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Sutherland Springs victims’ lawyer calls government offer ‘inhumane, shocking’

The playground at the site of a shooting at the First Baptist Church of Sutherland Springs, Texas, U.S. November 6, 2017. REUTERS/Rick Wilking
The playground at the site of a shooting at the First Baptist Church of Sutherland Springs, Texas, U.S. November 6, 2017. REUTERS/Rick Wilking

Four years ago, a man kicked out of the Air Force perpetrated one of the deadliest shootings in Texas history.

Former Airman Devin Patrick Kelley fired hundreds of rounds into the First Baptist Church of Sutherland Springs — a small town 40 minutes east of San Antonio. Twenty-six people were killed and nearly two dozen were injured.

The government was found liable this summer for mistakes it made that could have prevented the shooter from purchasing the guns he used.

Related: Judge rules US Air Force largely responsible for Sutherland Springs Shooting

Now, a federal judge will decide what is owed to survivors.

After weeks of expert testimony in damages inflicted by Kelley, Judge Xavier Rodriguez asked both sides earlier this month to give him new estimates on what families were owed by the government.

Presumably, numbers closer together would make his job of putting a dollar figure on the horrific tragedy easier. But the estimates were miles apart, with the government saying it owed $31 million and the victims seeking more than $419 million for the events of Nov. 5, 2017.

Rodriguez questioned lawyers on both sides, seeking to understand their calculations. At one point, Rodriguez said he wished that the trial had a jury and was decided by a dozen people rather than a single man — but the Federal Tort Claims Act offers no right to a jury trial.

One lawyer for the plaintiffs, Dan Sciano, said in court he would have expected a larger award from a jury. In his calculation, he said he was taking into account the conservative nature of judges and the potential for an appeal to the conservative U.S. 5th Circuit Court of Appeals.

“I’m gonna ask for less in this case than I have ever in 40 years,” he told the judge.

Jamal Alsaffar, an attorney for the victims, said the government’s offer didn’t align with recent settlements in the Parkland, Florida school shooting ($130 million) or in the Charleston church shooting ($88 million) — numbers that influenced what he and other victims' lawyers were asking for.

“The U.S. government has decided to settle two other shooting cases in which their culpability was far less than what they did here,” he said.

In his closing arguments, he said the figure proposed by the federal government told him that it was “never really serious. They were never interested in doing the right thing.”

He called the government’s estimate “shocking” and “inhumane.”

Much of the arguments centered on what constituted mental anguish and how it was valued.

Victims lawyers again detailed the catastrophic damage done to families who saw children killed, a 9-year-old who saw her mother and two sisters murdered in front of her.

“She had to suffer the remains of the blood from her family splattered all over her body,” Alsaffar said in court. “She was found shaking in a corner when the first responders finally got to her. What did the government value and argue to you that that recovery is worth? Total for all of the family that she lost — $100,000.”

The site of a shooting at the First Baptist Church of Sutherland Springs, Texas, U.S. November 6, 2017. REUTERS/Rick Wilking
The site of a shooting at the First Baptist Church of Sutherland Springs, Texas, U.S. November 6, 2017. REUTERS/Rick Wilking

Kelley fired hundreds of rounds into the 100-year-old building from outside, before entering and targeting people individually. Dressed in all black tactical gear with a mask, he went pew to pew and one lawyer in the trial said the image is still burned into victims minds, with some waking up from violent nightmares weekly and surviving children referring to Kelley as “the monster.”

The government defended its lower number, arguing that it was fair and accurate and that emotion needed to be taken out of the determination. Attorney James Dingivan asked the government to not be punitive in its award, saying the law laid out making compensatory payments.

The amount Judge Rodriguez decides to award will set a precedent in the district, but the Sutherland Springs trial has already had an impact nationwide. The case highlighted an egregious and systemic problem. The Air force was failing to turn over the criminal records of its service members to the FBI. Had they, it is unlikely Kelley would have been able to purchase the guns he used in the shooting.

“When the Secretary of the Air Force, Heather Wilson, raised her hand and said, ‘we made a mistake,’ they searched all their felony records and issued a press release that said they had missed thousands of felons that had gone out,” said Justin Demerath, a lawyer for the victims. “We have never learned how many of those thousands of felons were allowed to buy a gun illegally, nor what kind of gun crimes are committed with those guns.”

The Military Desk at Texas Public Radio is made possible in part by North Park Lincoln and Rise Recovery.

A Defense Department review found the problem extended across the military. It noted in 2015, the Air Force and the Navy failed to turn over criminal records around 30% of the time.

Legislation co-authored by Texas Sen. John Cornyn called the “Fix NICS” Act of 2017 was passed to address the failures.

The result in this case could spur others.

“Assuming that some percentage of those failures also resulted in homicides, then moving forward, we would expect to see more of these cases filed if this was successful,” said Fred Smith Jr., associate professor at Emory University School of Law.

The judge is expected to make a ruling on financial settlements in a few weeks.

But it isn’t clear the federal government will accept Rodriguez’s original verdict in the summer that found the Air Force liable, and it may still appeal that decision.

Alsaffar said the victims' families hope the Biden administration won’t go down that road.

“This is the federal government of the United States who made this mistake and caused it,” he told TPR in an earlier interview. "It's an opportunity to put their money where their mouth is when they say we are against gun violence. We know that these laws matter — that these victims should have a say. And this is presenting the opportunity for them to do that.”

If the federal government does appeal, Alsaffar said they are ready to keep fighting for accountability.

TPR's Carson Frame contributed to this report.

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Paul Flahive can be reached at Paul@tpr.org