1 

IN THE UNITED STATES WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

(1) ROBERT BRADEN, (2) REBECCA 

METCALF (BRADEN), (3) BRENDA 

MOULTON, 

Plaintiffs 

v. 

UNITED STATES OF AMERICA, 

Defendant 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

CIVIL ACTION NO: 

5:20-CV-109 

PLAINTIFFS’ ORIGINAL COMPLAINT 

This case arises out of negligence by the United States of America and its 

agencies causing the massacre at Sutherland Springs First Baptist Church on 

November 5, 2017. Plaintiffs bring this Complaint under the Federal Tort Claims 

Act, 28 U.S.C. § 2674 against the United States of America and would respectfully 

show the following. 

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TABLE OF CONTENTS 

I. PARTIES .............................................................................................................. 4

II. BACKGROUND ................................................................................................... 4

A. Congress passed key legislation to prevent shootings 

like the Sutherland Springs shooting.......................................................... 4

B. Congress, the Department of Defense, and the Air Force 

voluntarily undertook a non-delegable duty to report 

convictions for domestic violence, incarceration for a 

crime punishable by more than one year, and mental 

institution commitment. ................................................................................. 8

C. The Department of Defense and Air Force knew that it 

was not reliably collecting and reporting fingerprints 

and final disposition information to the FBI. .......................................... 11

III. DEVIN KELLEY ................................................................................................ 13

A. The Air Force knew Devin Kelley’s violent history. .............................. 13

B. The Air Force commits Devin Kelley to a mental health 

facility. .............................................................................................................. 21

C. The Air Force charges and convicts Devin Kelley of 

domestic violence, resulting in his incarceration for a 

crime punishable by more than one year. ................................................ 23

D. Kelley commits a mass shooting at the Sutherland 

Springs First Baptist Church on November 5, 2017. .............................. 28

IV. AIR FORCE’S COMISSIONS & OMISSIONS .............................................. 30

A. The Air Force missed multiple opportunities to provide 

Devin Kelley’s fingerprint cards and final disposition 

reports to the FBI ........................................................................................... 30

B. Systematic failures in operations, organization, hiring, 

training, and supervision caused the Air Force’s failure 

to collect, maintain, and submit Devin Kelley’s 

fingerprint cards and final disposition reports to the 

FBI. .................................................................................................................... 34

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V. CAUSES OF ACTION ....................................................................................... 38

A. Negligence ........................................................................................................ 38

B. Negligent Failure to Train & Supervise .................................................... 41

C. Negligent Undertaking ................................................................................. 42

D. Negligence Per Se ........................................................................................... 44

VI. CAUSATION ...................................................................................................... 45

A. The Department of Defense and Air Force’s negligence 

caused injuries to the Plaintiffs. ................................................................. 45

B. Had the Air Force reported Kelley’s history, the FBI’s 

Instant Criminal Background Check System would have 

blocked Devin Kelley’s firearm purchase. ................................................ 47

VII. DAMAGES ....................................................................................................... 48

VIII. JURISDICTION, VENUE, & SERVICE ...................................................... 49

IX. LIABILITY OF THE UNITED STATES ...................................................... 50

X. JURISDICTIONAL ALLEGATIONS ........................................................... 51

XI. CONCLUSION ................................................................................................ 52

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I. PARTIES 

1.1 Defendant is the United States of America. 

1.2 Plaintiff Robert Braden resides in Sutherland Springs, Texas. 

1.3 Plaintiff Rebecca Metcalf resides in Adkins, Texas. 

1.4 Plaintiff Brenda Moulton resides in Stockdale, Texas. 

II.BACKGROUND 

A. Congress passed key legislation to prevent shootings like the 

Sutherland Springs shooting. 

2.1 Through several pieces of legislation spanning almost 30 years, Congress 

acted to block individuals who present a known risk of violence from purchasing 

firearms. To that end, Congress mandated that certain individuals must be flagged 

in an instant criminal background check system used by firearms sellers nationwide 

in the interest of public safety. The Air Force and Department of Defense ignored 

three statutory mandates that required Devin Kelley’s entry into the background 

check system: his domestic violence conviction, his conviction for a crime punishable 

by imprisonment for over a year, and his commitment to a mental institution. As a 

direct result of the Air Force and Department of Defense’s failure to flag Kelley in the 

FBI database, his domestic violence escalated into a murderous shooting rampage 

targeting his ex-wife’s family and neighbors at the Sutherland Springs First Baptist 

Church on November 5, 2017. 

2.2 Federal law makes it unlawful to sell a firearm to a person whom the seller 

knows or has reasonable cause to believe is someone who (a) has been convicted of a 

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misdemeanor crime of domestic violence; (b) has been convicted of a crime punishable 

by imprisonment for longer than a year; or (c) has been committed to any mental 

institution. 18 U.S.C. § 922(d)(1), (4), (9). These categories of individuals are 

forbidden from possessing firearms. Id. § 922(g). 

2.3 Congress attempted to quell the dangers presented by mass shooters like 

Devin Kelley before he was even born. Initially passed as the Gun Control Act of 1968, 

the law banned the sale of firearms to those individuals with criminal histories and 

those individuals who have been committed to mental institutions. 

2.4 In 1993, Section 103 of the Brady Handgun Violence Prevention Act 

required the Attorney General of the United States to establish an instant criminal 

background check system that a firearm seller must use to determine whether the 

sale of the firearm violates 18 U.S.C. § 922. Under 18 U.S.C. § 922(t), a licensed dealer 

of firearms shall not sell or transfer to any person without first contacting the 

national instant criminal background check system. 

2.5 Congress passed the Brady Bill to prevent shootings just like the 

Sutherland Springs shooting. When the Brady Bill was introduced in the House, one 

of the Bill’s sponsors explained that express purpose: 

Mr. Speaker, I rise to strongly support today’s introduction 

of the Brady bill. Five years ago, a man named Larry Dale 

walked into Mercer’s Discount Foods in Tulsa, OK, and 

opened fire on an unsuspecting crowd of shoppers. Dale’s 

rampage killed one person and severely wounded another. 

Many Oklahomans were outraged to learn that Dale, a 

convicted felon with a history of mental illness, had walked 

into a gun store the day before his crime, filled out a single 

form, and walked out with his instrument of death. The 

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tragedy is that 5 years after Larry Dale proved how flawed 

the system is, the Brady Bill is not the law of the land.1

2.6 When the Brady Bill went to committee, the Chairman’s opening statement 

in the House Subcommittee hearings noted that the Brady Bill would effectively 

prevent barred individuals from purchasing firearms: 

We are meeting today to consider a bill whose time has 

come-the Brady Handgun Violence Prevention Act . . . . 

There is nothing complicated about this bill. . . . It will save 

lives. The Brady bill will save lives that are being wasted 

in an epidemic of handgun violence from Brooklyn to 

Florida and all across America. And that is not theory, that 

is fact. 

After Brady passes, a convicted felon will no longer be able 

to walk into a gun store, as thousands have done this year, 

and walk out 10 minutes later with a murder weapon. 

State after State has shown that waiting periods and 

background checks work.2

2.7 The committee issued the House Committee Report. Under the heading 

“Summary and Purpose,” the committee reported: 

The purpose of H.R. 1025 is to prevent convicted felons and 

other persons who are barred by law from purchasing guns 

from licensed gun dealers, manufacturers or importers. 

The House report underscored that background checks are necessary to prevent 

violent offenders from gaining access to firearms: 

1 Congressional Record, House, at H731 (Feb. 22, 1993). 

2 Brady Handgun Violence Protection Act, hearing before the Subcommittee on Crime and 

Criminal Justice of the House Judiciary Committee (Sept. 30, 1993). 

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The experiences of States which require background checks 

before firearm sales also indicate that many repeat 

offender criminals buy guns directly from firearms dealers. 

For example, in California, a background check intercepted 

2,500 felons attempting to buy guns from dealers last year. 

. . . . Each year in Illinois some 3,000 prohibited persons 

seek to purchase firearms and are denied. 3

2.8 In 1996, the Domestic Violence Offender Gun Ban, also referred to as the 

“Lautenberg Amendment,” made it unlawful to sell firearms to anyone convicted of a 

misdemeanor crime of domestic violence. Congress enacted the Domestic Violence 

Offender Gun Ban to “close [a] dangerous loophole” in the gun control laws: while 

felons had long been barred from possessing guns, many perpetrators of domestic 

violence are convicted only of misdemeanors.4

2.9 In abusive relationships, the severity of domestic violence often increases 

over time, and the presence of a firearm increases the likelihood of homicide. 5

Congress recognized that “[f]irearms and domestic strife are a potentially deadly 

combination.”6 As one Senator noted during the debate over § 922(g)(9), “[A]ll too 

often, the only difference between a battered woman and a dead woman is the 

presence of a gun.” 142 Cong. Rec. 22986 (1996) (statement of Sen. Wellstone). 

3 H. Rep. No. 103-344, Brady Handgun Violence Prevention Act (Nov. 10, 1993). 

4 United States v. Castleman, 134 S. Ct. 1405, 1408–09 (2014) (citing United States v. 

Hayes, 555 U.S. 415, 426 (2009)). 

5 See id., at 14–15; see also Campbell et al., Assessing Risk Factors for Intimate Partner 

Homicide, DOJ, Nat. Institute of Justice J., No. 250, p. 16 (Nov. 2003) (“When a gun was 

in the house, an abused woman was 6 times more likely than other abused women to be 

killed”). 

