Federal government asks judge to dismiss lawsuit filed by Sutherland Springs victims

Family members blame USAF failure to report gunman's history in suit

First Baptist Church of Sutherland Springs, Texas (First Baptist Church of Sutherland Springs, Texas via CNN)

SAN ANTONIO – The federal government has asked a judge to dismiss the lawsuits filed by family members of the victims of the Sutherland Springs church shooting, claiming neither the government nor the federal employee who did not prevent the gunman from legally buying the weapon used in the massacre can be held responsible.

The document was filed Friday, three days before the first anniversary of the shooting at First Baptist Church. Twenty-six people died and at least 20 others survived the November 5, 2017 attack during Sunday morning services.

Both sides have agreed that in 2012, Devin Kelley was an active duty airman with the United States Air Force in Holloman Air Force Base in Otero County, New Mexico. He confessed to physically and mentally abusing his wife and stepson and was eventually involuntarily committed to a mental health facility, from which he escaped. He was found in Texas the following day, then placed under confinement on base. Kelley pleaded guilty to two counts of assault and was sentenced to 12-months confinement. Kelley also received a bad-conduct discharge and was stripped of his rank. Kelley was discharged from the USAF in May 2014.

"No employment relationship existed between the USAF and Kelley at the time Kelley perpetrated the mass shooting at the First Baptist Church. Instead, Kelley had been separated from the USAF more than three years earlier. Thus, any duty United States arguably owed to exercise control over Kelley ended once Kelley was discharged from the USAF. Moreover, Kelley did not perpetrate the mass shooting on premises that were controlled by the USAF, and did not use firearms belonging to the USAF to carry it out. Finally, the USAF's failure to report Kelley's conviction, commitment, or bad conduct discharge to the Attorney General constituted nothing more than inaction," the document said.

Those conditions should have kept Kelley from buying firearms under the Gun Control Act of 1968, the document said. The Brady Handgun Violence Prevention Act of 1993 established the National Instant Background Check Systems (NICS), which gun dealers must use to verify a buyer's identity and see that he/she is qualified to purchase a firearm.

"The transmission of misinformation (or the failure to communicate accurate information) to the licensed firearms dealer from whom Kelley purchased firearms is a necessary link in the causal chain that led to the Plaintiffs' injury. In order to bring an action against the United States, the Plaintiffs necessarily must allege that NICS failed to inform a dealer that receipt of the firearm by Kelley would violate Federal law. That communication between NICS and the dealer was the indispensable nexus between any alleged negligence and the injuries alleged. Indeed, the entire NICS apparatus exists solely to communicate information to firearms dealers, which is then relied upon by the dealers when consummating firearms sales," the document said.

Kelley was able to buy firearms in Colorado and Texas -- including the AR-556 rifle he used in the Sutherland Springs shooting. Kelley used one of those guns to kill himself after the crime.

Family members of the victims have alleged that had Kelley's history been in NICS, he would not have been able to buy guns.

The government said the blame lies with someone other than the person who failed to report Kelley's history.

"Obviously, the conduct of an individual who uses a firearm which it is unlawful for him to possess to commit violent crimes (here, to kill 26 people and to wound at least 20 more) is far more culpable than the failure of a federal department or agency to report information to the Attorney General regarding whether it would be unlawful for the individual to receive a firearm, a failure which is not a criminal offense at all," the document said.

As of Monday afternoon, there was no court hearing scheduled for the case, nor had a judge ruled on the request to dismiss the lawsuit.