Justice Department appeals a case that found Air Force culpable in Texas church mass shooting

The Air Force had not put the shooter's criminal history into the FBI's background check system, allowing him to purchase the rifle with which he murdered 25 p...

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A 2017 mass shooting incident in Texas is at least partly the fault of the Air Force. That’s what a court ruled because the Air Force had not put the shooter’s criminal history into the FBI’s background check system. That let him purchase the rifle with which he murdered 25 people. Now the Justice Department has filed an appeal of the ruling against the Air Force. Jamal Alsaffar is an attorney for the plaintiffs. He talked about the latest in the case on the Federal Drive with Tom Temin.

Editor’s note: DOJ spokeswoman Dena Iverson responded with the following statement after the time of recording:

The Department filed a notice of appeal of the district court decision finding the United States liable for the tragic shooting in Sutherland Springs on November 5, 2017. The Department will continue to engage in a review of this case while it remains on appeal in the Fifth Circuit, considering all options for reaching a resolution, including possible mediation or settlement. Notice of appeal had to be filed within 60 days of entry of the judgment or appellate review would have been foreclosed. By filing this notice, the government continues its close review of the legal issues presented. The Department is dedicated to doing everything in its power to prevent senseless gun violence that continues to take countless innocent lives.

Interview transcript:

Tom Temin: And just begin with what originally, which court ruled in which trial against the Air Force because sometimes these things spawn multiple trials.

Jamal Alsaffar: No, good question. This this case originated in Sutherland Springs, Texas, which is just a small town not far outside of San Antonio and Austin, Texas. And in originally, this case was filed in San Antonio federal court. And back in 2021, a federal judge in Texas federal court found that the Air Force was responsible for the shooting and for the deaths and the injuries that resulted from the Air Force’s negligence.

Tom Temin: And you say the Air Force was found responsible totally? Or just was it a partial type of thing that they – I mean, the shooter was the one that did the shooting. What was it the Air Force failed to do that got them assigned some of the responsibility?

Jamal Alsaffar: Well in fact, the Air Force and the federal government as a result were found to be 60% responsible, which in Texas means they’re 100% responsible for the damage they caused. And the reason for that was because, first of all, this is a civil lawsuit. And the reason they were found so responsible was because they knew that this shooter was a severe threat to the public. Not only do they know that this shooter had threatened multiple mass shootings while in the Air Force, he was also convicted of beating his wife and fracturing the skull of his 1-year-old child and convicted of those felonies. And in addition to all of that, they knew that he had a long history of sexual assault and rape. And after they convicted him, they shut down and protected every base in the country from him having access to it because they knew he was a mass shooter threat, but they released him to the public without reporting it. And some of your your listeners may not know but when any law enforcement agency, military or otherwise convict a felon, they are required by federal law to report them to the FBI NICS [National Instant Criminal] Background Check System so that those criminals, those felons can never be allowed to purchase weapons. And the Air Force failed to do that. And they failed to do that on a degree that was pretty shocking. And they had dozens and dozens of opportunities to report this guy and didn’t. And so he was just allowed to walk right into a federally licensed firearm store and buy as many weapons as he wanted, which he did, including an AR-15. And, of course, hundreds and hundreds of rounds that he eventually used in this church shooting to kill all those people.

Tom Temin: Sure, and which element of the Air Force is responsible for doing this? Is it the JAG or someone else?

Jamal Alsaffar: Well, just think of the Air Force and really any part of the military is like any local police. So every branch of the military has their law enforcement agencies or cops, if you will. And so in this particular case, on this base, the law enforcement agency on base were responsible for investigating prosecuting and ultimately convicting, including the prosecutors on base, for convicting this guy and ultimately responsible for reporting him to the FBI as well.

Tom Temin: And what did the original court, the federal court that found the Air Force culpable, what is it they ordered the Air Force to do?

