Devin Kelley, 26, bought an assault style rifle and ammunition at an Academy Sports and Outdoors Store. Kelley allegedly stormed the First Baptist Church in rural Sutherland Springs on Nov. 5, 2017, and opened fire, leaving 26 dead, according to police, who have included an unborn child in the death count.
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Jason Webster, an attorney for several victims and families pursuing the lawsuit, alleges the store where Kelley bought the AR-style gun conducted an illegal sale. He says the Academy store illegally sold the gun to Kelley when he used a Colorado driver's license to buy it.
About 18 months before the massacre, Kelley went into an Academy Sports and Outdoors store in Texas where he bought an AR-556 model 8500, Webster told ABC News on Monday. The gun came with a 30-round magazine within the package, Webster said.
Kelley showed his Colorado driver's license as part of the sale process, Webster said.
Under Colorado law, an individual cannot buy, sell or transfer any firearms or magazines over 15 rounds, Webster said.
Academy was expected to comply with the laws of both states but failed to, he claimed. The store "knew or should have known at that time that he was a Colorado resident and he couldn't purchase" that weapon, Webster said.
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A spokeswoman for Academy Sports + Outdoors said the company would not comment on ongoing litigation.
Bexar County District Court Judge Karen Pozza on Monday denied Academy's request that the lawsuit be thrown out.
That means the lawsuit can proceed to a jury, Webster said.
The lawsuit claims the store owed the victims "a duty of reasonable care to ensure the safety, care and well-being of the public... By selling the gun and 30-round magazine to Kelley without the proper oversight and by failing to follow policies, procedures, and applicable law in selling firearms pursuant to the laws, defendant supplied Kelley with a dangerous instrumentality."
The lawsuit asks for millions in damages.