The DOJ is appealing the ruling that the federal government was responsible for the Sutherland Springs mass shooting

The Justice Department has appealed a ruling that held the government liable for the church shooting in Sutherland Springs, Texas, and awarded the victims’ families $230 million. Critics said a move could give the gun lobby a victory and undermine gun safety laws.

In its appeal brief, filed Monday, law enforcement argued that under Texas law, the U.S. government should not be held responsible for the shooting — it was held 60% liable — despite its failure to report information pertaining to the shooter’s Air Force could have caused Devin Kelley to be court-martialed for failing a background check on a gun purchase.

The Justice Department wrote in its brief that a failed background check would not have stopped Kelley from conducting the shooting and the government could not have known that he intended to continue the attack.

“The United States is committed to preventing the illegal sale of firearms and working to prevent firearms from falling into the wrong hands, including through the use of background checks,” the Justice Department attorneys wrote in the brief. “And the United States unreservedly sympathizes with the victims of Kelley’s attack.

Critics said a successful appeal will ultimately undermine the background check system, hurt the Biden administration’s gun safety law efforts and strengthen the gun lobby. It also ignores the concerns and experiences of survivors and victims’ families, they said.

Jamal Alsaffar, an attorney for the victims, said “Biden’s DOJ walked right into the NRA’s trap” when it brought its arguments that background checks had failed to prevent gun violence before the Fifth Circuit Court of Appeals.

“The DOJ’s appeal prompts the court to rule that a blatant and repeated violation of the law — for more than 30 years — by allowing guns to be used by child abusers and perpetrators of domestic violence does not endanger the safety of the public,” he said in a statement. “The 26 dead and 22 injured in the Sutherland Springs mass shooting disagree.”

26 crosses stand in a field to honor the victims killed in the 2017 mass shooting at the First Baptist Church of Sutherland Springs.Scott Olson/Getty Images

The National Rifle Association welcomed the appeal in an article Monday, noting “the irony of the situation.”

Although the Biden administration had worked closely with gun safety groups, the NRA seemed content when it wrote that the Justice Department seemed willing to potentially challenge the effectiveness of the background check system in court. The gun owners’ group has regularly claimed that the system impedes “the exercise of Second Amendment rights by law-abiding people” and could lead to universal gun registration and eventual confiscation.

The NRA said, “Defending the lawsuit has forced the government to admit uncomfortable truths about gun control limits.”

The White House previously said it could not comment on active litigation.

The government was blamed for the July 2021 shooting for failing to provide records that would have dissuaded Kelley from acquiring the gun he used in the attack.

Kelley, a former aviator, was court-martialed by the Air Force in 2012 for domestic violence. The military department also documented a pattern of threatening behavior that led to their banning him from all US military bases. None of this information was disclosed to the FBI, although reporting the arrest is a federal requirement and would have flagged Kelley in the background check system, preventing him from purchasing a gun from a state-licensed gun dealer.

Dena Iverson, a spokeswoman for the Justice Department, said in a statement that the agency was open to an out-of-court settlement of the case, although it had “sought for months to resolve this case regarding United States liability through mediation” and had not come to an agreement.

“Although the formal arbitration is now complete, we remain open to a settlement of the plaintiffs’ claims and will continue our efforts to do so,” she said.

The Justice Department said it could not disclose terms of a possible settlement and declined to comment when asked about concerns a failed appeal could open other liability cases on similar grounds.

Alsaffar said the families had offered to settle for less than the judge awarded, but efforts to mediate between the two sides had failed. Now the survivors and victims are having to relive the traumatic shooting through an appeal that Alsaffar said could last up to two years.

“The victims and survivors of the worst church shooting in US history have braced themselves for this latest betrayal by their government,” he said. “While expected, the reality of this blow is heartbreaking.”

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