SUTHERLAND SPRINGS, Texas (CN) — One day in June 2011, Tessa Kelley arrived at an emergency room near Holloman Air Force Base in New Mexico with her infant son. Her son had been vomiting and falling over, she told the doctor.
But the doctor zeroed in on something else: A bruise on the child’s cheek that hadn’t been there two days before. It was “fresh and a little purple” and “appeared to be a hand print,” he noted. He reported the incident as a possible case of child abuse.
Within weeks, the New Mexico Children, Youth and Families Department had removed the child from the Kelleys’ home. Because Tessa’s husband Devin was in the Air Force, they also forwarded the case to military investigators. But investigators apparently never followed up — “likely because,” court filings later noted, the agent assigned to the case was deployed to Afghanistan.
That incident was part of a pattern of violence and threats by Devin Kelley — a pattern that the Air Force had a duty to report to the FBI, a federal judge in Texas ruled last week.
Even while his behavior continued, Kelley was able to purchase four guns from federally licensed firearms dealers, each time passing a background check.
Using those weapons, Kelley went on to commit the worst mass shooting in Texas history, at First Baptist Church in Sutherland Springs near San Antonio in 2017. Twenty-seven people died, including Kelley, and 22 more were injured.
A lawsuit filed by the parents of a pastor who was killed in the shooting argues the government was negligent when it failed to flag Kelley in NICS, the National Instant Criminal Background Check System run by the FBI.
That pastor’s family — the Holcombes — ultimately lost three generations of family members in the shooting, including eight people and an unborn child. Their lawsuit has snaked through the federal court system since 2018, picking up relatives of other victims along the way.
Last week, U.S. District Judge Xavier Rodriguez ruled in favor of the victims and their families. The Air Force was 60% responsible for the shooting, he ruled, while Kelley carried 40% of the liability.
“No other individual,” Rodriguez explained, “knew as much as the United States about the violence that Devin Kelley had threatened to commit and was capable of committing.” That includes “Kelley’s own parents or partners,” who weren’t necessarily aware of the full extent of Kelley’s behavior.
Rodriguez, a George W. Bush appointee, took time to explain why he put the most blame on the Air Force in this civil suit, which is different from the criminal charges Kelley would have faced if he'd lived. Texas law, he wrote, allows for a “negligent wrongdoer” to be more liable in an incident than a “intentional tortfeasor” — in this case, the shooter. He cited a ruling involving an Austin daycare from 2009, in which the daycare was found to be 80% liable for not stopping child abuse while the perpetrator shared 20% of the blame.
The July 6 ruling gave the government and its lawyers 15 days to start scheduling cases for individual damages. As of press time Tuesday, it’s unclear how much the government will pay out to victims or whether federal lawyers will try to appeal the ruling.
The Air Force and the U.S. Department of Justice, which is handling the government’s defense, declined to comment on the case or whether the government would appeal, citing the fact that litigation is ongoing. Several law firms representing the victims, including the Ammons Law Firm in Houston that is leading the case, did not respond to requests for comment by press time.
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