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Relative of Sutherland Springs shooting victim gets court setback

Guillermo ContrerasJanuary 16, 2018

A federal judge on Tuesday rejected a request by a relative of one of the Sutherland Springs shooting victims permission to interview several Air Force officials about the agency’s handling of the shooter’s case, but will determine next month whether to allow the deposition of those responsible for reporting the shooter’s military convictions to the FBI.

Lawyer Thomas J. Henry sought to interview 10 potential witnesses using “Rule 27,” a federal rule of civil procedure that allows depositions before a lawsuit is filed if there is a danger that the testimony would otherwise not later be available. Henry represents Roy White, a son of Lula White, one of the 26 people killed in the Nov. 5 church shooting. Lula White was the grandmother of the estranged wife of the shooter, Devin Kelley.

Kelley did jail time and was kicked out of the Air Force for domestic violence in which he cracked his stepson’s skull. Yet the Air Force admittedly did not report that to a federal database. That information likely would have prevented him from legally buying guns, including the assault-style rifle he bought in April 2016 that he used in the church rampage.

Federal law requires plaintiffs to first file an administrative civil claim with the agency alleged to have committed wrongdoing, and that agency has six months to respond. If the matter isn’t settled, the plaintiffs can then file a lawsuit in court, but Henry filed paperwork in federal court that sought to preserve evidence and says he plans to file a civil claim.

After a telephonic hearing Tuesday, U.S. District Judge Xavier Rodriguez sided with Assistant U.S. Attorney John F. Paniszczyn, who argued — among other things — that Henry had not even filed any formal civil claims against the Air Force and was misusing Rule 27 as a backdoor way to gain discovery.

“The purpose of Rule 27 is to preserve testimony that would otherwise be lost,” Judge Rodriguez ruled afterward. “Rule 27 is not a license for general discovery.”

The judge set a hearing for Feb. 6 to take up Henry’s request to depose those in charge of reporting Devin Kelley’s criminal convictions to the federal database.

In the meantime, the judge ordered the parties to confer to determine “the identity of this individual(s), the job title held by this person, the office/agency he/she was employed by, and whether the testimony is at risk of loss.”

Guillermo Contreras is a San Antonio Express-News staff writer. Read more of his stories here. | gcontreras@express-news.net | @gmaninfedland

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