6 See Voisine v. United States, 136 S. Ct. 2272 (2016) (citing Hayes, 555 U.S. at 427). 

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B. Congress, the Department of Defense, and the Air Force voluntarily 

undertook a non-delegable duty to report convictions for domestic 

violence, incarceration for a crime punishable by more than one 

year, and mental institution commitment. 

2.10 Federal law requires Government agencies to report ineligible firearm 

purchasers to a national database. Specifically, 34 U.S.C. § 40901(e)(1)(C) states that 

federal agencies that have “any record of any person demonstrating” that the person 

should not be able to purchase a gun “shall, not less frequently than quarterly, 

provide the pertinent information contained in such record to” the Attorney General 

for the national instant criminal background check system. Section 40901(e)(1)(D) 

creates an obligation on agencies to correct and update these records. 

2.11 Title 10, U.S.C. section 1562 requires that the Department of Defense 

establish a central database of information on the incidents of domestic violence 

involving members of the armed forces. This section also requires that all military 

departments, including the Air Force, report domestic violence incidents. 

2.12 It is Department of Defense policy that all Department agencies, including 

the Air Force, comply with the (a) crime reporting requirements of the Uniform 

Federal Crime Reporting Act of 1988; (b) reporting requirements for victim and 

witness assistance notifications of the Victim's Rights and Restitution Act of 1990, 

and (c) reporting requirements of the Brady Handgun Violence Prevention Act. 

2.13 To implement these federal laws, the Department of Justice established the 

National Instant Criminal Background Check System (NICS). Congress, through the 

Brady Act, established the NICS Indices, which contains information provided by 

federal agencies of persons prohibited from receiving firearms under federal law. The 

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NICS responds instantly to background check inquiries by querying the NICS 

Indices, the National Crime Information Center, and the Interstate Identification 

Index. The Interstate Identification Index contains biometric criminal history based 

on fingerprint submission. 

2.14 The Department of Defense issued policies that required submission of 

fingerprint cards and final disposition reports to the FBI for inclusion in the NICS 

database. The Department of Defense and U.S. Air Force promulgated these policies 

through Department of Defense Instruction 5505.11, “Fingerprint Card and Final 

Disposition Report Submission Requirements.” Instruction 5505.11 requires the 

collection fingerprints and the submission criminal history to the FBI. Under this 

instruction, U.S. Air Force law enforcement agents are to collect and submit 

fingerprint cards when they have probable cause to believe that a person committed 

a violation of a crime that would make the ineligible to obtain a firearm. In addition, 

final disposition reports must be submitted to the FBI upon final disposition of the 

offense. 

2.15 Department of Defense Manual 7730.47-M Volume 1, Enclosure 3, 

prescribes the reporting data elements needed to comply with Federal criminal 

incident reporting pursuant to federal law. Enclosure 3 states the Defense IncidentBased Reporting System: 

shall be used to centralize the collection of information that 

is reportable by the DoD Components pursuant to The 

Brady Handgun Violence Prevention Act of 1993, which 

requires the Department of Defense to report these eight 

categories to the FBI for purposes of prohibiting firearm 

purchases: 

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(1) Persons who have been convicted in any court of a crime 

punishable by imprisonment for a term exceeding 1 year. 

... 

(4) Persons who have been adjudicated as mental 

defectives or who have been committed to a mental 

institution. ... 

(7) Persons convicted in any court of a misdemeanor crime 

of domestic violence. 

2.16 The Air Force issued Instruction 31-206 and 31-118. Air Force policies 

required that Air Force Security Forces units obtain complete sets of fingerprints on 

fingerprint cards. Air Force Instructions require the submission of these fingerprint 

cards and final disposition reports to the FBI. Air Force Instruction 31-205 requires 

fingerprinting of all post-trial inmates during the in-processing into a confinement 

facility. The Instruction also required that Air Force train its staff in in-processing 

matters, including collecting and submitting fingerprint cards and final disposition 

reports to the FBI. 

2.17 The Air Force also has instructions, handbooks, and manuals that provide 

policy, guidance, and procedures for collecting and reporting criminal history data to 

the FBI, consistent with Department of Defense policies. 

2.18 Air Force Office of Special Investigations Handbook 71-105 (“An Agent’s 

Guide to Conducting and Documenting Investigations,” March 9, 2009) obliges Air 

Force agents or employees to collect a subject’s fingerprints (or the electronic 

equivalent) after a subject interview. The Handbook requires Detachment leadership 

to review the fingerprint cards and final disposition reports for accuracy, verify the 

fingerprints were acceptable, and document their review. 

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2.19 Air Force Office of Special Investigations Manual 71-118, Volume 4, 

(“General Investigative Methods,” April 5, 2012) requires the collection of 

fingerprints from all subjects of Special Investigations after the subject interview if 

investigating the subject for violation of certain offenses, including crimes of domestic 

violence. It refers Air Force agents to Department of Defense Instruction 5505.11 for 

the criteria of collecting and submitting fingerprints to the FBI. 

2.20 Air Force Office of Special Investigations Manual 71-121 (“Processing and 

Reporting Investigative Matters,” October 12, 2012) requires Air Force agents to 

submit a subject’s fingerprints to the FBI if they have probable cause to believe the 

subject of their investigation committed certain offenses, including offenses involving 

domestic violence. This manual also requires agents to submit completed final 

disposition reports on military members to the FBI within fifteen (15) days of 

sentencing. Duplicates of these reports must be maintained in the Air Force 

investigative case files. This manual further requires Detachment leadership to 

review—for sufficiency—investigative files monthly from the date of the allegation 

until the case is closed. 

C. The Department of Defense and Air Force knew that it was not 

reliably collecting and reporting fingerprints and final disposition 

information to the FBI. 

2.21 The Department of Defense Inspector General conducted several 

investigations that found failures in the submission of required fingerprints and final 

disposition reports to the FBI throughout the Department. 

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2.22 In 1997, the Inspector General found a high level of noncompliance by 

Department of Defense and its agencies. For example, the Air Force failed to submit 

fingerprint cards in 38% of its criminal cases and failed to submit final disposition 

reports in half of its criminal cases. The Inspector General recommended that the 

Military Departments and Defense agencies develop polices and implement 

procedures to correct these failures and prevent such failures from occurring in the 

future. The United States Air Force agreed with the recommendation. 

2.23 In 2013, an Inspector General investigation revealed that Defense 

Departments failed to collect or failed to report 20% of fingerprints in sexual assault 

cases. (Report No. DoDIG-2013-091, “Evaluation of Military Criminal Investigative 

Organizations’ Sexual Assault Investigations,” July 9, 2013.) Similarly, in 2014, an 

Inspector General investigation revealed that Defense Departments failed to collect 

or submit fingerprints to the FBI in sexual assaults of children. Also in 2014, the 

Inspector General found Defense Departments failed to collect and submit 

fingerprints in child death investigations. In 2015 and 2017, the Inspector General 

found that Defense Departments failed to collect or submit fingerprints in 

investigations of sexual assault. 

2.24 In 2015, the Inspector General issued another report (Report No. DoDIG2015-081, “Evaluation of Department of Defense Compliance with Criminal History 

Data Reporting Requirements”). Plaintiffs incorporate this report into their 

complaint by reference. In this report, the Inspector General found that the Military 

Services failed to consistently submit fingerprint cards and final disposition reports 

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as required. For example, the Air Force failed to submit 31% of required fingerprint 

cards and 32% of final disposition reports. The Inspector General recommended that 

Air Force take prompt action to submit missing fingerprint and final disposition 

reports to the FBI. The Inspector General also recommended that Air Force take 

prompt action to ensure submission of fingerprint cards from future criminal 

investigations and future final dispositions reports. The Air Force agreed with these 

recommendations. 

2.25 A 2017 review conducted by the Inspector General (Report No. DODIG2018-035, “Evaluation of Fingerprint Card and Final Disposition Report Submissions 

by Military Service Law Enforcement Organizations,” December 5, 2017). Plaintiffs 

incorporate this report into their complaint by reference. In this report, the Inspector 

General again determined that the Military Services failed to submit fingerprint 

cards and final disposition reports as required. 

III. DEVIN KELLEY 

A. The Air Force knew Devin Kelley’s violent history. 

3.1 Devin Kelley entered the Air Force Delayed Enlistment Program on June 

12, 2009. While enlisting, Kelley lied to the Air Force about using and possessing 

marijuana. On January 5, 2010, he recertified his lies about marijuana use and 

possession when he entered active military service. On March 5, 2010, Kelley 

graduated from basic military training. 

3.2 On April 14, 2010, the Air Force began training Kelley as a Network 

Intelligence Analyst, but Kelley had academic issues. Kelley’s military training 

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leaders recommended Kelley for elimination from the course because he did not meet 

academic standards. The report also indicated that Kelley had several minor 

disciplinary infractions. 

3.3 On December 16, 2010, the Air Force reassigned Kelley to a traffic 

management career field. On January 11, 2011, the Air Force permanently changed 

Kelley’s station to Holloman Air Force Base (“Holloman”). Kelley arrived at Holloman 

in late April 2011. Between June 19, 2011, and March 20, 2012, he accumulated four 

Memorandums for Record, four Letters of Counseling, and five Letters of Reprimand. 

