CORPUS CHRISTI, Texas, Jan. 15, 2018 — On Tuesday, a federal court judge in San Antonio will hold a telephonic hearing regarding whether Air Force personnel should be deposed sooner rather than later as to their knowledge of Sutherland Spring's shooter, Devin Patrick Kelley and the role of the Air Force in failing to report his military conviction—which would have prevented his purchasing firearms.
Under 28 U.S.C. § 2401, which is part of the Federal Tort Claims Act, anyone who wishes to sue the United States Air Force, must serve the Air Force with a notice of a claim 6 months before filing the lawsuit and before discovery, including depositions can begin.
Bob Hilliard, one of the attorneys representing the victims requesting the depositions, stated:
“It is remarkable to me that the Air Force will not agree to our request and is going to court to attempt and block the victims' access to vital information.
“The Air Force has conceded it played a role in failing to report Kelley's military conviction—which would have prevented his purchasing firearms, as he would not have passed the federally mandated background check.
“I want to take the sworn depositions of those inside the Air Force who failed to follow the law and who knew Mr. Kelley and how dangerous he was.
“Memories fade. If we are required to wait 6 months or more, vital and specific facts important to this case may be lost. We should be allowed to obtain the sworn depositions now of the individuals who interacted with Mr. Kelley and who have personal knowledge of Mr. Kelley during his time in the military.
“There is no prejudice to the Air Force if it is required to produce these individuals now instead of 6 months from now. This will assure that all victims and their families will have the benefit and the use of this testimony.
“There is no 'if', there is only 'when' regarding taking the sworn depositions of Air Force personnel. We are simply asking the Court to allow us to begin taking a very limited number of depositions now to help preserve the accuracy of the facts and ensure the information is preserved.”
On November 7, 2012, while serving in the United States Air Force, Kelley plead guilty in a court-martial proceeding to domestic violence assault charges, for violent acts committed against his wife and stepson. The allegations supporting this sentence included unlawfully striking, choking, kicking, and threatening his wife with a loaded firearm, and striking a child in the head and body with force likely to produce death or serious bodily harm. Pursuant to the plea, numerous other charges were dismissed, including charges that Kelley pointed firearms at his wife on more than one occasion. Kelley was demoted, was issued a bad conduct discharge and sentenced to twelve months of confinement in a military prison.
Federal law requires that the United States Air Force (USAF) report military convictions for assault under Article 128 (domestic violence) to the federal data base system for conducting background checks for firearms purchases. The purpose of this legal obligation is to prevent individuals convicted of domestic violence from purchasing firearms.
“Kelley was prohibited by law from purchasing or possessing firearms and ammunition due to the military conviction for domestic violence,” Hilliard said.
“The Air Force failed the victims and their families and American people This horrific tragedy could have been prevented.”
Case No. SA-17-MC-1210-XR
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