The Justice Department on Monday formally appealed a 2021 federal court ruling that found the US government was mostly responsible for the 2017 mass shooting at a church in Sutherland Springs, Texas, arguing that the court erred when it said the government was more at fault for the massacre than the shooter himself.
During the shooting, the gunman, former US Air Force member Devin Patrick Kelley, killed 26 people and wounded 22 others at the First Baptist Church in the small community of Sutherland Springs. He died later that day from a self-inflicted gunshot wound.
“The attack on innocent victims at the First Baptist Church of Sutherland Springs was an inexpressible tragedy and the United States unequivocally does not seek to excuse the Air Force’s failure to submit Kelley’s fingerprints and record of conviction for inclusion in NICS databases,” attorneys for the department wrote in court papers filed Monday evening. “Nonetheless, under settled Texas and federal law, the United States is not liable for Kelley’s actions, and is certainly not more responsible for those acts than the murderer himself.”
DOJ spokeswoman Dena Iverson said in a recent statement that the government and plaintiffs have been engaged in a months-long effort to resolve the case through an out-of-court resolution.
“Although the formal mediation has now ended, we remain open to resolving the plaintiffs’ claims through settlement and will continue our efforts to do so,” Iverson said.
In a July 2021 ruling from US District Judge Xavier Rodriguez for the Western District of Texas, the court found the government 60% responsible for the harm that happened in the shooting and “jointly and severally liable for the damages that may be awarded.”
Rodriguez concluded the Air Force failed to exercise reasonable care when it didn’t submit the shooter’s criminal history to the FBI’s background check system, which increased the risk of physical harm to the general public.
“Even if the United States could be liable, the court erred in apportioning 60% of the responsibility to the United States (20% for line employees and 40% for supervisors), leaving only 40% for Kelley,” the DOJ attorneys argued in their filing on Monday.
“The court committed legal error in apportioning a share of responsibility to the United States under a negligent supervision theory after already imposing liability for the acts of the supervised line employees – under Texas law, these theories are mutually exclusive. Moreover, the court erred by holding the United States more responsible for Kelley’s outrages than Kelley himself,” they wrote.
In its filing, the DOJ asked the Fifth Circuit Court of Appeals to hold oral arguments to hear the appeal, writing: “The record in this case is voluminous and the legal issues are important and complex. Oral argument will be of substantial benefit to this Court in understanding the important issues in the case.”
Victims of the shooting and families who suffered a loss in the incident have previously voiced opposition to the DOJ’s plan to appeal the decision, with an attorney for some of them saying on Monday that the move “dealt a blow to America’s safety.”
“The DOJ’s appeal asks the court to hold that flagrantly and repeatedly violating the law – for over thirty years – by allowing child abusing felons and domestic violence offenders’ guns does not risk the safety of the public. The twenty-six dead and twenty-two injured at the Sutherland Springs mass shooting disagree,” Jamal Alsaffar, the lead attorney for the Sutherland Springs First Baptist Church families, said in a statement.
Kelley was charged in military court in 2012 on suspicion of assaulting his spouse and their child. Kelley received a bad conduct discharge, confinement for 12 months, and was demoted to E-1, or airman basic.
But despite his history of domestic abuse and questionable behavior involving firearms, Kelley was able to purchase the Ruger AR-556 rifle he allegedly used in the shooting from a store in San Antonio in April 2016, a law enforcement official previously told CNN.
The failure to relay that information prevented the entry of his conviction into the federal database that must be checked before someone is able to purchase a firearm. Had his information been in the database at the National Criminal Information Center, it should have prevented gun sales to Kelley. Federal law prohibits people convicted of a misdemeanor crime involving domestic violence from owning firearms.
Rodriguez’s order stated that no other individual – not even the shooter’s parents or partners – knew as much as the government did about his violent history and the violence he was capable of committing.
CNN’s Jessica Schneider, Meridith Edwards, Ashley Killough and Paul LeBlanc contributed to this report.