Kelley’s conduct included failure to obey direct orders, creating a hostile work 

environment, making false statements, and insubordination of a superior officer. This 

included a letter of reprimand for lying to his supervisor and for failing to report to 

his duty station after being ordered to do so. In other letters, Kelley was warned that 

his conduct was a criminal act. In at least three of these letters, the Air Force told 

Kelley that he had proven that he could not be depended upon. In at least two of these 

letters, the Air Force noted that Kelley could not always be trusted and had 

demonstrated a disregard for the Air Force’s core values. The Air Force warned Kelley 

that future misconduct would lead to more severe punishment. 

3.4 In February 2011, Kelley began dating Tessa K. Kelley (neé Loge). Tessa 

Kelley had a child from a previous marriage. On April 12, 2011, Devin Kelley and 

Tessa Kelley married. 

3.5 On June 2, 2011, Tessa Kelley took her child to William Beaumont Army 

Medical Center (a facility owned and operated by an agency of the United States). A 

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nursing note indicated concern for child abuse or neglect. While questioning Tessa 

Kelley about her son’s injuries, Tessa Kelley stated that Devin Kelley had kicked her. 

3.6 On June 8, 2011, Devin and Tessa Kelley took the child to an ER 

complaining of vomiting and falling. The physicians noticed the child had bruising on 

the child’s left cheek that “appeared to be fresh and a little purple.” A CT scan 

revealed a fractured clavicle and subdural hemorrhage (bleeding on the brain). After 

the fact, Devin Kelley admitted to the United States Air Force that he caused these 

injuries without excuse or justification. Devin Kelley produced a video confessing to 

his wrongful conduct. Physicians notified the Children, Youth and Families 

Department in New Mexico, who, in turn, notified the Air Force Office of Special 

Investigations Detachment 225 at Holloman of the possible child abuse. 

3.7 On June 9, 2011, Air Force Special Investigations opened an investigation 

for assault on a child, listing Devin Kelley as the subject. They interviewed Kelley 

that day. Kelley denied striking his stepson and denied having any knowledge of 

Tessa Kelley striking the son. Kelley stated that he and Tessa Kelley were the only 

ones with direct access to his stepson. Kelley claimed he did not know how his stepson 

received the injury to his head. Kelley suggested that his stepson received the injury 

from falling on the floor while crawling or playing in his crib. At the end of the 

interview, agents collected Kelley’s fingerprints and released him to his unit 

representatives. Air Force agents collected Kelley’s fingerprints because they 

believed probable cause existed that Kelley committed the assault on his stepson. 

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However, Air Force agents did not send Kelley’s fingerprint cards to the FBI, as 

required by policy. 

3.8 On June 24, 2011, Kelley’s stepson was placed in foster care because of 

unexplained injuries and the suspicions of child abuse. Also on that day, Tessa Kelley 

reported that Kelley had physically assaulted her by grabbing her around the throat, 

choking her, and throwing her against a wall. This report was provided to Air Force 

Reserve leadership and to the 49th Security Forces Squadron at Holloman Air Force 

Base. The Air Force report of the incident stated that the investigation “determined 

no crime had been committed and there was no evidence of any injuries to either 

party.” 

3.9 On September 7, 2011, Kelley voluntarily went to the Holloman Mental 

Health Clinic as a walk-in patient and stated that he was unable to cope with the 

stress he was under at work. He stated that Child Protective Services was removing 

his stepson from the house due to an allegation of abuse caused his stress. Kelley also 

stated that his supervisor was constantly “yelling at work.” A staff psychologist wrote 

in Kelley’s mental health record that treatment would concentrate on his 

“anxiety/attention/occupational; continue to develop relational and mood 

management coping skills.” The psychologist also wrote that Kelley would be seen 

weekly. Between September 7, 2011, and February 22, 2012, Kelley was treated 17 

times at the Holloman Mental Health Clinic. During this time, Kelley was prescribed 

Atomoxetine, Ibuprofen, Albuterol, Fluticasone, and Omeprazole. 

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3.10 In a report on Kelley’s October 11, 2011, visit, a psychologist wrote that 

Kelley had difficulty interacting with authority figures and that he perceived that 

they were criticizing him. On January 10, 2012, the psychologist examined Kelley 

again and reported that Kelley was “able to attend to and focus on pertinent material 

at home and work.” The psychologist also wrote that Kelley was able to “control and 

direct his energy appropriately” and that there were “no significant changes in [his] 

symptoms.” 

3.11 On February 17, 2012, Tessa Kelley called the 49th Security Forces 

Squadron to report that Kelley had abused her after fleeing to El Paso, Texas. Tessa 

Kelley told Air Force 49th Logistics Readiness Squadron First Sergeant that Kelley’s 

actions caused her to fear for her life. In response, the First Sergeant told her that 

the Squadron Commander would issue Kelley a no contact order. Tessa Kelley told 

the Squadron investigators that the reason she left Kelley was to get away from him 

“and the abuse,” that Kelley had been physically abusing her since July 2011 and 

that Kelley had choked her on multiple occasions. She stated that in one instance on 

December 24, 2011, Kelley pushed her against a wall and choked her because she had 

told him that she did not want to visit his family and stated, “You better pack your 

bags or I’ll choke you to the ceiling and pass you out.” Tessa Kelley also said that on 

another occasion, she and Kelley argued over her wanting to go for a walk at night. 

This argument resulted in Kelley choking her, kicking her in the stomach, and then 

dragging her by her hair into the bathroom. She said that Kelley told her “I’m going 

to water-board you” and stuck her head directly under the showerhead. Tessa Kelley 

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also told the investigators that Kelley emotionally and physically abused her 

throughout their marriage. Tessa Kelley provided other examples of abuse, stating 

that Kelley would threaten to choke her if she did not do as he said, and would slap 

her, kick her, pull her hair, drag her through t heir house, and control her. She stated 

that Kelley told her if she “said anything to anybody he would bury her in the desert 

somewhere.” Tessa Kelley stated that the reason she had not reported the abuse 

sooner was due to fear for both her life and the life of her son. 

3.12 On February 12, 2012, Air Force investigators tried to interview Devin 

Kelley as a subject of their investigation into crimes of domestic violence. Kelley 

requested legal counsel and did not make a statement. The 49th Security Forces 

Squadron did not collect his fingerprints. Department of Defense and Air Force 

policies required the collection and submission of fingerprint cards to the FBI. 

3.13 On February 21, 2012, Devin Kelley voluntarily went to the Holloman 

Mental Health Clinic as a walk-in patient. He told the staff psychologist that he was 

upset because his wife left him and because he believed that she told the 49th 

Security Forces Squadron that he assaulted her. On February 22, 2012, Kelley 

returned to the Clinic because he was still upset that his wife left him. A licensed 

clinical social worker stated that Kelley told her “he would like to go to the psychiatric 

hospital for help because he did not believe he could help himself on an outpatient 

status.” 

3.14 On February 23, 2012, Kelley voluntarily entered in-patient care at the 

Peak Behavioral Health Services (“Peak”), where he remained until March 8, 2012. 

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Peak is a mental health institution. During Kelley’s intake evaluation, staff 

diagnosed him as having “an adjustment disorder with depressed mood.” The staff 

wrote, “The patient reported feeling suicidal with a plan to shoot himself with a gun 

after his wife informed him that she was filing assault charges for an altercation that 

occurred three weeks prior to admission.” Kelley told the Peak personnel that he had 

frequent mood swings. Kelley also reported that he had severe anxiety. Kelley told a 

clinical nurse specialist that he was diagnosed with Attention Deficit Hyperactivity 

Disorder while he was in the fourth grade. He also told the staff that the Holloman 

Mental Health Clinic had counseled him to help him cope with his Child Protective 

Services case, his marital problems, and his alleged emotional abuse from a female 

supervisor at work. During Kelley’s in-patient treatment, he was prescribed Strattera 

for Attention Deficit Hyperactivity Disorder, Wellbutrin for depression, Clonazepam 

for anxiety, and Ambien for insomnia. 

3.15 On March 8, 2012, the Peak discharged Kelley and told him to follow up 

with the Holloman Mental Health Clinic. Between March 14, 2012, and April 26, 

2012, Kelley was seen at the Clinic seven times. The Clinic had access to Kelley’s 

records at Peak. The last visit to the Clinic was April 26, 2012, during which Kelley 

told Clinic personnel that he was experiencing more difficulty than ever before 

because the final hearing for the adoption of his stepson was one hearing away from 

resolution. 

3.16 In approximately mid-March 2012, while at their residence, Tessa Kelley 

watched as Kelley put one bullet in a .38 Special revolver. Kelley then pointed the 

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gun at his own head and pulled the trigger three times. Kelley then pointed the gun 

at Tessa Kelley and threatened her. On approximately April 23, 2012, while Tessa 

Kelley and Kelley were driving to El Paso, Tessa Kelley asked Kelley to slow down. 

Devin Kelley cursed at her and told her “don’t tell me how to drive.” The police later 

pulled Kelley over and cited him for speeding. After receiving the ticket and 

continuing to drive, Kelley blamed the ticket on Tessa Kelley and pulled the car over 

again. Devin Kelley then pulled out a gun and placed the muzzle of the weapon 

against her temple, stating, “Do you want to die?” Tessa Kelley pushed the gun away 

and began to cry. Kelley then put the gun in his mouth and asked her why she wanted 

to be with him. Kelley then told her that he had slapped her son on June 8, 2011, the 

day her son was taken to the hospital. Kelley additionally stated that he had struck 

his stepson on multiple occasions, the first time being in March 2011, in New 

Braunfels. The Air Force became aware of these facts through Tessa Kelley in an 

interview the Office of Special Investigations conducted on May 3, 2012. 

