Feds on Trial Over 2017 Massacre at Texas Church

Victims and their families accuse the federal government of inadequately maintaining the national database intended to prevent violent criminals from purchasing firearms.

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) — The U.S. government will stand trial in San Antonio on Wednesday. Shooting victims and their families say that if Air Force officials had properly reported a former airman’s violent history to the FBI, the shooter would not have been able to purchase the guns he used to kill 26 churchgoers and himself in 2017.

In 2018, survivors of the shooting at the First Baptist Church in Sutherland Springs, Texas, joined with the families of slain worshippers in suing the federal government. More than two dozen civil lawsuits were filed in federal court. This week’s trial consolidates all the families’ claims into one action against the government.

Devin Patrick Kelley had been dishonorably discharged from the Air Force in 2014 after a court-martial found him guilty of assaulting his wife Danielle and fracturing his young stepson’s skull. But this and other violent episodes were never reported to the FBI’s National Criminal Information Center, which the shooting victims argue was required by law.

This FBI database is the same one used by firearm sellers to conduct mandated federal background checks on gun purchases, as required by the 1993 Brady Handgun Violence Prevention Act.

The crux of the families’ argument is that if the Air Force had properly trained its personnel to report violent offenders to the FBI, Kelley never could have bought the AR-style semiautomatic rifle and ammunition that he used in the shooting from Academy Sports + Outdoors, a sporting goods store chain. Two purchased handguns were also found in Kelley’s car after the shooting.

The government’s lawyers contend that the very same federal law protects federal employees from liability in the case that they do not successfully prevent illegal arm sales. The defense has also moved to name Academy as a responsible third party in the case.

In a January order, U.S. District Judge Xavier Rodriguez found that the victims and their families had adequately alleged that the federal government could be held liable for negligently operating its background-check database and inadequately supervising Kelley’s file.

“The court finds as a matter of law that, in undertaking to establish and operate a complex national background-check system, the government assumed the duty to operate the system with due care and that the government breached that duty,” Rodriguez wrote. “However, because there are genuine issues of fact as to whether the government’s negligence increased the risk of harm and proximately caused plaintiffs’ injuries, plaintiffs are not entitled to judgment as a matter of law.”

The parties agreed to participate in a bench trial before Rodriguez, who will weigh the evidence and make the calls regarding the case’s facts and legal questions. In the January ruling, Rodriguez dismissed the plaintiffs’ claim that the government negligently trained Air Force staff, finding that a “discretionary function exception,” which grants considerable latitude to the government’s judgment in choosing how to train its agents and employees, barred the families’ claim.

The assault charge that got Kelley discharged wasn’t his only infraction. According to a deposition transcript filed last August, Kelley was receiving inpatient care at a Sunland, New Mexico, mental facility in 2012 for threatening to conduct a mass shooting while he was still in the Air Force. Other court records indicate that he escaped the institution before police found him in nearby El Paso, Texas.

In December 2018, an official report issued by the Department of Defense’s Office of Inspector General found that the Air Force committed “multiple errors” and that its agents “failed to collect and submit [Kelley’s] fingerprints and final disposition reports” after his court-martial, citing poor training of Air Force security personnel on the relevant procedures.

“The USAF’s failure to submit Kelley’s fingerprints and final disposition information allowed Kelley to pass the federally mandated background checks and to purchase four firearms from Federal Firearms Licensed (FFL) dealers,” the report states. “Kelley used three of those four firearms on November 5, 2017, to kill 26 people and wound 22 others at the First Baptist Church of Sutherland Springs.”

The report found widespread failures to report at multiple military bases.

This trial arrives after years of slow preparations. At a September 2019 hearing, Rodriguez was incensed with the parties’ counsel — upset that the government’s lawyers were dragging their feet in naming the Air Force personnel responsible for reporting deviant airmen to the FBI, and annoyed with the plaintiffs’ voluminous court filings.

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