Angry Judge Sanctions Justice Department Lawyers in Texas Massacre Case

Law-enforcement officials work at the scene of a fatal shooting at the First Baptist Church in Sutherland Springs, Texas, on Nov. 5, 2017. (Nick Wagner/Austin American-Statesman via AP)

SAN ANTONIO (CN) – Shortly after storming out of his own courtroom Wednesday, a federal judge in San Antonio sanctioned Justice Department attorneys for not disclosing the names of Air Force staffers who neglected to alert the FBI about a former airman who killed 26 people at a Texas church two years ago.

Less than five minutes into a status conference on the shooting victims’ negligence suit against the federal government, U.S. District Judge Xavier Rodriguez angrily walked out of his courtroom, threatening federal lawyers with sanctions for refusing to submit initial witness disclosures.

“I have to take a break, as I am already mad,” Rodriguez said, before calling for a 15-minute recess so the Justice Department lawyers could call their supervisors in Washington, D.C.

The litigation has been ongoing since June 2018, nearly a year after dishonorably discharged airman Devin Kelley used a Ruger AR-556 rifle to shoot and kill 26 worshippers at the First Baptist Church in Sutherland Springs, a town of 600 located about 30 miles southeast of San Antonio. Twenty more were injured in the shooting. Kelley was found dead in his car shortly after.

Survivors and victims’ families have filed 19 lawsuits in federal court since.

Kelley had served a year in the brig after being court-martialed in 2012 for beating his wife Danielle and fracturing his young stepson’s skull. But Air Force officials never reported this to the FBI’s National Criminal Information Center database, as required by law.

The victims’ attorneys say that if the Air Force hadn’t neglected to report Kelley to the FBI, the shooter would not have been able to purchase the rifle and ammunition used in the November 2017 massacre. But before the cases can go to trial, the government’s lawyers need to name the Air Force staff members responsible for reporting court-martialed personnel to the NCIC database.

After the 15-minute break, Rodriguez returned to his bench. Justice Department attorneys Austin Furman and Paul Stern requested a protective order, indicating an unwillingness to put the staff at fault on the public record.

“Government, with its infinite wisdom … has decided it doesn’t want to disclose the names,” Rodriguez replied before handing down the sanctions.

The Justice Department must pay the plaintiffs’ fees for “every single” one of the 13 attorneys present at the hearing and must submit the names by the end of the day Friday.

“The courts are open forum, so unless there is a particular need to keep some information kept from the public … that’s when protective orders get kicked in,” Rodriguez said.

Furman, who served as the government’s lead counsel during Wednesday’s hearing, conceded that no threats had been made against the Air Force personnel who failed to report Kelley.

“We’re working in a black box,” said Jamal Alsaffar, lead counsel for the plaintiffs’ consolidated cases. “They have all this information readily available at the fingertips. We haven’t got the names.”

After sanctioning the government, Rodriguez grilled Alsaffar for the plaintiffs’ own procedural improprieties, including submitting documents to the court totaling more than 600 pages of disclosures and discovery requests.

The rest of the hearing concerned requests for production of documents and other evidence that the survivors’ legal team will use to construct their case against the government.

In May, Rodriguez tossed some of the survivors’ legal claims as a matter of law, finding that they could not move forward on their negligence per se allegations but preserved their tort claims for negligent undertaking and negligent training and supervision.

Though the case has narrowed, one thing hasn’t changed: the court’s frustration with Justice Department attorneys’ refusal to speedily provide information such as witness disclosures, discovery requests and factual stipulations, and their failure to timely file dispositive motions.

At an October 2018,  status conference, Rodriguez told federal attorneys, “I don’t understand why the government won’t agree to factual statements that its own personnel has admitted to,” referring to an inspector general report on the Air Force’s failure to report Kelley to the FBI.

Government attorneys again seemed reticent about the findings of the inspector general, but Rodriguez wasn’t having it.

“You’re already trying my patience, since June 2018,” the judge said Wednesday. “Now my good faith?”

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