Air Force Clearly Negligent, Judge Says But That Doesn’t Mean Families Of Those Killed Can Sue The Federal Government

The Air Force was clearly negligent in the way it handled a mentally disturbed airman who killed five people in a 1994 shooting spree at Fairchild Air Force Base.

But that doesn’t mean the families of those Dean Mellberg killed, or the 21 people he wounded, can sue the federal government, U.S. District Judge Justin Quackenbush said Monday.

“The consequences of the tragic events of June 10, 1994, are not lost on this court. There are many areas where I think negligent decisions were made,” Quackenbush said.

“But that’s not what’s before the court at this time.”

Before Mellberg’s victims can have a trial, Quackenbush must first be convinced that the decisions the young airman’s commanders made throughout his troubled Air Force career were outside their discretion.

Quackenbush said he would issue a written opinion in the near future.

It’s true that his Air Force commanders repeatedly ignored warnings that Mellberg had mental problems that made him unsuitable for military service, the judge said.

“I haven’t added up the total number of mental health professionals who made that recommendation,” Quackenbush said, “but there was one in basic training, two at Lowry (Air Force Base) - “

”- and the next one was at Fairchild Air Force Base, that brings us to four,” said federal attorney Michael Truscott, finishing the judge’s list.

But that doesn’t matter, Truscott argued: “The doctors made a recommendation. The commanding officer, in each instance, said, ‘No. I’m going to give this young man a chance.’ It was in the military discretion of the commander.”

The courts cannot consider lawsuits if the actions in question fall within the commander’s discretion, Quackenbush told more than a dozen victims and their family members who had gathered to listen to arguments on the government’s motion to dismiss.

But Quackenbush indicated there was one place where he thought a commander had gone beyond his discretion. When Mellberg was processed for entry into the military, he told doctors he had undergone “family counseling.” The doctors did not ask him for any details, which could have revealed an emotional problem that would have kept him out of the Air Force.

Quackenbush said he thought they probably should have, under certain military regulations.

Attorneys for the victims argued that the commanders should not have accepted, trained or returned Mellberg to duty when doctors diagnosed him with various psychoses or personality disorders. He threatened his roommate, and later doctors at Fairchild, and was sent to an Air Force hospital in Texas under restraints.

There he was prepared for medical discharge. But again, commanders changed their minds and sent him instead to Cannon Air Force Base, near Clovis, N.M.

The decision may have been prompted by the intervention of Mellberg’s mother, and her congressman, U.S. Rep. Dave Camp, R-Mich.

“Whether that’s appropriate or not is not for the court to say,” Quackenbush said.

At Cannon, Mellberg was stopped for trespassing, then hospitalized when he began acting strangely. He eventually was discharged without medical supervision.

“They pull an Orwellian stunt and disregard his medical history,” said Debra Stephens, an attorney for the victims. “There was no option in (the regulations) that you could drop him on the streets of Clovis, N.M., with $6,000 in his pocket.”

From Clovis, Mellberg wandered around the country for several weeks, finally coming to Spokane. He rented a motel room, spent hundreds of dollars in strip joints, then purchased a semiautomatic assault rifle and 70-shot clip. On the afternoon of June 20, he took a cab to the Fairchild hospital complex, which is outside the base security fence.

He entered the hospital annex where he killed the psychiatrist and psychologist who diagnosed him as dangerous and sent him to Texas, then went on a shooting spree through the nearby hospital.

Before he was shot dead by an Air Force security officer, Mellberg killed four people and injured 21 others, including a pregnant woman who subsequently lost the baby she was carrying.

The facts are tragic, Quackenbush said. But the law sets a tough standard for suing the federal government.

“Point me toward a specific, mandatory rule that was violated,” he told attorneys for the victims.

Stephens contended the Air Force should have secured the area around the hospital, and should not have returned Mellberg to active duty after doctors in Texas said he was not qualified for certain jobs.

Quackenbush said he would “pause and reflect” on the victims’ arguments.

, DataTimes