3.17 On April 27, 2012, Tessa Kelley convinced Devin Kelley to make a full video 

confession. In the video, he admitted to hitting her son multiple times in frustration. 

Kelley stated that this frustration would lead him to push, strike, and slap his 

stepson. Kelley also acknowledged that he caused the bruising on his stepson’s face 

on June 8, 2011. Kelley further admitted that he caused his stepson’s skull injury. He 

stated that he had pushed his stepson down multiple times and shook him on at least 

two occasions. After completing the video, he gave it to Tessa Kelley. On April 29, 

2012, Tessa Kelley provided the recording of Kelley’s confession to his First Sergeant. 

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The First Sergeant provided the recording to Air Force Office of Special 

Investigations. 

B. The Air Force commits Devin Kelley to a mental health facility. 

3.18 On April 29, 2012, Kelley’s chain-of-command arranged to have him 

admitted back into the Peak Behavioral Health Services. On April 30, 2012, Kelley 

entered Peak a second time. Kelley stated that he was going to shoot himself and 

Peak staff put a high-risk notification alert on his chart due to his homicidal and 

suicidal indicator. 

3.19 On May 3, 2012, Air Force agents re-interviewed Tessa Kelley. She stated 

that she thought Kelley might have hurt her son, but she had not seen him do 

anything to hurt her son. She stated that she began suspecting him of “injuring” her 

son when Kelley started physically, verbally, and mentally abusing her. Tessa Kelley 

stated that Kelley had struck, kicked, choked, and pulled her hair out on multiple 

occasions. She stated that Kelley threatened to kill her if she ever reported the abuse 

to police, or any other party. Additionally, Kelley had stated to her, “If the cops show 

up at my door, I will shoot them.” She also said that he had told her, “My work is so 

lucky I do not have a shotgun because I would go in there and shoot everyone.” Tessa 

Kelley said that on one occasion while driving, Kelley struck her in the stomach in 

front of two friends, threatening to beat her if she continued speaking. In a separate 

interview of other witnesses, Air Force investigators discovered that other individuals 

had witnessed Kelley verbally abuse Tessa Kelley on multiple occasions. In an 

interview of Tessa Kelley’s childhood friend, he stated that Tessa Kelley told him 

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about “all of the times” Kelley abused her. Tessa Kelley included the details of how 

Kelley would “hit her in the stomach and pull her hair out” and how he attempted to 

“water board” her. Tessa Kelley told her childhood friend that water boarding 

consisted of Kelley pushing her head under the shower faucet and turning on the 

water. 

3.20 On June 6, 2012, a Peak staff member discovered Kelley’s interest in guns. 

His medical records note that Kelley’s insight and judgment are so impaired that 

Kelley does not understand “how that does not look good on him.” 

3.21 While receiving inpatient care at Peak, Mr. Kelley made several threats 

that if he were picked up by Security Forces, he would go for their guns. While at 

Peak, Devin Kelley tried to obtain firearms and conducted research into body armor. 

Mr. Kelley was trying to carry out threats he made against his chain of command. He 

made these plans to purchase another firearm because his other weapons had been 

confiscated by the Air Force, its agents, or contractors. 

3.22 On June 7, 2012, Kelley left the Peak facility without permission from the 

staff and without notifying anyone. On June 8, 2012, a Peak Director located Kelley 

at a Greyhound bus station in El Paso. A Greyhound security officer and an El Paso 

police officer handcuffed him, and police officers from the Sunland Police Department 

transported him back to Peak. Kelley did not voluntarily return to Peak but was 

involuntarily re-committed to Peak. On the same day, Kelley’s Commander prepared 

a pretrial confinement package. The package included a memorandum stating that 

Kelley’s Commander was “convinced” that Kelley was “dangerous and likely to harm 

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someone if released.” Kelley’s Commander also cited Kelley’s Internet search for body 

armor and firearms as further justification for the pretrial confinement. The 

Commander concluded that Kelley was a flight risk and ordered him into pretrial 

confinement. 

3.23 So, the 49th Security Forces Squadron detained Kelley at Peak and 

transported him to the 49th Security Forces Squadron Confinement Facility. Because 

Kelley was ordered into pretrial confinement, Air Force policy required the 

confinement facility personnel to fingerprint Kelley during the in-processing into the 

confinement facility and to submit those records to the FBI after sentencing. Air 

Force agents or employees did not take Kelley’s fingerprints at this time. If 

fingerprints were taken, Air Force agents or employees did not retain those 

fingerprints as required by policy. Further, if fingerprints were taken, Air Force 

agents or employees did not submit fingerprints to the FBI after his sentencing, as 

required. 

C. The Air Force charges and convicts Devin Kelley of domestic 

violence, resulting in his incarceration for a crime punishable by 

more than one year. 

3.24 On June 8, 2012, Air Force investigators interviewed Kelley about Tessa 

Kelley’s assault allegations and his Absent without Leave status when he left Peak. 

Kelley told them that “something tragic had happened and he wanted to kill himself.” 

Kelley also told the agents that he “escaped” from Peak because he was planning to 

go to New Braunfels, to plan his suicide. Kelley told agents that he made a confession 

video “on his own free will.” Because Air Force Detachment 225 Special Agents were 

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in possession of Kelley’s confession, conducted a subject interview, and Kelley was 

ordered into pretrial confinement, Department of Defense policy required the Special 

Agents to collect and submit Kelley’s fingerprints to the FBI. Kelley’s Commander 

ordered Kelley into pretrial confinement on June 8, 2012, stating that he had 

“reasonable grounds to believe” Kelley assaulted Tessa and her son. In a 

memorandum dated June 10, 2012, the Pretrial Confinement Review Officer found 

that “adequate probable cause” existed to believe Kelley had assaulted Tessa and her 

son. Yet, Air Force failed to collect or submit Kelley’s fingerprints. 

3.25 A Pretrial Confinement Memorandum, dated June 8, 2012, concluded that 

Kelley had violated the Uniform Code of Military Justice: Article 86, Date of Offense, 

June 7, 2012, Description of Offense, Absence without leave; Article 128, Date of 

Offense June 9, 2011, Description of Offense, Assault on a Child; Article 134, Date of 

Offense, April 23, 2012, Description of Offense, Communication of a Threat; and 

Article 134, Date of Offense, April 23, 2012, Description of Offense, Assault. 

3.26 On July 10, 2012, the Air Force determined that Devin Kelley should be 

confined while awaiting trial because “it is foreseeable that [Kelley] will not appear 

for trial and/or will engage in serious criminal misconduct.” As a basis for this 

conclusion, the Air Force noted: 

The Evidence shows a serious escalation of behavior 

involving firearms and threats after the physical abuse of 

a child. Particularly alarming is his decision to try to obtain 

another firearm while undergoing inpatient mental health 

care, conducting research on body armor, and then 

escaping from the facility late at night without 

authorization . . . . 

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Lesser forms of restraint are inadequate to mitigate the 

flight risk he poses nor would they prevent him from 

carrying out the threats that he has made against others, 

especially given the forethought and planning that he 

showed by attempting to purchase another firearm and his 

escape from the mental health facility. 

3.27 On July 26, 2012, the Air Force charged Kelley with suspected violations of 

Article 128 (Assault), against Tessa Kelley and her son. This is a charge of a crime of 

domestic violence. On August 2, 2012, an Article 32 hearing was conducted. An 

Article 32 hearing is a preliminary hearing that determines whether there is probable 

cause to believe an offense has been committed and the accused committed the 

offense; determines if the convening authority has court-martial jurisdiction; 

considers the form of charges; and recommends the disposition of the case. The 

hearing presented evidence that Kelley had abused Tessa Kelley from June 2011 

through April 2012. The medical evidence presented during the hearing indicated her 

son suffered severe injuries inflicted by Kelley. The Article 32 Investigating Officer 

found reasonable grounds existed to believe that Kelley committed the offenses 

alleged. 

3.28 On August 15, 2012, Kelley was also charged with a suspected violation of 

Article 128 (Assault) for threatening Tessa Kelley with a firearm. This a crime of 

domestic violence and a crime punishable by imprisonment for a term exceeding one 

year. 

3.29 On August 27, 2012, charges were referred to court-martial. Kelley 

remained in confinement until the court-martial trial on November 6, 2012. 

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3.30 On November 3, 2012, trial counsel offered, and the Staff Judge Advocate 

presented, Kelley and his defense counsel with an Offer for Pretrial Agreement. The 

agreement specified that, in return for Kelley’s plea of guilty to the charges of assault 

against his wife and stepson, the firearm charge would be dismissed, and his 

confinement would not exceed 3 years. On November 4, 2012, Kelley and his defense 

counsel agreed to the terms of this agreement. 

3.31 On November 6, 2012, in accordance with the pretrial agreement, Kelley 

pleaded guilty in the General Court-Martial proceedings to assault on his wife and 

stepson. On November 7, 2012, the Court-Martial panel sentenced Kelley to a 

reduction in rank to Airman Basic, confinement for 12 months, and a Bad Conduct 

Discharge. The plea of guilty to assault on his wife and stepson was a crime of 

domestic violence and a crime punishable by imprisonment for a term exceeding one 

year. In fact, Kelley’s maximum sentence for the assaults on his wife and stepson 

included potential confinement for 5 years and 6 months. 

3.32 The Air Force General Court Martial Order No. 10 specifically noted at the 

top of the order that this was a “Crime of Domestic Violence. 18 U.S.C. § 922(g)(9).” 

