happened.
“I will fight tooth and nail.”
Families like the Johnsons have a long legal road ahead, experts said.
First, they have to file their claims, after which the government has six months to respond. If they don’t like the terms of the terms of the settlement, or if the Air Force rejects them, the families can then take the government to court.
Due to the doctrine of sovereign immunity, it’s usually almost impossible to sue the federal government. But under the Federal Tort Claims Act, people can seek damages in limited cases if they can prove direct negligence on the part of the government.
There is no cap on the amount that can be recouped, but only close family (parents, spouses or biological or legally adopted children) are eligible to bring wrongful death suits under Texas law.
Consequences from “discretionary” decisions — like how long a judge decides to jail a criminal — are not covered under the act, said Don Christensen, the former chief prosecutor for the Air Force. But what happened in Sutherland Springs is unique, he added, because the armed services are required to report soldiers’ crimes, which the Air Force has already said it failed to do.
John Culhane, a law professor at Widener University Delaware Law School, said “if the government is smart, they’ll offer a pretty nice sized settlement to the people who were killed and the people who were injured.”
If they don’t settle, the families could take the government to trial. In that case, Christensen said, “I would say the Air Force loses.
“They have a huge litigation risk. And a huge bad publicity risk.”
Wall said her grandfather, a veteran twice over, would be “mortified” if he was alive to see the mistakes made by the military in which he served for decades. Deanna Station sighed.
“He would be ashamed of them.”
‘The Air Force is not perfect’
Not every family wants to pursue legal action.
First Baptist Pastor Frank Pomeroy and his wife Sherri, who lost their 14-year-old daughter Annabelle in the attack, don’t plan on filing a claim. They hope U.S. Sen. John Cornyn, R-Texas, follows through on his promise to pass a law to penalize government agencies that fail to report crime statistics to the FBI.
Family members of Peggy Warden, 56, who died while shielding her grandson, have not discussed whether they want to pursue legal action. But Warden’s brother, Jimmy Stevens, said he personally doesn’t want to go that route.
“The Air Force process evidently fell short somewhere, but a person who would commit some kind of act like that — I don’t know if I can blame that on the Air Force,” Stevens told The News. “It’s a huge nation and there are a lot of steps involved to make sure nobody who’s that sick walks into a gun retailer and buys a gun. But the Air Force is not perfect, and neither are we.”
Steven’s focused on the healing of Peggy’s grandson, Zach Poston, 18, who was shot in the arms and legs. The family faces a potentially expensive road ahead as Poston recovers mentally and physically. Legal action could bring more financial help. But it can’t possibly accomplish what the victims’ families really want, Stevens said.
“Whatever we do here is not going to bring our loved ones back to our side.”
‘I wasn’t born yesterday’
The Ramseys filed their claim on Wednesday. In it, they accuse the Air Force having “utterly failed” in its duties to report Kelley’s crimes to the national database.
“Simply put, Therese Rodriguez’s death was caused, in whole or in part, by the institutional failures of the United States Department of Defense, including, but not limited to, the United States Air Force,” Ronald Ramsey’s claim reads. “These entities negligently, recklessly, carelessly, and/or egregiously failed.”
The Ramsey claim is nearly identical to one filed earlier this week by Joe and Claryce Holcombe, who lost nine family members from three generations in the shooting, including their unborn grandchild.
“We just want the Air Force to get their act together,” Joe Holcombe told The News. “They can’t correct this mistake. It’s already been made. But they can fix it so it doesn’t happen in the future.”
Rob Ammons, the Holcombes’ lawyer, is coordinating with Ramsey’s attorney. Other families of the deceased or injured could forward in the coming months, Ammons said, once medical bills and other costs associated with the shooting are clearer. They have two years to file a claim.
“I’d love to say I trust the government — that they’re going to come and do the right things for these families. But I wasn’t born yesterday,” Ammons said. “Joe is 86. He has a lot of questions he wants answered, and doesn’t have time to waste.”
By Lauren McGaughy, The Dallas Morning News
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