Updated 6 p.m.
The government has filed a motion to dismiss a lawsuit from a family who lost nine of its members in the Sutherland Springs shooting.
In the motion filed Friday, the government claims it cannot be held liable for acts committed by a third party, claiming it retains sovereign immunity due to the jurisdiction where the shooting took place.
"Texas generally imposes no actionable duty on a private person to protect another from a third party’s criminal acts," the motion states.
It also argued that the Brady Handgun Violence Prevention Act does not allow federal employees to be held liable for failing to prevent the sale of a firearm to a person prohibited by law from receiving it. In this case, the Defense Department cannot be held liable for failure to notify the FBI that some service members had committed acts during their time in the military.
After the Sutherland Springs church shooting last year, the Air Force admitted that it didn’t enter gunman Devin Kelley’s criminal history into the FBI’s background check system — a lapse that might have helped him purchase a firearm.
Joe and Claryce Holcombe, members of a family that lost nine in the shooting, filed a wrongful death claim against the Air Force in November of 2017. They are asking for $25 million in damages. The government has until Friday to file a motion to dismiss the Holcombe’s lawsuit.
Joe Holcombe told the San Antonio TV station KSAT that his goal was to force accountability — and, hopefully, save lives.
“We want to discipline the Air Force so that something like this is not going to happen again," he said.
Since then, more than 60 other people have submitted claims — either for the death of a family member or injuries sustained— during the Sutherland Springs shooting. The cases are being consolidated before a U.S District Court judge in San Antonio.
"This is a unique case because the U.S government ... has already done a substantial investigation into what happened," said April Strahan, one of the lead lawyers representing the Holcombe family.
The shooter — Devin Kelley — spent several rocky years in the Air Force, including an escape from a New Mexico psychiatric hospital and a court-martial conviction for domestic assault that resulted in the fracture of his stepson’s skull.
Because of his crime, Kelley was legally barred from buying guns and ammunition.
Strahan cites published reports from the Defense Department’s inspector general dating back to 1997. They found that the military branches consistently failed to input crime data about service members. In 2015, the Air Force failed about 14 percent of the time.
Jamal Alsaffar also represents the Holcombes. He said they are frustrated that the government has admitted fault but, at the same time, plans to file a motion to dismiss their case.
"This is difficult to deal with," he said. "The reality that they've watched on their television screens, and they've read in numerous newspaper accounts, is the heads of these departments, the secretary of the Air Force state under oath, 'We made a big mistake and this was our fault and we should never have let this happen and we did.' "
Even with these admissions, it's really difficult to sue the federal government.
Gerald Treece, professor of constitutional law at South Texas College of Law Houston, said the government can claim immunity in many cases.
"If I was the government and knew that they couldn't sue me under sovereign immunity, you know, 'We killed Cock Robin. We were on the Kennedy assassination.' Because they're immune," he said.
He said that even if the Holcombes’ lawyers can prove the Air Force was negligent, they still have to demonstrate cause and effect.
“The argument that's being made here by these claims is the fact that if, in fact, the Air Force had not been negligent, they would've reported this," he said, "and somehow people who are hurt wouldn't be hurt or killed. That's sort of a causation problem in the law."
He said people can purchase guns at gun shows in Texas without having to clear a background check.
"I'm not excusing the military. I'm not excusing the mistake that was made," he said. "But at the same time, if that was the only way a person could get a firearm, that'd be one thing. But there are other ways to get it."
Treece said the Holcombes’ best bet may be to settle out of court. When asked about the status of the case, a spokesperson for the Air Force said she could not comment on pending litigation.
UPDATE: This story has been updated with the government's motion to dismiss.