An unidentified soldier holds flowers dropped off at Fort Hood's main gate for shooting victims, Thursday, April 3, 2014, in Fort Hood, Texas. A soldier opened fire Wednesday on fellow service members at the Fort Hood military base, killing three people and wounding 16 before committing suicide.
An unidentified soldier holds flowers dropped off at Fort Hood’s main gate for shooting victims, Thursday, April 3, 2014, in Fort Hood, Texas. A soldier opened fire Wednesday on fellow service members at the Fort Hood military base, killing three people and wounding 16 before committing suicide. (Eric Gay/AP)

An attorney suing the federal government over the 2009 mass shooting at Fort Hood, Texas, said he expects plaintiffs lawyers are paying close attention as the investigation into this week’s fatal shooting at the base unfolds.

Specialist Ivan Lopez, 34, fatally shot three people and wounded 16 others at Fort Hood on April 2 before dying of a suspected self-inflicted gunshot wound. It was the second mass shooting at Fort Hood since 2009, when Army Maj. Nidal Hasan killed 13 people and wounded 32 others.

Reed Rubinstein of Dinsmore & Shohl, lead counsel for victims of the 2009 shooting, said lawyers weighing possible litigation will look for evidence that officials knew, or should have known, that Lopez was a threat.

“If he was recognized or had been identified as a potential risk to others, than I think the likelihood of litigation is much higher,” Rubinstein said. “If not, then a suit may still be filed but its prospects will be tenuous.”

Karen Evans of The Cochran Firm in Washington, who isn’t involved in the Fort Hood case, said litigation was likely, given the significant paper trail left by government investigations following the 2009 shooting.

“They’re going to look at, what were the recommendations, and whether the recommendations were implemented,” Evans said. “They’ve had notice that they were vulnerable and that they were vulnerable from within. … I think the plaintiffs bar will be emboldened by this.”

Evans said any plaintiffs, especially active duty personnel, will nevertheless face an uphill road in court. Under a principle known as the Feres doctrine, military personnel can’t successfully sue under the Federal Tort Claims Act for injuries they suffered as a result of their military service. “The question becomes, are these injures arising out of military service?” Evans said.

Victims of the 2009 attack and their families sued the U.S. Department of Defense, U.S. Army, and FBI in November 2012 in the U.S. District Court for the District of Columbia. They accused government officials of failing to take action against Hasan prior to the shooting despite having evidence that he was a “‘ticking time bomb’ who posed an unreasonable risk of harm to plaintiffs.”

The plaintiffs also sued Hasan and the family of Anwar al-Aulaqi, a U.S.-born suspected al-Qaeda operative accused of conspiring with Hasan. Al-Aulaqi was killed by targeted U.S. missile strikes in Yemen in 2011.

U.S. District Judge Colleen Kollar-Kotelly agreed to put the case on hold while Hasan faced a court-martial. A military jury convicted Hasan in August 2013 and he was sentenced to death.

Under the rules of the military justice system, according to the U.S. Army, a case involving the death penalty is automatically appealed to the U.S. Army Criminal Court of Appeals, and then to the United States Court of Appeals for the Armed Forces.

As of January, the court-martial proceedings were still pending, according to court documents. The government sought the stay, arguing that any position U.S. officials might take in the civil lawsuit could unlawfully influence the criminal proceedings.

Contact Zoe Tillman at ztillman@alm.com. On Twitter: @zoetillman.