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DOJ's Sutherland appeal shows Biden administration's 'hypocrisy,' says victims' lawyer

A roadside memorial in honor of the victims of the Sutherland Springs shooting taken on May 5, 2018.
Joey Palacios
Texas Public Radio
A roadside memorial in honor of the victims of the Sutherland Springs shooting.

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This story was updated at 8:05 pm CST with response from DOJ.

The U.S. Justice Department has appealed the $230 million award to victims of the 2017 Sutherland Springs mass shooting that claimed the lives of 26 and injured nearly two dozen others.

Former Airman Devin Kelley should have been barred from purchasing the assault rifle he used in the killings after he was convicted of assaulting his ex-wife and infant stepson. Court testimony proved that the Air Force knew that Kelley was a threat. Documents showed that he had threatened to kill an officer and that Air Force officials issued warnings about him if he was found on base.

“And they released him into the public. And they released him onto that church, while they protected themselves from him, but not the children, not the babies, not the families in that church,” said Jamal Alsaffar, lead attorney for victims in the case.

A federal judge in San Antonio found the Air Force liable in the shooting last July because it didn’t forward the shooter’s military criminal history to the FBI. He ordered the military branch pay $230 million in damages after a separate set of hearings early this year.

The appeal came two weeks after the deadly Uvalde elementary school shooting that claimed the lives of 19 children and two adults. Uvalde galvanized some movement around gun safety reform, background checks, and other measures. It is unclear what could come of the long-stalled issue.

It also prompted major addresses from President Joe Biden who has pushed reform.

Victims’ Lawyer Jamal Alsaffar said the Biden administration’s recent public statements contradict the Justice Department’s appeal.

“It's absolutely hypocritical. It doesn't make sense. It doesn't add up and the only explanation is they the federal government just doesn't want to take accountability for what they did wrong,” Alsaffar said.

The case will now go to the conservative 5th circuit court of appeals, and it could lead to months or years more before victims and their families see the money. Many of these families are still struggling with the medical ramifications of hundreds of bullets fired into the First Baptist Church of Sutherland Springs.

“For the government to try to just run out the clock — for Biden's administration to try to run out the clock — on their lives before they see justice to me. I just don't want to believe that that's true,” said Alsaffar.

Five elderly victims have died awaiting the trials completion.

Justice Department lawyers argued victims and families were owed almost $22 million earlier this year for current and future medical costs. Plaintiffs believed the number was more than 10 times that amount.

In the end, the government offered around $31 million, with plaintiffs arguing for more than $419 million. Judge Xavier Rodriguez, with sole discretion, settled on $230 million.

The Justice Department settled cases of federal liability in two other mass killings including the Parkland School shooting and the Mother Emanuel AME Episcopal church shooting. In Parkland, it awarded victims $127 million, and in the Charleston church shooting, it was $88 million.

"By filing this notice, the government continues its close review of the legal issues presented," said Dena Iverson, a DOJ spokesperson in a prepared statement.

It wasn’t clear what the DOJ will argue in terms of an appeal, and it didn't respond to questions raised in this story.

The court filing only said they would appeal. Alsaffar believed that the only argument they could make is that background checks don’t work and therefore the Air Force’s failure to send the criminal record of the shooter to the FBI would have made no difference.

“We proved that the federal background checks systems work to prevent the shootings, including the Sutherland Springs shooting. So this is really a cynical appeal by the Biden administration,” he said.

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Paul Flahive can be reached at Paul@tpr.org