The Department of Justice has appealed a verdict that found the government liable for the 2017 shooting at a Sutherland Springs, Texas, church and awarded the victims' families $230 million, a move critics said could hand a victory to the gun lobby and undermine gun safety laws.
In its appeal brief filed Monday, the law enforcement agency argued that under Texas law, the U.S. government should not be held responsible for the shooting — it was found 60% liable — despite failing to report information that could have caused the shooter, Air Force court-martialed Devin Kelley, to fail a background check when purchasing a weapon.
The Justice Department wrote in its brief that a failed background check would not have kept Kelley, from conducting the shooting, and the government could not have known he intended to pursue the attack.
"The United States is committed to preventing illegal firearms transactions and working to keep guns out of the wrong hands, including through the use of background checks," the Justice Department lawyers wrote in the brief. "And the United States sympathizes unreservedly with the victims of Kelley’s attack. But under Texas law, the United States is not legally responsible for the damages caused by that shooting."
Critics said a successful appeal will ultimately undercut the background check system, damage the Biden administration’s gun safety law efforts and bolster the gun lobby. It further ignores the concerns and experience of survivors and victims' families, they said.
Jamal Alsaffar, an attorney for the victims, said “the Biden DOJ walked right into the NRA’s trap” when it took its arguments that background checks would not have prevented gun violence to the Fifth Circuit Court of Appeals.
“The DOJ’s appeal asks the court to hold that flagrantly and repeatedly violating the law — for over 30 years — by allowing child abusing felons and domestic violence offenders’ guns does not risk the safety of the public,” he said in a statement. “The 26 dead and 22 injured at the Sutherland Springs mass shooting disagree.”
The National Rifle Association applauded the appeal in an article Monday, noting “the irony of the situation.”
Though the Biden administration had worked closely with gun safety groups, the NRA seemed pleased as it wrote that the Justice Department appeared ready to potentially challenge the effectiveness of the background check system in court. The gun ownership group has regularly claimed the system burdens “the exercise of Second Amendment rights by law-abiding people” and could lead to universal gun registration and eventual confiscation.
The NRA said “defending the suit has forced the government to admit inconvenient truths about the limitations of gun control.”
The White House previously said it could not comment on active litigation.
The government was found liable for the shooting in July 2021 because it had failed to provide records that could have kept Kelley from acquiring the weapon he used in the attack.
A former airman, Kelley was court-martialed by the Air Force for domestic violence in 2012. The military branch also documented a pattern of threatening behavior that led it to ban him from all U.S. military bases. None of that information was disclosed to the FBI, although reporting the arrest is federally required and would have flagged Kelley in the background check system, preventing him from purchasing a gun from a federally licensed firearms dealer.
Dena Iverson, a Justice Department spokesperson, said in a statement that the agency remained open to settling the case out of court despite engaging “in a months-long effort to resolve this case regarding the United States’ liability through mediation” and failing to come to an agreement.
“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,” she said.
The Justice Department said it could not disclose any terms of a potential settlement and declined to comment when asked whether there were concerns that a failed appeal could open other liability cases on similar grounds.
Alsaffar said that the families offered to settle for less than the judge awarded, but efforts to mediate between the two sides failed. Now the survivors and victims must relive the traumatic shooting through an appeal that Alsaffar said could take as long as two years.
The “victims and survivors of the worst church shooting in U.S. history have been bracing for this latest betrayal by their government,” he said. “While expected, the reality of this blow is heartbreaking.”