Austin at Large: The Things That Slip Our Mind

Xavier Rodriguez used to sit on the Texas Supreme Court. He was abruptly unseated by GOP primary voters in favor of a dude named Steven Wayne Smith, who was MAGA and tea party a decade before those things had names, and who was also named "Smith" and not "Rodriguez," and anyone who says that doesn't or didn't matter to the GOP base is trafficking in falsehood. An appalled President George W. Bush quickly gave Rodriguez a lifetime appointment to the federal bench in San Antonio, where he's been ever since as the formerly eccentric views held by Smith have now become gospel truths to his party's most important voters. Last week, Rodriguez issued what may end up being the most important ruling of his career – awarding $230 million in damages to survivors and families of the victims of the worst mass shooting in Texas history, payable by the U.S. government.

Not Yet A Footnote

On November 5, 2017, a man from New Braunfels named Devin Patrick Kelley, who'd been court-martialed and kicked out of the U.S. Air Force for spousal and child abuse, and was now estranged from his second wife, and living with his parents after being fired from Schlitterbahn as a security guard, but who was still able to lie on his paperwork and purchase a semi-automatic Ruger AR-556 rifle at an Academy Sports in San Antonio, even though his application for a Texas concealed handgun permit had been denied due to his criminal record, because the Air Force had forgotten to notify the FBI that he should be on the list of people who by federal law cannot own guns, took that gun and drove out to the tiny town of Sutherland Springs, and to his estranged wife's church, where in seven-and-a-half minutes he killed 26 people, half of them children, and wounded 22 others, leaving many with life-altering disabilities. He then killed himself.

The inevitable consolidated lawsuits landed in the court of Rodriguez, who in addition to being named Rodriguez was viewed by the paleo-MAGAs like Smith as insufficiently pro-life. That is not how I would describe the man who authored the 185-page decision released this week, allocating damages under Texas law and the Federal Tort Claims Act. It is precisely because life is sacred that his Sutherland Springs ruling is among the most depressing and maddening and saddening things one could ever read.

As the FTCA dictates, Rodriguez last April held the bench trial that determined the U.S. government, and specifically the U.S. Air Force's carelessness, was 60% responsible for the plaintiffs' injuries, and last fall held another bench trial to rule on issues of fact pertaining to the damages both economic and noneconomic. In other words, there's no jury here who's being swayed by slick trial lawyers in need of tort reform; one of the state's more distinguished jurists is saying, himself, that the four corners of the law allow him to make those seven minutes of mayhem cost the U.S. taxpayer enough money to run the entire Texas state government for about three months. With the change in presidential administrations between the shooting and the damage award, the government is unlikely to further shame itself with an appeal of Rodriguez's ruling.

We're Doing This On Purpose

"The Government is partially at fault for the deaths and injuries of these Plaintiffs," he writes. "Its effort to obfuscate its responsibility by attempting to import a no-fault damages model into a case in which the Court has already found liability is wholly unavailing." This is a reference to the defense's proposal that damages be awarded by a special master with whom plaintiffs could file specific claims, like they would with their insurance company, as if they were ravaged by a tornado and not by a human being with about 100 red flags in his life that people could plainly see, wielding a weapon of war it was illegal for him to have, that nobody with any power took care or had the courage to stop him from having. "Ultimately there is no satisfying way to determine the worth of these families' pain," Rodriguez writes, adding that he's looked at other cases for reference: "While this case is unprecedented in kind and scope, these awards have been instructive."

That's on page 11, and for the next 174 pages the horror never stops, as Rodriguez documents his findings of fact – from the losses suffered by the Holcombe family, which lost nine members in the shooting, through dozens of others whose lives were forever changed, all the way down to money to fix the bullet hole in the front door of the house of the folks across the street. I'm going to leave you with just one excerpt for you to contemplate as you live in a state that has spent the last decade basically erasing its restrictions on all types of firearms and whose leaders say the answer to events like Sutherland Springs is more gunfire: "John Porter [Holcombe] was only feet away [and] has not forgotten the sight of his murdered [pregnant] wife surrounded by their [three] dead children ... Every morning, he returns to the church to sit and pray to feel close to his deceased family, and then returns in the evening to close the church. ... John Porter also lost his parents. ... Just as with the loss of his wife and stepchildren, John Porter has struggled to accept the loss of his parents and continues to grieve them: 'And I just – I just – they're gone. I've asked God to let me see them in a dream. And occassionally he has let me see Dad, or talk to Dad, at least." His portion of the damage award: $4.6 million.