Jamal Alsaffar: To compensate these victims for damages that they caused. So 26 people died and were murdered in this little small church and 22 more were severely injured. We’ve got some children who were shot multiple dozens of times that have incurred millions of dollars of medical bills. For example, one 7-year-old boy who has had almost 30 surgeries – 30 – as of today, and will continue to have permanent damage. There are several children, for example, who will have some kind of permanent disfigurement and injury for the rest of their life and require medical care for a long time, including some of the folks in the church. One was paralyzed and other has had his entire, really, abdomen was exploded and taken out, and he’s got all kinds of medical issues as a result of that. So it was not only compensating these families for losing their family members, but also dozens who are really suffering physically with injuries for the rest of their lives.

Tom Temin: We are speaking with Jamal Alsaffar, he’s an attorney with National Trial Law, representing victims of the shooting in 2017 in Sutherland Springs, Texas. And what was your reaction to the Justice Department filing an appeal about a month ago on behalf of the Air Force and what do you understand to be their grounds for the appeal?

Jamal Alsaffar: That’s a great question. Two reactions: Really, really disappointed is probably the biggest reaction and then the other one was angry as well on behalf of these families. And the reason why you’re disappointed is because we went through two separate trials and produce thousands and thousands of hours of testimony, tens of thousands of documents that showed not only that the Air Force was terribly at fault for harboring a known mass shooter, and releasing him to the public without protecting us, and making sure he couldn’t get guns, but on top of all of that, we proved that the Air Force and the entire Department of Defense, in fact, had known for over 30 years that they were failing at an extraordinary rate to report felons to the gun background check system. So tens of thousands of dangerous felons have been allowed to walk the streets and freely purchase weapons because of the federal government’s negligence, and they don’t really dispute that. So at the end of the day, what our trial proved, was what the president has been trying to tell people after all these mass shootings and trying to tell Congress today, and that is that we prove that these gun background checks really work to prevent gun violence, if they’re implemented properly, which they weren’t in our case. But if they’re implemented, they work. And it’s shocking that the same Department of Justice would file on appeal that will require them to undermine the president in the current attempt to pass background checks to prevent gun violence, because the Department of Justice has to argue on appeal that these background checks don’t work. We think they do. We proved in court that they do and we are still hopeful, the Department of Justice will stop undermining the president’s administration and take down the appeal.

Tom Temin: And just to be clear, that is the grounds of their appeal is that the background check system operated by the FBI does not work?

Jamal Alsaffar: Well they tried to prove that at trial. They actually brought the FBI director of the background check system to testify. And that didn’t go well, because ultimately, she did the right thing and testified no, they do work and they work in a remarkably efficient clip. We put millions, we stopped millions of felons from getting guns because of the background check system. That’s actually one of the things the court was bewildered by and even stated in open court is that it was shocking that the government in court was trying to argue that their own background check system really isn’t that efficient, when we know it really is. And that’s what is astonishing about this appeal by the DOJ. We’re on the President’s side, we’re on the administration side. We agree they do work, we proved in a court of law that would have prevented this mass shooting. And then for the DOJ just for legal reasons, trying to file an appeal to win a case and say that they actually don’t work, it’s cynical at best.

Tom Temin: And what is the timeline here? Because meanwhile, the victims are incurring costs, and they have not been compensated by the Air Force to this point, how long does this all take?

Jamal Alsaffar: Well an appeals, an appeal can take years. And we’ve already litigated in this case, and put these families through four years of litigation depositions and now two trials where they’ve had to just rip open their lives and their hearts and their wounds to go through this again, in order to prove their case on behalf of the country. Because really, what they did was they proved that bravely that if you put these background check systems in place, you’re going to save lives, you’re going to prevent mass shootings. So what this is doing is just re-victimizing these mass shooting victims and it’s just disheartening that the Department of Justice is the one doing that. So if they wanted to, they could drag this out for another year or two, but they still have time to do the right thing they really do. Maybe I’m being a little tilting at windmills here but I really they still have time to take down their appeal do the right thing and stand with us and other gun victims and say these background check systems really work and they save lives.

Tom Temin: And by the way, just to detail what happened to the shooter legally in the criminal case?

Jamal Alsaffar: Well, he after the shooting, he fled and was gonna go back he was heading back home where he had hogtied his wife and and locked her in a barn was with their small children. He was headed back there and he was shot and then pursued by police and crashed his car and then killed himself. So he never his form of justice is done. He died shortly after the scene.

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