The citation to section 922(g)(9) references the federal law that prevents individuals 

convicted of even a misdemeanor crime of domestic violence from possessing a 

firearm. 

3.33 On November 7, 2012, after his conviction, Kelley returned to the 

Confinement Facility at Holloman. Because his conviction changed his status from 

pretrial confinement detainee to post trial inmate, Air Force Corrections System 

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policy required the confinement facility personnel to collect and submit Kelley’s 

fingerprints during his in-processing into the confinement facility. Air Force 

employees did not collect, maintain, or submit Kelley’s fingerprints to the FBI. Air 

Force agents or employees did not submit a final disposition report of Kelley’s 

criminal history to the FBI. Air Force policy requires agents to submitt the final 

disposition report within fifteen days (15) of Kelley’s sentencing. 

3.34 On December 14, 2012, the Air Force Office of Special Investigations 

received a Report and Result of Trial of Devin Kelley. Per policy, the Air Force should 

have reported the final disposition of Devin Kelley’s convictions to the FBI. But it did 

not. Instead, the Air Force Special Agent in Charge certified that Kelley’s fingerprints 

were submitted to the FBI. This permitted the agent to close the investigation file 

when, in fact, the Air Force never collected, maintained, or submitted Devin Kelley’s 

fingerprints or final disposition reports to the FBI. 

3.35 On December 18, 2012, Kelley was transferred to and incarcerated at the 

Naval Consolidated Brig, Miramar, California, until his release on March 31, 2013. 

During his intake evaluation, Naval Consolidated Brig personnel placed Kelley in 

separate sleeping quarters from the general population while conducting medical and 

psychological assessments of him. Because of the evaluation, Kelley was classified as 

a “suicide risk in gown” as well as an “Assault risk – escape risk.” 

3.36 On March 31, 2013, Kelley was released from the Naval Consolidated Brig, 

upon completion of his sentence. Between March 31, 2013, and April 2, 2013, Kelley 

completed Air Force out-processing paperwork and was ordered “not to enter or 

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reenter or be found within the limits of the United States military installation of 

Holloman Air Force Base, New Mexico, for an indefinite period.” 

3.37 On December 3, 2013, the Air Force Court of Criminal Appeals affirmed the 

findings and sentencing in Kelley’s court-martial. On May 9, 2014, after the 

automatic appeals courts upheld Kelley’s conviction and sentence, he was officially 

separated from the Air Force with a Bad Conduct Discharge. 

3.38 On September 30, 2016, Kelley’s former 49th Logistics Readiness Squadron 

supervisor received a threatening message from Kelley on Facebook. The message 

stated, “Hey you stupid b****. You should have been put in the ground a long time 

ago. Better hope I don’t ever see you. You can’t face facts, you fat piece of s***.” 

Kelley’s former supervisor said that she had not attempted to contact Kelley before 

receiving the message, and that it was unexpected. She stated that she saved Kelley’s 

Facebook message as a screenshot and forwarded it to her former Air Force 

supervisor. Kelley’s former supervisor also stated that she had considered reporting 

this incident to law enforcement and obtaining a restraining order against Kelley, 

but decided against it because she felt that he would find out where she lived. 

D. Kelley commits a mass shooting at the Sutherland Springs First 

Baptist Church on November 5, 2017. 

3.39 On December 22, 2014, Kelley purchased a Glock Model 19, a 9-millimeter, 

semi-automatic handgun, from Specialty Sports and Supply, in Colorado Springs, 

Colorado. He completed the ATF Forms 4473 and the store completed the required 

NICS check on the same day. The response provided was that the sale could proceed. 

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3.40 On June 26, 2015, Kelley purchased a Ruger GP100, a .357 Magnum, 

revolver handgun, again from Specialty Sports and Supply in Colorado Springs. He 

completed the ATF Form 4473 and the store completed the required NICS check on 

the same day. The response provided was that the sale could proceed. 

3.41 On April 7, 2016, Kelley purchased a Ruger AR-556, a 5.56-millimeter, 

semi-automatic rifle, from Academy Sports and Outdoors (Store No. 41), in San 

Antonio, Texas. He completed the ATF Form 4473, and the store completed the 

required NICS check on the same day. The response provided was that Academy 

could proceed with the sale. 

3.42 On October 18, 2017, Kelley purchased a Ruger SR22, a .22 caliber, 

semiautomatic handgun, from Academy Sports and Outdoors (Store No. 46), in 

Selma, Texas. He completed the ATF Form 4473 and the store completed the required 

NICS check on the same day. The response provided was that Academy could proceed 

with the sale. 

3.43 On four ATF Forms 4473 that Kelley filled out to purchase the firearms 

after his conviction, he certified that he had never been convicted of any crime for 

which the judge could sentence him for more than 1 year in confinement. One of the 

questions on ATF Form 4473 asks, “Have you ever been convicted in any court of a 

felony, or any other crime, for which the judge could have imprisoned you for more 

than one year, even if you received a shorter sentence including probation.” Kelley 

should have answered “yes” to this question. 

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3.44 On November 5, 2017, Kelley entered the First Baptist Church of 

Sutherland Springs, Sutherland Springs, Texas, and opened fire with three of the 

four firearms he had purchased. He killed 26 people and wounded 22 others. After 

being shot by armed citizens who responded to the shooting, Kelley fled from the 

church in his automobile. Kelley later died from a self-inflicted gunshot wound. 

IV. AIR FORCE’S COMISSIONS & OMISSIONS 

A. The Air Force missed multiple opportunities to provide Devin 

Kelley’s fingerprint cards and final disposition reports to the FBI 

4.1 On June 9, 2011, the Air Force first missed its opportunity to submit 

Kelley’s fingerprint cards to the FBI, when the Office of Special Investigations opened 

an investigation into the assault of Kelley’s stepson. 

4.2 Also on June 9, 2011, an Air Force Special Agent wrote an affidavit to the 

military magistrate to obtain authority to search Kelley’s on-base residence for 

evidence related to Kelley’s alleged assault of his stepson. In the affidavit, the Special 

Agent wrote that he believed probable cause existed to search for evidence of child 

abuse. On June 17, 2011, a second Special Agent wrote a separate affidavit to a 

military magistrate requesting authority to seize certain property from Kelley. In 

that affidavit, the agent represented that he or she believed that probable cause 

existed to seize the property to determine the source of the victim’s injuries. Even 

though Air Force agents believed that probable cause existed, they never submitted 

to the FBI the fingerprint cards collected on the June 9th interview. Additionally, 

their supervisors did not create a note in the investigative case file stating that the 

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fingerprint card had been reviewed, as required by Air Force Office of Special 

Investigation Handbook 71-105. Almost certainly, the supervisors failed to certify the 

review of the cards because they did not review them. 

4.3 The Air Force Special agents who interviewed Kelley on June 9, 2011 knew 

of the Air Force policy requirements to collect and submit fingerprints to the FBI. The 

agents were unable to provide any reason why the Air Force failed to submit Kelley’s 

fingerprints to the FBI. The Department of Defense Inspector General concluded that 

the Special Agents did not follow Department of Defense and Air Force policies 

regarding the submission of fingerprints, and that some agents did not understand 

the policies. The Inspector General also found confusion among the Special Agents as 

to when fingerprints should be submitted to the FBI. The former Special Agent-inCharge and Superintendent believed that fingerprints were normally submitted 

within 2 days of the subject interview. The case agent stated that at the time of the 

Kelley assault investigation, he was not aware that of the requirement for submission 

of the fingerprints to the FBI upon a probable cause determination. 

4.4 The second missed opportunity for the Air Force to submit Kelley’s 

fingerprints to the FBI occurred on February 17, 2012. The 49th Security Forces 

Squadron opened an investigation on Kelley for assaulting Tessa Kelley, after she 

told the 49th Security Forces Squadron investigators that Kelley had been physically 

abusing her since July 2011. At that time, the investigators should have collected 

Kelley’s fingerprints, in accordance with Department of Defense and Air Force policy. 

At the time, the Air Force had probable cause to believe that Kelley committed 

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assault. The Inspector General concluded that Air Force investigators did not have a 

clear understanding of, and did not follow, DoD and USAF policy regarding the 

collection and submission of fingerprints. 

4.5 The third missed opportunity for the Air Force to collect and submit Kelley’s 

fingerprints to FBI occurred on June 8, 2012, when Air Force Office of Special 

Investigations interviewed Kelley immediately after he was placed in pretrial 

confinement. Air Force investigators believed that probable cause existed that Kelley 

assaulted his stepson based on the evidence collected, including Kelley’s confession 

on video. According to records of the interview with Kelley, investigators collected 

Kelley’s fingerprints at the end of the subject interview. The Air Force negligently 

maintained Devin Kelley’s fingerprints because a review of the case file found no 

fingerprint cards within it. Regardless, Air Force agents or employees did not submit 

the fingerprint cards to the FBI. So, while Special Agents initialed the block 

signifying that they collected Kelley’s fingerprints, there is no evidence that they were 

collected and submitted to the FBI. 

4.6 The Inspector General concluded Special Agents did not know or follow 

Department of Defense and Air Force policy, and they did not collect and submit 

Kelley’s fingerprints to the FBI following his second subject interview on June 8, 

2012. The failure to collect or submit the fingerprints occurred, in part, because of the 

Special Agent-in-Charge’s practice not submit the fingerprints to the FBI until after 

the Detachment received the Report of Result of Trial from the Staff Judge Advocate 

or the Commander’s record of discipline. However, none of the Special Agents could 

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provide a sufficient or supportable reason why Kelley’s fingerprints were not collected 

or submitted following his subject interview. 

