Law360 (August 24, 2020, 7:26 PM EDT) — The federal government has urged a Texas federal court to toss a suit from victims’ families and victims over a 2017 church shooting by a former airman, saying it couldn’t have foreseen the event, while the victims argued the U.S. Air Force knew he was dangerous.
The federal government said Friday that its alleged failure to report criminal information about Devin Patrick Kelley to the Federal Bureau of Investigation’s background check system doesn’t make it liable for the 2017 mass shooting at the First Baptist Church in Sutherland Springs, Texas, that killed 26 people and injured at least 20 others.
Even if the U.S. Air Force had reported Kelley’s criminal background to the FBI, preventing him from purchasing a gun from a federal firearms licensee, or FFL, he could have purchased firearms at a gun show or online, according to the brief.
“To suggest that Kelley would not have committed the mass shooting that he had planned for months using weapons to which he already had access or which he could have obtained through non-FFLs is fanciful,” the government said.
The victims of the church shooting and their families sued the federal government in June 2019, arguing that the Air Force allowed Kelley to purchase the firearm he used in the mass shooting by failing to report his violent history to the FBI’s National Instant Criminal Background Check System.
Both sides filed motions on Friday asking the Texas federal court to rule in their favor.
The government also argued that when Congress enacted the Brady Handgun Violence Prevention Act that requires the government to report criminal activity to the FBI’s background check system, lawmakers didn’t authorize lawsuits against the government for wrongdoing related to the system.
In addition, the government requested in a separate motion that 26 individuals’ claims for emotional distress be dismissed, arguing that they weren’t in close proximity to the shooting, nor were they injured.
But the victims and their families contended Friday that the Air Force should have known that Kelley posed a danger, noting that Air Force officials testified during discovery that he threatened to conduct a mass shooting on more than one occasion.
By failing to report Kelley’s criminal background that included being charged for abusing his wife and child, the government “enabled Kelley to perpetrate one of the deadliest mass shootings in American history,” the victims and their families said.
No evidence suggests that Kelley would have tried to obtain firearms from another source if the government had reported Kelley’s criminal background to the FBI, preventing him from purchasing firearms from a federally licensed dealer, according to their Friday brief.
“To speculate that Kelley would have gotten an assault rifle by some other illegal means ignores Kelley’s history of purchasing guns from federally licensed firearms dealers,” the victims and their families said, adding that “the harm caused by Kelley’s mass shooting was a foreseeable result of the government’s failure to exercise reasonable care in undertaking the obligation to report Kelley’s background data into the background-check system.”
Counsel for the victims and their families declined to comment, and counsel for the government did not respond to a request for comment on Monday.
The victims and their families are variously represented by Jason P. Steed of Kilpatrick Townsend & Stockton LLP, Jamal K. Alsaffar and Tom Jacob of Whitehurst Harkness Brees Cheng Alsaffar Higginbotham & Jacob PLLC, April A. Strahan and Robert E. Ammons of The Ammons Law Firm, Daniel J.T. Sciano of Tinsman & Sciano, Daniel D. Barks of Speiser Krause PC, Mark W. Collmer of Collmer Law Firm, Dennis C. Peery and R. Craig Bettis of the Law Offices of Tyler & Peery, Tim Maloney and Paul E. Campolo of Maloney & Campolo LLP, George LeGrand and Stanley Bernstein of LeGrand & Bernstein, Frank Herrera Jr. and Jorge A. Herrera of The Herrera Law Firm Inc., Jason C. Webster of The Webster Law Firm, Catherine Tobin, Robert C. Hilliard and Marion M. Reilly of Hilliard Munoz Gonzales LLP, and Dennis Bentley, Marco Crawford and Thomas J. Henry of the Law Office of Thomas J. Henry.
The government is represented by Joseph H. Hunt, Thomas G. Ward, James G. Touhey Jr., Kristen L. Wilkerson, Steven E. Handler and Paul D. Stern of the U.S. Department of Justice’s Civil Division, and John F. Bash and John F. Paniszczyn of the U.S. Attorney’s Office for the Western District of Texas.
The lead case is Holcombe et al. v. U.S., case number 5:18-cv-00555, in the U.S. District Court for the Western District of Texas.
Original article by By Sarah Martinson on law360.com