It has been amply established that one of the worst mass shootings of 2017 was completely preventable. On November 5, Devin Kelley burst into the morning service at First Baptist Church of Sutherland Springs, Texas and killed 26 people before turning his gun on himself.
As we now know, Kelley should have never been able to legally buy the AR-15 clone he used on his rampage. He’d been court-martialed by the Air Force in 2012 for subjecting his wife and infant stepson to horrific abuse. He pleaded guilty and was sentenced to a year in the stockade before receiving a bad conduct discharge. Under federal law, since he’d been convicted of domestic violence, he should have been disqualified from buying a firearm. However, the Air Force never uploaded the case to the National Instant Criminal Background Check System. Had it done so, Kelley would have never bought that gun–and 26 people are likely still alive.
The Air Force has since admitted that Kelley isn’t the only person who slipped through the cracks; dozens more airmen should have been barred from buying guns, but their cases weren’t uploaded to the database. That doesn’t sit well with officials in New York City, Philadelphia, and San Francisco. On Tuesday, they sued the Defense Department for not reporting these cases. They contend that the Pentagon’s failure to report these cases puts their citizens at undue risk, and that the Pentagon hasn’t complied with its own reporting requirements for 20 years or more.
Besides the Defense Department, the three cities are suing Secretary of Defense James Mattis and the secretaries of the three military departments–Army Secretary Mark Esper, Navy Secretary Richard V. Spencer, and Air Force Secretary Heather Wilson–in their official and individual capacities.
Watch more details on this suit from MSNBC here.
NBC News Pentagon correspondent Hans Nichols said that all four services know that they have dropped the ball on reporting felony convictions or their equivalents as required. An internal review by the Air Force found that it only failed to report 14 percent of felony cases to the NICS in a two-year period. Incredibly, that’s the lowest failure rate of the four branches. The Army failed to report 41 percent of cases in the same period, while the Navy and Marines all failed to report over 36 percent.
It’s possible that even those figures may be too low. Jacob Sullum of Reason noted soon after Kelley’s rampage that he should have been “triply disqualified” from buying a gun. The assault on his wife was the equivalent of a misdemeanor conviction for domestic violence, and the assault on his stepson was the equivalent of a felony conviction. Additionally, his bad-conduct discharge was handed down by a general court-martial, the highest level of court-martial in the military justice system–and was therefore discharged under “dishonorable conditions.”
That seemed like a very broad interpretation. However, Sullum told me via Twitter direct message that the Bureau of Alcohol, Tobacco and Firearms considers a discharge under dishonorable conditions to include any discharge handed down by a general court-martial. The federal form that records all firearms transactions confirms this.
As sweeping as this interpretation seems, it does make sense. A conviction at a general court-martial is usually the equivalent of a felony conviction in the civilian courts. That raises the prospect that there may be more cases we don’t know about of former servicemen who have no business being anywhere near firearms.
However, the figures that are known have officials in New York City, Philadelphia, and San Francisco up in arms. They claim they have standing to sue because their police departments catch most of the blowback when a crime is committed by someone who isn’t eligible to buy a gun. New York City mayor Bill de Blasio said that the military’s failure to make timely updates to the database “has led to the loss of innocent lives” by putting guns in the hands of people who have no business having them. Philadelphia mayor Jim Kenney was equally blunt, saying that these records are “absolutely critical” to determining whether someone can legally carry a gun.
The three cities want the defendants held in contempt for not complying with longstanding federal law requiring that this database be updated in a timely manner. They also want a judge to ensure that the Pentagon complies with the reporting requirements. It’s not as if the Pentagon hasn’t had any warning; their own inspector general has lectured them about this failure.
Frankly, this was long overdue. It’s nothing short of disgraceful that 26 people had to die in order for anyone to see the depth of the problem.
(featured image courtesy Camila Ferreira and Mario Duran, available under a Creative Commons BY-SA license)