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.”