Who’s to blame when a mass shooter shouldn’t have been able to buy his guns?
SAN ANTONIO (CN) — A federal judge in San Antonio must determine whether the victims of a mass shooting can hold the federal government responsible for the deaths and injuries caused by a gunman who shouldn’t have passed his federally mandated background check when he bought the murder weapons.
U.S. District Judge Xavier Rodriguez heard closing arguments Tuesday morning, concluding a 10-day bench trial in which the court heard from more than a dozen witnesses and experts who testified about the Nov. 5, 2017 massacre at Sutherland Springs First Baptist Church.
Gunman Devin Kelley killed 26 people and injured 20 more when he shot more than 500 bullets from an AR-15 style semiautomatic rifle and a handgun into the church frequented by his wife Danielle’s family.
Jamal Alsaffar represented the injured parishioners and families of massacred churchgoers in closing arguments.
“No one knew more about Devin Kelley’s potent and extreme danger to the community than the Air Force,” Alsaffar began. “No one had the most time, no one had the most opportunity to protect our community from Devin Kelley than the Air Force.”
Kelley received a bad conduct discharge from the Air Force in 2014 after he pleaded guilty before a court-martial to two counts of domestic abuse after he assaulted his wife at the time, Tessa, and fractured her son’s skull. He served a year in the brig for the crimes.
Though the Air Force eventually barred Kelley from returning to the Holloman Air Force Base he had lived on — citing numerous threats of violence against his leadership and the fact he owned a firearm — these convictions were never reported to the FBI.
“The Air Force was protecting themselves, but not the rest of us,” Alsaffar argued, echoing a similar sentiment Judge Rodriguez expressed at the close of the fourth day of trial.
Kelley had purchased the guns he brought to the shooting from a store with a Federal Firearms License (FFL); these stores are required to run a background check on buyers. If the FBI’s National Instant Criminal Background Check System (NICS) indicates that the customer is disqualified from buying a firearm, then the sale is illegal.
The plaintiffs argue that Kelley would not have been able to purchase the firearms he used in the Sutherland Springs shooting if Air Force personnel had reported the former airman’s felony domestic abuse conviction to the FBI, as required.
The government’s attorneys did not dispute that Kelley’s convictions, had they been reported to the FBI, would have prevented the sporting goods stores he frequented from selling him the weapons. Rather, they questioned whether the Air Force could have foreseen that Kelley would commit the shooting and whether the background check would have stopped him from carrying out the massacre.
“Had the Air Force submitted this information, and had Devin Kelley been denied at all FFLs, would he still have committed this mass shooting? Given what we know about this individual … given his planning, his determination and his obsession, the answer is clearly yes,” said Paul Stern, a trial attorney with the Department of Justice.
Stern reminded the court of evidence and testimony concerning Kelley’s obsession with cults, mass shootings, church shootings and his firearms. Kelley posted many images of himself with his guns on Facebook, and records from his iPhone’s Notes app indicated that he planned the shooting for months.
Stern noted that Kelley ordered two 100-round drum magazines for his rifle and called the store every day, up until the day before the shooting, to see if they had arrived.
A post on Kelley’s Facebook timeline submitted the week before the shooting read: “Remember remember the fifth of November!!” In another post that week, Kelley wrote, “I am the angel of death, no one can stop me.”
The government’s lawyer reminded the court that Kelley had expressed an interest in joining the Bandidos motorcycle gang, that he abused his dog and used synthetic marijuana and other drugs while he was in the Air Force.
“Laws did not stop Devin Kelley. Certainly the NICS system could not have stopped him. He was ‘the angel of death,’” Stern argued.
Stern also claimed that even though the Air Force knew Kelley had committed acts of domestic violence, this would not support an inference that he would later commit a mass shooting.
The government leaned into a narrative that Kelley, who wore a face mask resembling a Marvel Comics anti-hero character named The Punisher during his killing spree, was under self-centered delusions of grandiosity.
On their theory, Kelley saw himself as punishing the “ignorant self-righteous Christians” — as Kelley put it in a Facebook post describing his atheism — at his wife’s family’s church because, the attorney said Kelley thought, the churchgoers refused to believe that his wife had been molested as a child by her adoptive stepfather.
“Devin Kelley believed that Danielle was mocked and ridiculed by the church as she came forward [about her childhood sexual abuse], and as a result … he took that opportunity to rationalize his behavior because he wanted to become a mass murderer,” Stern argued before the court. “It doesn’t matter what was true. It matters what Devin believed.”
In reality, this was not likely the case. On Monday, forensic psychiatrist Jeffrey Metzner aptly described that the court heard “confusing” and “contradictory” testimony during the trial about how many people at the church even knew that Danielle had been sexually abused by her adoptive father, much less disbelieved or ridiculed her.
Stern also enumerated the many ways Texans can legally buy firearms without undergoing a background check, like private sales, gun shows and online classified ads. Kelley could have stolen his father’s guns, for instance.
“He was the angel of death. No one would stop him,” Stern concluded.
In the plaintiffs’ closing argument, Alsaffar had emphasized a story that Danielle shared in her testimony on the first day of trial. When she and her husband had visited a Dick’s Sporting Goods — an FFL gun dealer — to purchase a weapon, Kelley had been turned away.
“They said that since he had a Colorado ID, Dick’s wouldn’t do it. Something about their policy or something,” Danielle testified on April 7.
Alsaffar called this the “test case” for the government’s theories about how else Kelley could have carried out the shooting. Even though Dick’s denied Kelley the sale, he didn’t buy the same weapon from a gun show, ask a family member to buy the weapon on his behalf, buy it online or build a “ghost gun” at home.
“Why? Who knows. He’s paranoid, he’s mentally disturbed, he likes new guns, he only likes those new reliable guns,” Alsaffar said. “What did he do instead? He went to an FFL and he bought … that reliable, new killing machine at an FFL.”
Judge Rodriguez, a George W. Bush appointee, had advised the attorneys after Monday’s testimony that the foreseeability and the causation aspects of this trial were of utmost importance to his ruling.
The parties’ counsel have been directed to submit proposed findings of fact and conclusions of law to the judge, who will now consider the testimony and evidence presented to the court and make a ruling concerning the federal government’s liability.