Why Churches Should Report Criminal Activities

Air Force’s liability for church shootings has broader implications—including the reporting of sexual abuse.

Key point. Negligence is a common basis for liability. Negligence is conduct that creates an unreasonable and foreseeable risk of harm to another person that results in injury. Negligent conduct need not be intentional. It may consist either of a specific act or failure to act.

A federal district court in Texas ruled that the United States Air Force was 60 percent at fault for the shooting rampage at the First Baptist Church in Sutherland, Texas, in 2017 that left 26 persons dead and 22 more wounded. The failure of Air Force leaders to report the perpetrator’s prior criminal conduct demonstrates the potential liability that organizations—including churches—can face as a result of failing to act.

A former service member attacks Texas church

Devin Patrick Kelley (Kelley) entered the First Baptist Church in Sutherland Springs, Texas, on November 5, 2017, and opened fire, killing 26 people and wounding 22 more. After fleeing the scene, Kelley later died from a self-inflicted gunshot wound.

Several survivors and relatives of those injured or killed (the plaintiffs) sued the United States government, claiming that Kelley should not have cleared the background check mandated for firearms purchases because he had been convicted of a disqualifying offense in November 2012 while he was serving in the Air Force at Holloman Air Force Base in New Mexico. Specifically, Kelley had been convicted by general court-martial of assaulting his then-wife and infant stepson on numerous occasions.

Court: The Air Force failed to meet an obligation

The court noted that the Air Force had an obligation—and multiple opportunities—to ensure that Kelley’s fingerprints and criminal history were submitted to the Criminal Justice Information Services Division (CJIS) of the Federal Bureau of Investigation (FBI) for inclusion in its databases as required by law, but it failed to do so.

In early 2019, the Air Force issued letters of admonishment to three Air Force employees involved in the investigation of Kelley between June 2011 and October 2012.

The letters concluded that the failure to ensure the reporting of criminal history data to the CJIS constituted a dereliction of duty that “fell below the minimum standards” and “contributed to Devin Kelley not being properly identified as an individual prohibited by law from purchasing a firearm.”

The court observed:

There is no question that the [Air Force] agents at [Holloman Air Force Base] who were responsible for collecting and submitting Kelley’s information to the FBI failed to meet this standard of care. [Department of Defense] and [Air Force] instructions imposed mandatory obligations on investigative agents and corrections officers to submit Kelley’s fingerprints and final dispositions. Yet the government stipulated that at no time before the Sutherland Springs Church shooting did the government submit Kelley’s fingerprints or final dispositions. . . . When the [Air Force] received notice of Kelley’s conviction for a reportable offense on November 7, 2012—based in part on conduct discovered during its own investigation—it had an obligation to submit the final disposition report to the FBI within 15 days. It failed to do so. . . . The court concludes that the government failed to exercise reasonable care in performing its undertaking to collect and submit Kelley’s fingerprints and conviction information to the FBI. . . .

The clerk at the Academy Sporting Goods store where Kelley purchased his weapons testified, “We did a [National Instant Criminal Background Check System (NICS)] background check, which goes to the FBI. After the FBI received their document, they sent us a document with a proceed to transfer the firearm to Mr. Devin Kelley.” As a result, “the only reason Kelley was able to acquire the firearms used in the shooting was the Air Force’s failure to submit his criminal history.”

The court concluded:

[T]he government failed to exercise reasonable care in its undertaking to submit criminal history to the FBI. The government’s failure to exercise reasonable care increased the risk of physical harm to the general public, including plaintiffs. And its failure proximately caused the deaths and injuries of plaintiffs at the Sutherland Springs First Baptist Church on November 5, 2017.

What this means for churches

This case is relevant to churches since it suggests that a church can be sued for negligence if it fails to report an incident of child abuse and thereby keeps the offender’s wrongful conduct out of searchable criminal databases.

To illustrate, assume that a pastor learns that a male youth worker has molested a minor female. The pastor decides to handle the matter internally and does not report it to the child abuse hotline.

The offender begins attending another church, where he applies for a youth ministry position. The second church conducts a background check and finds no evidence of wrongdoing. Accordingly, it selects the individual for a youth ministry position.

If the offender molests a minor in the second church, the argument could be made that the failure of the first church to report the offender’s abusive conduct to the state enabled the offender to molest the victim in the second church. This possibility demonstrates the importance of reporting child abuse . Holcombe v. United States, 2021 WL 2821125 (W.D. Tex. 2021).

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