Air Force says Sutherland Springs and Academy Sports shooter should be responsible for the mass shootings

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The federal government admitted in a trial Tuesday that the Air Force failed to report the violent past of a gunman who slaughtered 26 people in Sutherland Springs, but the government lawyer argued that the gunman should bear most, if not all, of the responsibility for the dead.

Survivors and families of the victims of the mass shooting have sued the Air Force, and one of their lawyers argued on Tuesday that the government should shoulder most of the responsibility – 65 to 70 percent – for failing to report the domestic violence conviction of disgraced aviator Devin Kelley to a national database that arms dealers check when purchasing firearms.

In closing arguments, government attorney Paul Stern told U.S. District Judge Xavier Rodriguez he didn’t think the Air Force should be held responsible at all in the families’ lawsuit.

If the judge finds Air Force responsibility, Stern said, Kelley, who committed suicide while fleeing the mass shooting of Nov. 5, 2017, at First Baptist Church, should be awarded at least 99% of responsibility and Academy Sports and Outdoors should get “the lion’s share” of the rest for selling Kelley the assault rifle and magazines he used in the massacre.

Neither Kelley nor Academy have been named by the families as defendants in the federal lawsuit, although the Academy has been sued separately in state court, where this case is pending. But the federal government sought to engage the Academy in the prosecution, and Stern argued that the Academy was at fault for selling Kelley the assault rifle and the high-capacity magazines in April 2016.

Stern reiterated the testimony of a federal agent who said the San Antonio Academy violated federal law by selling the items to Kelley while he had a Colorado driver’s license, where high capacity magazines are banned since 2013.

FILE - This undated file photo provided by the Texas Department of Public Safety shows Devin Patrick Kelley.  An autopsy released Thursday, June 28, 2018 by the Travis County Medical Examiner's Office, confirmed that Kelley, who killed more than two dozen people at First Baptist Church in Sutherland Springs, Texas last year, has died from a self-inflicted gunshot wound.  in the head.  (Texas Department of Public Safety via AP, file)

FILE – This undated file photo provided by the Texas Department of Public Safety shows Devin Patrick Kelley. An autopsy released Thursday, June 28, 2018 by the Travis County Medical Examiner’s Office, confirmed that Kelley, who killed more than two dozen people at First Baptist Church in Sutherland Springs, Texas last year, has died from a self-inflicted gunshot wound. in the head. (Texas Department of Public Safety via AP, file)

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Kelley, 26, was kicked out of the Air Force in 2014 with a misconduct discharge after being jailed for a year on a domestic violence conviction in which he beat his first wife and seriously injured his toddler son . He also made threats of mass violence and was investigated, but not convicted, for pointing a gun at his wife’s head and barring Holloman AFB from re-entering the New -Mexico, where he was stationed.

Even though it was necessary, the Air Force never sent Kelley’s conviction information or fingerprints to the National Instant Criminal Background Check System, or NICS, Stern admitted. The conviction would have prevented him from purchasing firearms from any licensed gun dealer, according to established testimony.

But Stern argued that there are laws that protect the government from liability unless certain factors are met and the plaintiffs have failed to overcome these hurdles to prove such things as the predictability of the actions of Kelley.

“Our experts said it was not preventable,” Stern said.

Stern added that Kelley had been planning an attack for months, was obsessed with the mass shootings and her sanity was deteriorating. He also pointed out that a note Kelley took in her iPhone, in part, showed her determination as she said, “I am the angel of death, no one can stop me.” Stern added that Kelley allegedly obtained a gun by other means.

“The laws haven’t stopped Devin Kelley,” Stern said. “Certainly, NICS would not have stopped it. He was the angel of death. No one was going to stop him.

One of the families’ lawyers, Jamal Alsaffar, agreed that Kelley was violent and determined and had mental issues, but he disagreed with the government’s representation. Alsaffar argued that the Air Force knew all of this when Kelley was on duty and that it should be held accountable because it could have foreseen that Kelley could commit a mass shooting.

“Yes, Devin Kelley bears some responsibility,” Alsaffar said. “We think the government supports 65-70% and (Kelley) about 30.”

Alsaffar also urged the judge to read depositions from Holloman officials who were responsible for reporting the conviction or following up to make sure such things were not missed. One of the whistleblowers said he received more training to prepare for giving evidence than to report convictions to the database. Another said he received “discipline” years after leaving the Air Force, with written censorship placed on his military file.

Alsaffar also argued that if the Air Force had properly performed its required monthly checks to detect reporting deficiencies, supervisors would have discovered that the information about Kelley had not been reported and may have corrected it. Stern had played this down, saying supervisors had discretion over what to look for.

Alsaffar told the judge that the Air Force had missed 79 opportunities to resolve Kelley’s case by reporting the conviction and that the failure added to a problem identified in reports by the Federal Inspector General going back 30 years. Kelley is one of more than 7,000 Airmen between 1998 and 2017 whose Air Force failed to report criminal histories to the FBI database.

“The Air Force’s 30-year withdrawal from accepting responsibility must end now,” Alsaffar said.

It will take more than a month for the judge to decide whether the Air Force is responsible. If he finds that this is the case, a separate trial will take place to determine how much he should pay in damages.

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