4.7 The fourth missed opportunity for the Air Force to submit Kelley’s 

fingerprints and the first missed opportunity to submit Kelley’s final disposition 

report to the FBI occurred on November 7, 2012, when the Air Force convicted Kelley 

by General Court-Martial for assault on Tessa Kelley and his stepson. As noted above, 

Air Force Corrections System policy required the confinement facility personnel to 

collect an inmate’s fingerprints and submit the fingerprints with final disposition 

during in-processing into the confinement facility. As required by Air Force 

Instruction 31-205, the 49th Security Forces Squadron Confinement Facility staff 

should have included the final disposition on the fingerprint card they collected when 

they in-processed Kelley into the confinement facility after his court-martial. That 

fingerprint card should have been sent to the FBI with the final disposition report. 

4.8 When the Air Force processed Kelley for post-trial confinement, the Air 

Force confinement staff failed to collect Kelley’s fingerprints. The Confinement 

Facility personnel did not follow Department of Defense and Air Force policy for 

collecting and submitting fingerprints and final disposition reports to the FBI. 

Personnel also did not know and were not trained that once fingerprints were 

collected, they should be submitted to the FBI. So, even if they had collected Devin 

Kelley’s fingerprints and final disposition data, more likely than not, the personnel 

would not have submitted them to the FBI as a proximate result of the lack of training 

and supervision. 

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4.9 The second missed opportunity for the Air Force to submit Kelley’s final 

disposition report to the FBI occurred on December 14, 2012, when the Office of 

Special Investigations Detachment 225 Special Agent-in-Charge received the results 

of Kelley’s trial and closed the Kelley investigation. The Agent falsely certified in the 

Air Force’s database system that the Air Force submitted to the FBI Kelley’s 

fingerprints and final disposition reports. Moreover, the investigative case file cover 

sheet did not contain a supervisor’s signature or a date to signify that the file was 

reviewed for closure, as required by Air Force Office of Special Investigations Manual 

71-121. 

B. Systematic failures in operations, organization, hiring, training, 

and supervision caused the Air Force’s failure to collect, maintain, 

and submit Devin Kelley’s fingerprint cards and final disposition 

reports to the FBI. 

4.10 The Air Force’s failure to collect, maintain, and submit fingerprint cards 

and final disposition reports to the FBI was not an isolated error. Instead, this failure 

was caused by failures in operations, organization, training, and supervision. 

4.11 For example, the Detachment leadership did not review the file or complete 

the Closed Investigative File checklist and the Investigative Information 

Management System checklist properly. Instead, the Special Agent-in-Charge 

assumed that the case agent had completed the actions necessary and submitted 

Kelley’s fingerprints and final disposition to the FBI. He therefore completed the two 

checklists without verifying that the fingerprints and final disposition report had 

been submitted to the FBI. If the Agent-in-Charge and Superintendent had included 

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a review of Kelley’s fingerprints in the leadership review, the fact that the 

fingerprints had not been submitted would have been identified. 

4.12 Next, according to Air Force Office of Special Investigations Manual 71-121, 

all criminal investigations require monthly supervisory reviews to ensure that 

investigators follow policy and that investigations are sufficient and timely. Air Force 

leadership conducted 15 supervisory reviews of the Kelley investigation from June 

29, 2011, through October 5, 2012. However, none of the supervisory reviews that 

were documented discussed fingerprint card collection or submission. Although Air 

Force policy required supervisory reviews to include the investigatory case file, no 

such reviews of the case file occurred. Kelley’s fingerprint cards were retained in the 

investigative case file. Had they reviewed the case file, more likely than not, they 

would have identified that the Air Force had not submitted Kelley’s fingerprints to 

the FBI. The monthly supervisory reviews of Kelley’s investigative case file were 

incomplete and ineffective in identifying that Kelley’s fingerprint cards remained in 

the investigative case file and had not been submitted to the FBI. 

4.13 The high turnover and disorganization in the Office of Special 

Investigations contributed to the Air Force’s failure to collect, maintain, and submit 

Kelley's fingerprint cards and final disposition reports to the FBI. Between June 2011 

and March 31, 2013, Air Force Office of Special Investigations Detachment 225 had 

two Special Agents-in-Charge and three interim Special Agents-in-Charge. The 

second interim Agent-in-Charge described the administrative process for closing 

cases was a “disaster” as a result of the large backlog of investigative case files 

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stacked throughout the office. The third interim agent observed approximately 30 

cases spread throughout the Detachment office area in various stages of closure, in 

terrible condition, with many of the cases missing investigative documentation and 

corresponding activities with the agent notes. Air Force assigned a permanent Agentin-Charge in December 2011. This agent noticed that staffing challenges and 

operations tempo caused the office to be “hell.” The office was severely behind in 

closing out old cases and described the unit as a “bottomless pit” that was impossible 

to dig out from. 

4.14 The Inspector General determined that the Air Force’s failure to submit 

Kelley’s fingerprints was part of a systemic problem with the Office of Special 

Investigations Detachment 225. After reviewing 70 closed investigations for 

fingerprint card and final disposition report submission to the FBI, the Inspector 

General found 8% of cases where investigators did not collect fingerprints; 20% of 

cases where investigators collected, but did not submit to the FBI, fingerprint cards; 

and 31% of cases where investigators failed to submit to the FBI final disposition 

reports. 

4.15 In 2014, the Inspector General of the Department of Defense evaluated the 

reporting system’s compliance with its own mandatory procedures and policies. The 

principal finding of this investigation condemned the performance of the Department 

of Defense. Specifically, it found that the military was: 

not reporting criminal incident data to the Federal Bureau 

of Investigation (FBI) for inclusion in the annual Uniform 

Crime Reports to the President, the Congress, State 

governments, and officials of localities and institutions 

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participating in the Uniform Crime Report Program, as 

required by Federal law. 

As a result of this failure: 

10 years of DoD criminal incident data have not been 

provided to the FBI for inclusion in the annual uniform 

crime reports to the President, the Congress, State 

governments, and officials of localities and institutions 

participating in the UCR Program, as implemented in DoD 

Directive 7730.47 and DoD Manual 7730.47-M, Volume 1. 

4.16 At the time of the Kelley investigation, the Air Force Security Forces Center 

was responsible for training, equipping, and organizing all Security Forces for the Air 

Force. At the time of the Kelley assault investigation, the Air Force Security Forces 

Academy did not train students on fingerprint card collection and submission or on 

final disposition report submission procedures. In 2015, the Air Force Security Forces 

created fingerprint training as part of the “Annual Home Station Training” 

requirements. The 1-hour long lesson plan was designed to be used by individual 

Security Forces Squadrons to train personnel on the physical collection of fingerprints 

and completion of the fingerprint card. However, the lesson plan does not contain any 

information relating to the submission of fingerprints. Additionally, the lesson plan 

did not reference Department of Defense or Air Force policy requirement and did not 

specify the conditions under which the fingerprint cards should be submitted nor did 

the lesson plan discuss the submission of the final disposition report. 

4.17 The agents working on the Kelley investigation acknowledge the lack of 

training. One investigator explained that the only fingerprint training he received 

was “on-the-job” and that it related to the collection of fingerprints. Other 

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investigators could not recall any training on fingerprinting subjects of investigation 

and under what circumstances. Neither did the Air Force provide training on an 

annual or reoccurring basis. The Inspector General interviewed one officer who 

explained that the majority of 49th Security Forces personnel were not familiar with 

collecting fingerprints at the time of the Kelley assault investigation. 

V. CAUSES OF ACTION 

A. Negligence 

5.1 The Air Force failed to use ordinary care and failed to do that which a 

person of ordinary prudence would have done under same or similar circumstances 

by failing to collect, maintain, and transmit Devin Kelley’s fingerprint’s to the FBI, 

as described in this Complaint. 

5.2 The Air Force failed to use ordinary care and failed to do that which a 

person of ordinary prudence would have done under same or similar circumstances 

by failing to submit Devin Kelley’s final disposition information to the FBI, as 

described in this Complaint. 

5.3 The Air Force negligently failed to report criminal incident data to the 

Defense Incident-Based Reporting System of Devin Kelley’s criminal conviction of a 

crime punishable by imprisonment for a term exceeding one year, convictions of 

domestic violence, and commitment to the mental institution. 

5.4 The Air Force failed to submit criminal-history data to the FBI when 

probable cause existed in the Air Force Office of Special Investigations and Air Force 

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Security Forces investigations on Kelley, after Kelley’s court-martial conviction, and 

also upon his post-trial confinement at Holloman Air Force Base. 

5.5 The United States, through Secretary of the Air Force Heather Wilson, 

admitted the allegations found in Paragraph 5.4 in response to a question by Senator 

Mazie K. Hirono in a submission dated December 13, 2017. 

5.6 Alternatively, the Air Force negligently submitted inaccurate or incomplete 

criminal incident data to the Defense Incident-Based Reporting System of Devin 

Kelley’s criminal conviction of a crime punishable by imprisonment for a term 

exceeding one year, convictions of domestic violence, or commitment to the mental 

institution. 

5.7 The Air Force negligently failed to correct incomplete or incorrectly 

submitted criminal-incident data to the Defense Incident-based Reporting System of 

Devin Kelley’s criminal conviction of a crime punishable by imprisonment for a term 

exceeding one year, convictions of domestic violence, or commitment to the mental 

institution. 

