DOJ appeals ruling that mostly blames Air Force for Sutherland Springs church shooting

26 people killed, 22 wounded in 2017 shooting at First Baptist Church

SAN ANTONIO – The Department of Justice on Monday appealed a federal court ruling that determined that the US Air Force was mostly to blame for the 2017 shooting at the First Baptist Church of Sutherland Springs that left 26 people dead and 22 wounded.

The ruling in July 2021 by US District Judge Xavier Rodriguez for the Western District of Texas found the Air Force 60% responsible for the harm that happened in the shooting and ordered it to pay more than $230 million to survivors and families of those killed.

Rodriguez concluded the Air Force failed to exercise reasonable care because it did not report a previous assault conviction to the FBI of a former member of that branch, Devin Patrick Kelley, that could have prevented him from purchasing the semiautomatic rifle he purchased in San Antonio and used in the mass shooting. Kelley died from a self-inflicted gunshot wound after two men chased him with firearms of their own as he fled the scene.

DOJ attorneys argued in their filing that Rodriguez made a mistake when he placed more blame on the Air Force than on Kelly himself.

“The attack on innocent victims at the First Baptist Church of Sutherland Springs was an inexpressible tragedy and the United States unequivocally does not seek to excuse the Air Force’s failure to submit Kelley’s fingerprints and record of conviction for inclusion in NICS databases. Nonetheless, under settled Texas and federal law, the United States is not liable for Kelley’s actions, and is certainly not more responsible for those acts than the murderer himself,” DOJ attorneys wrote in court papers. “Even if the United States could be liable, the court erred in apportioning 60% of the responsibility to the United States (20% for line employees and 40% for supervisors), leaving only 40% for Kelley.”

In its filing, DOJ attorneys asked the Fifth Circuit Court of Appeals to hold oral arguments to hear the appeal.

According to a CNN report, victims of the shooting and families who suffered a loss in the incident have previously voiced opposition to the DOJ’s plan to appeal the decision, with an attorney for some of them saying on Monday that the move “dealt a blow to America’s safety.”

Editor’s Note: CNN and the Texas Tribune contributed to this report.

You can read the DOJ’s court filing below:

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David Ibañez has been managing editor of since the website's launch in October 2000.