This undated photo provided by the Texas Department of Public Safety shows former airman Devin Kelley. (Texas Department of Public Safety)
More than three dozen prominent gun-control groups accused the Justice Department on Thursday of “retraumatizing” survivors of the 2017 mass shooting in Sutherland Springs, Texas, by appealing a lawsuit that found the United States Air Force partially responsible for the attack.
Last year, a U.S. district judge found that the government was “60 percent liable” for the attack because it failed to submit records that should have prevented the shooter from buying guns, among other missteps. A few months later, the judge ordered the government to pay the victims more than $230 million in damages. But the Justice Department appealed the ruling, which has left survivors struggling to pay expensive, ongoing medical bills.
In a letter signed by Brady United Against Gun Violence, March for Our Lives and Everytown for Gun Safety, the organizations said it was “well past time” for the government to take responsibility for its “failures” and “lethal inaction” that led to the deadly 2017 shooting. Twenty-six people were killed and 20 others were wounded when former airman Devin Kelley armed with an AR-15-style rifle opened fire inside the First Baptist Church of Sutherland Springs in November 2017. Kelley died by suicide after the attack.
The groups argued the continued legal battle would undermine the “integrity” of existing gun laws, including the nation’s background check system, and delay justice for a community that continues to suffer “irreparable trauma.”
“The government’s apparent refusal to accept responsibility for its failure in this case actively undermines the very gun safety laws it is required to enforce,” the letter reads. “In seeking this appeal, the government is choosing to prolong the suffering that grieving families and injured survivors will endure.”
The letter comes as a DOJ official confirmed that the parties are in mediation.
During the trial, Justice Department lawyers argued that the Sutherland Springs gunman’s violence was “unforeseeable” and that background checks would not have stopped the massacre. That legal position runs counter to the Biden administration’s efforts to expand background checks as a deterrent to such mass shootings.
The letter was released Thursday morning; the Department of Justice did not immediately respond to a request for comment.
Dozens of victims sued the United States Air Force in 2018 after the branch said it failed to report Kelley’s history of violence, including a 2012 conviction for domestic assault, to the FBI. That conviction, which led to Kelley’s dismissal from the Air Force, should have prevented the former airman from being able to buy the guns he used in the attack.
U.S. District Judge Xavier Rodriguez later found that the Air Force was 60% liable for the shooting, pointing to other details uncovered in the case, including that Air Force officials were aware Kelley had previously researched and threatened a mass shooting and had a history of severe mental health issues that led officials to declare him to be “dangerous” and “a threat.”
According to testimony and evidence in the case, Air Force officials were so alarmed by Kelley’s threats of violence that he was permanently barred not only from the New Mexico air base where he served but also all bases around the country. Yet Air Force officials failed to report his conviction to the FBI background check system or warn others of his potential for violence, a decision that Rodriguez condemned in a July 2021 ruling.
“The trial conclusively established that no other individual — not even Kelley’s own parents or partners — knew as much as the United States about the violence that Devin Kelley had threatened to commit and was capable of committing,” Rodriguez wrote.
In February, Rodriguez ordered the government to pay more than $230 million to 84 victims and survivors. But in June, the Justice Department gave notice that it planned to appeal that judgment, further delaying any final outcome in the case.
Those involved in the case say the appeal has added to the anguish of survivors, who are struggling to pay expensive medical bills related to their debilitating physical injuries and lingering emotional trauma.
Attorneys for the Justice Department’s civil division, which is handling the case, have not yet disclosed their grounds for appeal. But opponents have seized on their court statements that background checks would not have stopped the violence.
“It’s an absurd argument,” said Kris Brown, the president of Brady United Against Gun Violence, who helped organize the letter to Garland. “A working background check system is our greatest defense and will stop these kinds of shootings.”
In recent weeks, the Justice Department appeared to open the door to resolving the case. In an August statement, Dena Iverson, a spokeswoman, said the department would “continue to engage in a review of this case while it remains on appeal in the Fifth Circuit, considering all options for reaching a resolution, including possible mediation or settlement.”
Last month, government attorneys requested and were granted an extension by the appeals court to file their brief outlining their appeal — pushing back the deadline from Oct. 11 to Nov. 11, just days after the fifth anniversary of the attack.
Even as the Justice Department appealed this case, it has settled with other victims of mass shootings over background check errors. In October 2021, the Justice Department agreed to pay $88 million to the families of nine people killed in the 2015 shooting at Emanuel AME Church in Charleston, S.C., to settle claims that background check errors allowed the gunman to buy a weapon. Weeks later, the government agreed to pay $127.5 million to the families of those killed in the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Fla., over claims the FBI failed to act on tips about the gunman. Both cases were settled before they went to trial.
Groups representing families and survivors from Parkland; Newtown, Conn., and other prominent mass shootings over the past decade were among those who signed Thursday’s letter in support of the Sutherland Springs survivors — which mentions those other settled lawsuits.
“Please allow these victims to finally close this horrific chapter of their lives and move forward,” the letter reads. “Please withdraw your appeal. Please deliver justice.”