5.8 The Air Force negligently failed to submit fingerprint cards and final 

disposition reports for Devin Kelley’s criminal convictions, or alternatively submitted 

incomplete or incorrect data to the FBI as required by federal law. As a result, the 

FBI’s Next Generation Identification database lacked critical information about 

Devin Kelley’s history and failed to prevent the sale of firearms to Devin Kelley. 

5.9 Findings by the Inspector General confirmed the Air Force Office of Special 

Investigations and Security Forces personnel then assigned at Holloman Air Force 

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Base, New Mexico, did not report required information to civilian law enforcement in 

the Kelley case. The review also found the error in the Kelley case was not an isolated 

incident and similar reporting lapses occurred at other locations. 

5.10 In fact, the problem was widespread across both the Office of Special 

Investigations and the Air Force Security Forces. A 2015 Defense Department audit 

revealed that the Air Force was not in compliance with a mandatory statutory 

requirement to report all offender criminal history data and, despite the discovery of 

non-compliance, the Air Force made no retroactive corrections. 

5.11 The Air Force admitted the allegations contained in Paragraph 5.9 in a 

press release published on November 28, 2017. The Air Force, through the Secretary 

of the Air Force Heather Wilson, admitted the allegations contained in 

Paragraph 5.10 on December 6, 2017 before the United States Senate Judiciary 

Committee. 

5.12 The Department of Defense negligently failed to ensure that the Air Force 

submitted the required criminal incident, fingerprint cards, and final disposition 

data. 

5.13 The Department of Defense negligently failed to ensure that identified 

criminal incident data errors are tracked to correction. 

5.14 The Department of Defense negligently failed to populate data about Devin 

Kelley’s criminal conviction of a crime punishable by imprisonment for a term 

exceeding one year, convictions of domestic violence, and commitment to the mental 

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institution from the Defense Incident-Based Reporting System into the FBI’s 

National Incident-Based System. 

B. Negligent Failure to Train & Supervise 

5.15 The United States and its agencies has an obligation to adequately train 

and supervise employees. The Air Force’s failure to collect, maintain, and submit 

fingerprint cards and final disposition reports to the FBI was not an isolated error. 

Instead, this failure was caused by failures in operations, organization, training, and 

supervision, as described in this Complaint. 

5.16 The United States, through its agencies, failed to adequate supervise the 

individuals who were tasked with the collection, maintenance, and submission of 

Devin Kelley’s fingerprints and final disposition reports to the FBI or the DOD’s 

DIBRS database. Had they adequately supervised the collection of fingerprints, they 

would have noticed that in some instances, their employees did not collect 

fingerprints. They would have noticed in other instances, their employees did not 

maintain fingerprint cards in the case file. And they would have noticed that at no 

point, did their employees submit Devin Kelley’s fingerprint cards or final disposition 

reports to the FBI for inclusion in the National Instant Criminal Background Check 

System. 

5.17 The United States Air Force at no point between 2009 and 2013 trained its 

employees to collect, maintain, and submit fingerprint cards and final disposition 

reports to the FBI for inclusion in the National Instant Criminal Background Check 

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System. Nor did the Air Force put in place a system that verified if the required 

reporting had occurred, which it had not. 

5.18 These failures by the Air Force and Department of Department of Defense 

to train and supervise its reporting personnel led to its employees failing to submit 

reports and data to both the DIBRS and FBI about Devin Kelley. Thus, the United 

States is liable for negligent training and negligent supervision. 

C. Negligent Undertaking 

5.19 The United States Congress voluntarily undertook the creation of a 

national instant background check system upon passage of the Brady Bill. To 

implement this system, the Department of Justice created the National Instant 

Criminal Background Check System. The Department of Defense and Air Force 

implemented policies, procedures, manuals, and instructions—and acted under the 

color of these regulations—regarding the reporting of individuals who received 

convictions for domestic violence, incarceration for a crime punishable by more than 

one year, and mental institution commitment. These policies and procedures included 

the collection, maintenance, and reporting of fingerprint cards of those disqualified 

individuals. 

5.20 The United States, through its agencies, voluntarily undertook the training 

and supervision of its employees responsible for the collection, maintenance, and 

submission of fingerprint cards and final disposition reports to the FBI. 

5.21 The United States, through its agencies, voluntarily undertook the 

correction of inaccurate or incomplete submissions to FBI’s National Instant 

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Criminal Background Check System. On multiple occasions, the Department of 

Defense’s Inspector General alerted the United States and its agencies to its 

negligent failure to collect, maintain, and submit fingerprint cards and final 

disposition data to the FBI. The Air Force agreed with the Inspector General’s 

recommendations and agreed to take corrective action. 

5.22 The United States, through Congress and its agencies, rendered these 

services because Congress and the agencies recognized that they were necessary for 

the protection of individuals like the Plaintiffs. To limit this violence, Congress 

disqualifies certain people from buying, owning, or possessing guns and established 

a national background check system to prevent these people from obtaining guns. In 

fact, when asked the question, “[W]ho do you believe is the beneficiary of the Brady 

Act? Who do you think Congress was trying to protect?” Thomas Ward, Deputy 

Assistant Attorney General for the United States responded, “All of us. Three 

hundred and sixty-five million Americans.”7 Mr. Ward told the truth when he stated 

the Brady Act was intended to protect all Americans. 

5.23 The failure to use reasonable care increases the risk that individuals like 

Devin Kelley obtain firearms when they are prohibited by law from obtaining such 

firearms. In fact, the foreseeable and proximate result of the failure to use reasonable 

care is that individuals like Devin Kelley will pass the background check when 

obtaining firearms for the use of mass murders, like the one he committed in 

7 Sanders v. United States, No. 18-1931 (4th Cir. May 7, 2019) (Oral Argument). 

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Sutherland Springs. What’s more, the United States, through its agencies, knew of 

the specific increase of risk posed by Devin Kelley if the United States failed to 

exercise reasonable care in its undertaking because the United States knew of Devin 

Kelley’s conduct between 2009 and 2013, as detailed in this Complaint and in the 

Department of Defense Inspector General’s investigation of the matter. 

5.24 The United States, through its agencies, negligently failed to: (a) collect, 

maintain, and transmit Devin Kelley’s fingerprint cards to the FBI and DOD DIBRS; 

(b) submit Devin Kelley’s final disposition report to the FBI and DOD DIBRS; 

(c) train and supervise its employees and agents with regard to the collection, 

maintenance, and transmission of fingerprint cards to the FBI and DOD DIBRS; (d) 

train and supervise its employees and agents with regard to the submission of final 

disposition reports to the FBI and DOD DIBRS; and (c) take corrective action multiple 

times when alerted to this negligence. 

D. Negligence Per Se8

5.25 Under Texas law, a negligence per se cause of action has three elements: (1) 

a legal duty, (2) a breach of that duty, and (3) damages proximately caused by the 

breach. Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998). 

8 Plaintiffs appreciate that on May 23, 2019, the Court dismissed the negligence per se 

claims in Case 5:18:cv-00555-XR and several other consolidated civil actions arising from 

the mass shooting in Sutherland Springs, Texas that gives rise to this civil action. In 

reviewing the briefing and the Court’s order, Plaintiffs believe the issues surrounding this 

claim have been ably and comprehensively briefed for the Court and that the Court has 

thoroughly analyzed these issues and reached a reasoned conclusion. Nevertheless, 

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5.26 Defendant’s violations of federal law breached their duty to collect, process, 

and submit Kelley’s information to the national background-check system.9 

5.27 Under Texas law, Defendant’s failures to report Kelley’s information violate 

a clearly-defined standard of conduct. 

VI. CAUSATION 

A. The Department of Defense and Air Force’s negligence caused 

injuries to the Plaintiffs. 

6.1 One or more of the above negligent acts of the Air Force and the Department 

of the Defense directly and proximately caused injury to the Plaintiffs. 

6.2 When Devin Kelley attempted to purchase firearms to use in the 

Sutherland Springs shooting, the FBI Incident-Based Reporting System should have 

included Devin Kelley’s criminal conviction of a crime punishable by imprisonment 

for a term exceeding one year, convictions of domestic violence, and commitment to 

the mental institution. The FBI’s database did not contain any of this required 

Plaintiffs respectfully disagree with the Court’s conclusion and include this claim in order 

to reserve the right to appeal the Court’s decision to dismiss this claim. If the Court is 

amenable to reconsidering dismissal of this claim, Plaintiffs would be happy to submit 

additional briefing to the Court. Otherwise, Plaintiffs incorporate by reference the briefs 

that have been submitted to the Court on the negligence per se claim and reserve the right 

to appeal the dismissal of this claim. 

9 See Wal-Mart v. Tamez, 960 S.W.2d 125, 127–28 (Tex. App.—Corpus Christi 1997, pet. 

denied) (recognizing that under Texas law, a violation of 18 U.S.C. § 922 is negligence per 

se.); Bryant v. Winn-Dixie Stores, 786 S.W.2d 547, 549 (Tex. App.—Fort Worth 1990, writ 

denied) (same); Peek v. Oshman’s Sporting Goods, 768 S.W.2d 841 (Tex. App.—San 

Antonio 1989, writ denied) (same); Ellsworth v. Bishop Jewelry and Loan Co., 742 S.W.2d 

533, 535 (Tex. App.—Dallas 1987, no writ) (same). 

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information, or alternatively, contained incorrect or incomplete information, as a 

direct and proximate result of one or more of negligent acts of the Department of 

Defense and Air Force. 

