Sutherland Springs shooting survivors say DOJ appeal damages gun safety laws

Survivors of a 2017 mass shooting at a church in Sutherland Springs, Texas, said they find themselves frustrated, confused and angry as the Department of Justice nears its deadline to appeal the decision that found the federal government liable in the attack that killed 26 of their fellow churchgoers.

Critics of the Justice Department’s potential appeal, including the surviving victims, said the agency’s stated arguments undermine the background check system — a cornerstone of President Joe Biden’s gun policy priorities. The government’s lawyers claimed during the first trial that the gunman could have purchased firearms elsewhere, even if a background check would have prevented him from legally purchasing them from a licensed gun dealer.

The government has until Jan. 9 to file its appeal, in which it could further argue that the background check system — a key defense in the United States to ensure guns are not acquired by criminals or people with a history of violence — does not work, which critics say is a common talking point of the gun lobby. 

The disharmony between the Justice Department’s case and the Biden administration’s gun safety efforts as well as the fears and pressure that a lost appeal could damage gun safety laws are at the crux of the survivors’ acrimony.

“If I had an opportunity to meet President Biden, I would ask him, ‘Why? Why are you doing all this (gun reform) and yet you’re fighting it over here?’” said Juan “Gunny” Macias, a survivor who was shot numerous times in the attack and viewed the president’s gun safety priorities as dissonant with the potential Justice Department appeal.

In July 2021, the government was found liable for failing to provide records that could have kept Devin Kelley from acquiring the weapon he used in the shooting at the First Baptist Church in Sutherland Springs, and it was ordered to pay the more than 80 survivors and victim family members $230 million dollars. The Justice Department has received two extensions to file its appeal brief, now due next week, and is unlikely to receive another one. 

The Justice Department did not respond to a request for comment, but it argued in court that if the U.S. Air Force had followed the law and the shooter was not allowed to purchase a firearm, he could have found a gun another way and committed the same act, according to court transcripts. 

Though it is required by federal law, the Air Force did not report the gunman’s 2012 arrest and court-martial for domestic violence to the FBI. If the military branch had reported his court-martial, it would have appeared on a background check and the former airman, who died by suicide after carrying out the mass shooting, would have been prohibited from purchasing or possessing firearms and ammunition. 

It also did not warn others of a pattern of behavior that led to him being banned from all U.S. military bases. The Air Force was aware of death threats he made against his family, military security forces, police officers and members of his squadron, court records show. 

Macias, a retired Marine, was extensively injured in the shooting. He broke down in tears as he described dealing with regular hernias, lead poisoning from the bullets and the colostomy bag he now must wear that often leaks or falls off, making it difficult to travel in public and ruining “simple pleasures like sitting to eat.”

His voice betrayed a deep sense of anger when he discussed the appeal that involves more than 80 survivors and victims’ family members, and the government’s failure to report the gunman’s violent past. 

“The law is there for a reason,” Macias said. “And if they would’ve followed that law, if they would have done their job, this would have never happened. Twenty-six people would be alive today.”

Jamal Alsaffar, an attorney for the victims, said that the Justice Department had backed out of mediation over the case, and he is preparing for a potential appeal that he believed could damage gun safety laws. It would also put his clients through many more months of reliving the traumatic shooting, he said.

“The gun lobby can’t wait until they file this appeal because then they’ll say, ‘Look, even the Biden (Department of Justice) says they don’t have to follow background check laws because they don’t really work,’” he said.

The intentions of the government’s lawyers may be to point out that the nation’s gun control measures are fairly limited and that there are many loopholes that can be taken advantage of, said Robert Spitzer, a political science professor at the State University of New York College at Cortland, who has authored six books on gun policy. Nevertheless, gun rights supporters would likely celebrate the Justice Department’s success in the case, he added. 

As the Justice Department’s “lawyers are brought in to be good lawyers, not to be good Democrats or Republicans,” he said, they are likely trying to win at all costs without fully considering the political ramifications or how it will affect victims. 

“I assume the Justice Department is taking this position because the lawyers are looking for the best legal avenues that will give them the outcome they want,” he said. “But, sometimes, a good legal strategy is a poor political strategy, and this might be an example of that.”

Hailey McNulty, who survived the shooting as a 15-year-old, seemed to think that might be the case. She was shot five times and recovered, but continues to be physically and emotionally affected after the shooting. Her mother who pushed her under a pew and attempted to protect her was shot in the head and died inches from her during the attack. 

“I was so scared and nervous and I rolled over to try to get the attention of my mom to talk to her, and she wasn’t responding,” she recalled, later breaking down in tears as her grandmother spoke about taking her to the hospital. “And then it clicked to me that she was dead.”

McNulty argued that the Justice Department was cynically subverting background checks to win in court, which did not square with the Biden administration’s policy efforts to protect people from gun violence.

“How do they expect the citizens of the United States to abide by these laws when they see that the ones in charge don’t even have to listen or abide by them themselves?” she said. “That’s what creates chaos. That’s what creates problems like the ones we’re facing.”

For fear of what an appeal could mean for U.S. gun laws, a coalition of 37 gun safety organizations sent a letter to Attorney General Merrick Garland in October about the Justice Department’s intention to appeal. In the letter, they state that the federal government’s “refusal to accept responsibility for its failure in this case actively undermines the very gun safety laws it is required to enforce” and “abandons the Government’s promise to keep communities safe by preventing prohibited persons from purchasing firearms.”

Expanded background checks and red flag laws were a cornerstone of Biden’s landmark gun control legislation that passed this year after the Uvalde shooting in Texas, in which 19 elementary school students and two teachers were killed.

The White House said it could not comment on pending litigation, but it emphasized that Biden’s “commitment to reducing gun violence could not be clearer.”  

“President Biden has championed stronger gun safety laws for decades, from helping to establish the gun background check system and passing an assault weapons ban during his time in the Senate, to signing the strongest gun safety legislation in 30 years at the White House this past summer,” said Olivia Dalton, the White House deputy press secretary, adding that Biden intended to “take additional action to end the scourge of gun violence in America.” 

But those intentions mean little to McNulty, especially as the potential for an appeal no longer looms so far in the distance.