On Sunday morning, just as the morning service at First Baptist Church of Sutherland Springs, Texas was getting underway, a black-clad gunman walked in armed with an AR-15 clone and started shooting. He wound up killing 26 people before hightailing it out the door. After briefly exchanging fire with a bystander, the gunman fled in his car to the nearby town of New Berlin, where he took his own life.
It never fails that in the aftermath of a mass shooting, it doesn’t take long for something to turn up that adds insult to injury. It turns out that Texas investigators have already turned up enough evidence that indicates Devin Patrick Kelley should not have had a gun.
Texas Governor Greg Abbott sat down with CNN’s Chris Cuomo on Monday morning to discuss the latest developments in the case. Watch here.
Abbott said that based on briefings he’d received from the Texas Department of Public Safety, Kelley had tried to apply for a gun license–only to be turned down. That made Abbott ask the obvious question.
“So how was it that he was able to get a gun? By all the facts that we seem to know, he was not supposed to have access to a gun. So how did this happen?”
Part of the answer came later on Monday. It turns out that Kelley had been denied a license to carry a concealed handgun. However, in one of the many absurdities of Texas gun laws, Kelley did not need a license to buy the AR-15 clone he used in his rampage, or any of the three other long guns found by investigators.
Even so, Abbott and DPS officials believed that Kelley should have still been barred from getting his hands on a gun due to an incident that ended his career in the Air Force. In 2012, Kelley was court-martialed for assaulting his wife and breaking his infant stepson’s skull. He was sentenced to one year in the stockade. He was given a bad conduct discharge in 2014.
On the face of it, that conviction should have barred Kelley from buying any guns at all, whether they were handguns or rifles. Under current federal law, anyone convicted for domestic violence–even if it’s only a misdemeanor–is automatically barred from buying or owning guns. And yet, when Kelley bought that AR-15 clone at an Academy Sports and Outdoors store in San Antonio in April 2016, he checked a box stating that he had no criminal record that would have precluded him from buying or owning a gun. How was that possible?
On Monday, the Air Force took the error. In a statement, it admitted that it failed to enter Kelley’s conviction into the National Criminal Instant Background Check System, the database for federal background checks of potential gun buyers. The Air Force stated that federal law should have barred Kelley from buying or possessing firearms as a result of that conviction, and has ordered a review to see if other domestic cases were properly entered.
For much of Monday, it appeared that Kelley fell through an economy-size loophole in military law. Grover Baxley, a retired judge advocate who now practices military law as a civilian, told The Trace, a news site with ties to Everytown for Gun Safety, that the Uniform Code of Military Justice has no specific article for domestic violence. Baxley added that whenever domestic violence occurs, military prosecutors seek indictments under other articles. Kelley was convicted under Article 128, “Assault.”
Corroborating this, Daily Kos user Wes Morgan noted that military law doesn’t appear to make a distinction between domestic violence and other types of assault. He added that a bad conduct discharge is usually treated as the equivalent of a misdemeanor conviction. As a result, when most civilian jurisdictions looked at Kelley, they would have only seen the equivalent of a misdemeanor assault conviction. In contrast, had Kelley been dishonorably discharged, most civilian jurisdictions would have considered him a convicted felon. He would have also been explicitly banned from buying, owning, or possessing a firearm.
While the Air Force did the right thing in owning up to this massive failure, it is but a preliminary step. The only way in the long run to ensure this never happens again is for Congress to change the UCMJ to explicitly address domestic violence, and stipulate that any conviction will automatically bar you from buying or owning a gun. It’s incomprehensible that no one thought to take this step as we became more aware of the scourge of domestic violence. It shouldn’t have taken 26 people dying to bring this to the forefront.
This is not partisan, and should not be partisan. Congress must make the necessary changes to the UCMJ without delay. The people of Sutherland Springs, and the survivors of the victims, deserve no less.
(featured image courtesy FBC Sunderland’s Facebook)