6.3 When Devin Kelley attempted to purchase firearms to use in the 

Sutherland Springs shooting, the FBI’s National Instant Criminal Background 

Search System should have contained Devin Kelley’s criminal history, populated from 

the FBI’s Next Generation Identification (or the Interstate Identification Index) 

system. The FBI’s National Instant Criminal Background Search System should have 

contained Devin Kelley’s criminal history populated by submission of his final 

disposition report from the Air Force. However, because of the Government’s 

negligence, Kelley’s fingerprint identification and criminal disposition reports were 

not submitted to the FBI and the FBI’s Background Check System did not 

disqualifying information on Devin Kelley. 

6.4 As a result of one or more of the above acts of negligence, when Academy 

requested the FBI search its National Instant Criminal Background Search System 

to determine whether it could sell firearms to Devin Kelley, the FBI notified Academy 

to “proceed” with the sale. But for the United States’ negligence, there would have 

been prohibiting information within the FBI’s Background Search System. And but 

for the United States’ negligence, the FBI would have notified Academy that the sale 

should be “denied.” 

6.5 When Devin Kelley attempted to purchase the firearms used in the 

Sutherland Springs shooting, the sale should have been blocked for one or more of 

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the following reasons: (a) he had a conviction of a crime punishable by imprisonment 

for a term exceeding one year; (b) he had a conviction for domestic violence; and (c) 

he had previously been committed to a mental institution. 

6.6 When Devin Kelley purchased the firearms used in the Sutherland Springs 

shooting, his omission from the FBI’s background check system and ability to 

complete the purchase was a direct, proximate, and foreseeable result of one or more 

acts of negligence of the Department of Defense and Air Force. 

B. Had the Air Force reported Kelley’s history, the FBI’s Instant 

Criminal Background Check System would have blocked Devin 

Kelley’s firearm purchase. 

6.7 Devin Kelley purchased the firearms used in the Sutherland Springs 

shooting from a federal firearms licensee, Academy Sports & Outdoor. At the time, 

the licensee must submit biographical information about Kelley to the FBI’s Instant 

Criminal Background Check System. If the Air Force had properly reported Devin 

Kelley’s fingerprint cards and history to the FBI, the Background Check System 

would have informed the firearms dealer to deny the purchase. 

6.8 The purpose of the Uniform Federal Crime Reporting Act of 1988, the Brady 

Handgun Violence Prevention Act, and the Domestic Violence Offender Gun Ban are 

to ensure that violent offenders and high-risk individuals like Kelley do not get access 

to firearms. The Department of Defense in 1994 began designing the Defense 

Incident-Based Reporting System (DIBRS) to meet criminal justice related reporting 

requirements mandated by the Uniform Federal Crime Reporting Act and the Brady 

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Handgun Violence Prevention Act. The DIBRS permits the DOD to forward offense 

and arrest information required by FBI. 

6.9 The entry into the federal law-enforcement database would have blocked 

Mr. Kelley’s purchase of the firearms used in the Sutherland Springs’ shooting. The 

Government’s acts or omissions directly and proximately resulted in Devin Kelley’s 

purchase of the firearms used in the November 5, 2017 Sutherland Springs First 

Baptist Church shooting. 

VII. DAMAGES 

7.1 Devin Kelley used the guns he purchased at Academy Sports & Outdoor to 

kill twenty-six individuals and injure twenty others on November 5, 2017. Plaintiffs 

seek damages based on the physical and mental trauma they have suffered because 

of this shooting. 

7.2 Robert Braden was shot and his father, Keith Braden, was killed in the 

shooting. 

7.3 Rebecca Metcalf’s father, Keith Braden, was killed in the shooting. 

7.4 Brenda Moulton was shot and suffered grievous injuries in the shooting. 

7.5 Based on the trauma Plaintiffs have suffered, Plaintiffs seek recovery of all 

damages to they are entitled to recover pursuant to state and federal law including, 

but not limited to, the following: 

a) Past and future physical pain & suffering; 

b) Past and future mental anguish; 

c) Past and future medical, healthcare, and attendant care expenses; 

d) Past and future physical impairment; 

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e) Past and future physical disfigurement; 

f) Past and future lost income and loss of earning capacity; 

g) Past and future loss of companionship and society; 

h) Past and future loss of care, maintenance, support, services, advice, 

counsel, and reasonable contributions of pecuniary value; 

i) Loss of inheritance; 

j) Out of pocket expenses; and 

k) Other pecuniary damages. 

VIII. JURISDICTION, VENUE, & SERVICE 

8.1 This Federal District Court has federal-question jurisdiction of this action 

because this action is brought pursuant to and in compliance with 28 U.S.C. §§ 

1346(b), 2671–2680, commonly known as the Federal Tort Claims Act. 

8.2 Venue is proper in this district pursuant to 28 U.S.C. § 3191(e)(1) because 

the United States is a defendant, Plaintiffs reside in this district, and no real property 

is involved in the action. 

8.3 The United States of America may be served with process in accordance 

with Rule 4(1) of the Federal Rules of Civil Procedure. Service is affected by serving 

a copy of the Summons and Complaint on the United States Attorney John F. Bash, 

United States Attorney for the Western District of Texas by certified mail, return 

receipt requested at his office: 

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United States Attorney’s Office 

ATTN: Civil Process Clerk 

601 NW Loop 410, Suite 600 

San Antonio, Texas 78216 

8.4 Service is also affected by serving a copy of the Summons and Complaint on 

William Barr, Attorney General of the United States, by certified mail, return receipt 

requested at: 

United States Attorney General’s Office 

ATTN: Civil Process Clerk 

950 Pennsylvania Avenue, NW 

Washington, DC 20530-0001 

IX. LIABILITY OF THE UNITED STATES 

9.1 This case is commenced and prosecuted against the United States of 

America to and in compliance with Title 28 U.S.C. §§ 2671-80, the Federal Tort 

Claims Act. Liability of the United States is predicated specifically on 28 U.S.C. 

§ 2674 because the personal injuries and resulting damages of which the Complaint 

is made were proximately caused by the negligence, wrongful acts or omissions of 

employees or agents of the United States of America working for the United States 

Air Force or Department of Defense, while acting within the scope of their office, 

employment, or agency under circumstances where the United States of America, if 

a private person, would be liable to the Plaintiffs in the same manner and to the same 

extent as a private individual. 

9.2 The United States Departments of Defense and Air Force are agencies of 

the United States. The Defendant, the United States of America, through its 

agencies, at all times material to this lawsuit, owned and operated Holloman Air 

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Force Base and staffed its facilities and vehicles with its agents, servants and 

employees. The Defendant, the United States of America, through its agencies, at all 

times material to this lawsuit, owned and operated the Defense Manpower Data 

Center, which operates the Defense Incident-Based Reporting System. 

9.3 The United States, through its agency, the Air Force, at all times material 

to this lawsuit and at all times described in this lawsuit, owned and operated the 

following and staffed it with its agents, employees, or representatives: 

 Air Force Security Forces; 

 Air Force Security Forces Center; 

 Air Force Security Forces Academy; 

 Air Force Office of Special Investigations Detachment 225; 

 49th Security Forces Squadron; 

 Holloman Air Force Base Mental Health Clinic; 

 49th Logistics Readiness Squadron; and 

 49th Security Forces Squadron Confinement Facility. 

9.4 This lawsuit is not a claim listed in 28 U.S.C. § 2680, exceptions to the 

Federal Tort Claims Act. 

X. JURISDICTIONAL ALLEGATIONS 

10.1 Pursuant to 28 U.S.C. §§ 2672 and 2675(a), the claims set forth here were 

filed with and presented administratively to the United States of America. 

 The United States Air Force acknowledged receipt of Robert Braden’s 

claim on July 2, 2019, stating that it had received Plaintiff Braden’s 

claim on June 27, 2019. 

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 The United States Air Force acknowledged receipt of Rebecca Metcalf’s 

claim on May 10, 2019, stating that it had received Plaintiff Metcalf’s 

claim on May 9, 2019. 

 The United States Air Force acknowledged receipt of Brenda Moulton’s 

claim on April 30, 2019, stating that it had received Plaintiff’s claim on 

April 29, 2019. 

Each above-referenced claim stated a “sum certain.” 

10.2 The United States failed to make final disposition of this claim within six 

(6) months of presentation of their claims. This action was filed greater than six (6) 

months from the presentation of the claims underlying the lawsuit. 

10.3 Accordingly, Plaintiffs have complied with all jurisdictional prerequisites 

and conditions precedent to the commencement and prosecution of this lawsuit. 

XI. CONCLUSION 

Plaintiffs request that Defendant be cited to appear and answer this Complaint 

and that upon final trial, Plaintiffs have judgment against Defendant for the amount 

of actual damages and for other and different amounts as they shall show by proper 

amendment before trial, for post-judgment interest at the applicable legal rate, for 

all court costs incurred in this litigation, and for such other relief, at law and in 

equity, both general and special, to which Plaintiffs may show themselves entitled to 

and to which the Court believes them deserving. 

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Respectfully Submitted, 

/s/ Justin Demerath 

JUSTIN DEMERATH 

jdemerath@808west.com 

Texas State Bar No. 24034415 

DAVID CAMPBELL 

dcampbell@808west.com 

Texas State Bar No. 24057033 

O’HANLON, DEMERATH & CASTILLO, PC 

808 West Avenue 

Austin, TX 78701 

Telephone: (512) 494-9949 

Facsimile: (512) 494-9919 

Attorneys for the Plaintiffs 

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