In a case that could have big implications for gun laws here and across the country, a Texas judge will soon decide whether the sporting goods chain where the Sutherland Springs shooter purchased his weapon could be liable for the carnage he caused.
On Thursday, lawyers for both Academy Sports + Outdoors and the families of those hurt and killed in the small central Texas community went head-to-head in what was at times a heated debate. During the nearly three-hour hearing, the attorneys argued over federal and state laws, and whether the store should have refused to sell Devin P. Kelley the gun with which he killed and injured dozens at the First Baptist Church of Sutherland Springs on Nov. 5, 2017.
Judge Karen Pozza said she will issue a ruling by Monday. She could side with Academy’s lawyers and throw out the case, or agree with the Sutherland Springs families and let the case continue to a jury trial. The families are asking for millions in damages for physical and mental anguish, disfigurement and medical expenses.
At the heart of the case is whether the federal definition of a firearm includes the magazine with which it is sold, and if a Colorado law banning the sale of high-capacity magazines applies to Coloradans who buy guns in Texas.
Janet Militello, Academy’s attorney, argued that state and federal laws prohibit the company from being held liable for Kelley’s “evil acts.”
“There was a horrible tragedy,” Militello told Pozza. “Nobody thinks that this should be ignored. But Academy is not responsible.”
A federal law known as the Protection of Lawful Commerce in Arms Act, or PLCAA, shields firearms dealers from being sued if a crime is committed with a weapon they sold. The only exceptions are in cases of negligence or if the dealer knowingly broke federal or state laws when they sold the weapon.
Colorado law bans the sale of any magazine with a capacity of more than 15 rounds. Kelley presented a Colorado ID card when he purchased the firearm, the 30-round magazine included with it and another 30-round magazine, for which he paid cash.
Militello said that even though Kelley was a resident of Colorado, where the 30-round magazine is banned, Texas law allows Academy to sell high-capacity magazines and added that the “magazine” is not included in the definition of “firearm.”
The families’ lawyers, however, argued that federal law prohibits sales to residents from out of state unless the buyer meets them in person and the sale “fully” complies “with the legal conditions of sale in both such States.” Academy was grossly negligent, they said, when they sold Kelley the Ruger AR-556 and high-capacity magazines in April 2016 that he used in the mass killing the next year.
“Academy is the gatekeeper to protect people from buying guns who shouldn’t have them,” attorney Jason Webster said. “When you have a guy who’s 850 miles from his home and paying cash … that kind of raises some flags.”
Turning away from Judge Pozza, Webster then pointed out the Sutherland Springs families present in the courtroom, including the mother of Joann Ward, who died shielding her four children, two of whom were killed, and Dennis and Sara Johnson’s loved ones.
In one hand, Webster clutched an AR-556. In the other, a magazine. One doesn’t work without the other, he said, so arguing that “magazine” and “gun” are two different things is like arguing a car isn’t a car without its wheels.
“If Academy were to have followed the law, that gun would not have been in his hands,” Webster said. “If anybody deserves their day in court, it’s these families here.”
After the hearing, one Johnson family member said he was “on the fence” about how it went. He’d like to be optimistic, but always comes back to the fact that his “Nanny” and “Pa” will still be gone regardless of the outcome.
“It’s never off your mind,” Chris Johnson said. “Nothing’s going to bring them back.”
Several families, including those in court Thursday, are also suing the federal government for negligence. Kelley had a history of domestic violence the U.S. Air Force admitted it failed to report to a federal criminal database, allowing him to purchase his weapons without raising red flags.
Both the lawsuits will test the limits of state and federal gun laws. The state civil case could determine whether firearms dealers must decline to sell certain items depending on the buyer’s place of residence, and the federal suit might be the first time in modern history that victims are able to draw a straight line between a mass shooting and a government mistake they argue could have prevented it.
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