Devin Patrick Kelley shot and killed 26 people and injured at least 20 more at First Baptist Church in Sutherland Springs, Texas, on November 5, 2017. He shouldn’t have had a gun at all. This time, though, it wasn’t just that gun control legislation’s tragically lacking: Even the systems we do have, like the National Instant Criminal Background Check System, are being undermined from within.
The Pentagon is required by law to report service members' felony-level convictions punishable by more than a year in prison and domestic violence convictions to the Federal Bureau of Investigation (FBI) and the gun background check system. Federal law prohibits anyone with either type of conviction from owning a gun. Kelley should have been banned twice over. But just 30 percent of relevant military convictions are reported—a figure that comes from the Pentagon’s own Inspector General.
Now, New York, Philadelphia, and San Francisco are suing the Department of Defense in federal court, seeking to get the judiciary to force the armed forces and the agency to fulfill reporting requirements. The cities could accomplish this aim by securing a consent decree, or an agreement from the Pentagon to fix its reporting system, to be monitored and enforced by the court.
The cities’ suit against the Pentagon follows two wrongful death claims against the Air Force brought by Claryce Holcombe, who lost her son and eight other members of her family on November 5.
Kelley’s precisely who federal laws are meant to bar from owning guns. During a 2012 court-martial, or trial, Kelley admitted horrific acts of abuse against his then-wife and stepson.
In his 2012 court-martial, Mr. Kelley admitted that he had repeatedly struck, kicked and choked his wife beginning just months into their marriage. He also said he had repeatedly hit his young stepson’s head with his hands, cracking his skull, said Don Christensen, a retired colonel who was the chief prosecutor for the Air Force.
But the Pentagon’s only routinely reporting dishonorable discharges, in effect.
The Department of Defense has reported only one domestic violence case to the federal database for gun purchase background checks, records show. It has reported 11,000 service members to the database, but almost all of them were because of dishonorable discharges, which prohibit gun purchases. Mr. Kelley, after serving 12 months in a Navy brig in California, received a “bad conduct” discharge, which is not by itself an automatic bar to gun purchases.
How bad is the Pentagon’s failure here? As someone who clerked on the military’s highest appeals court, a dishonorable discharge always seemed relatively tough to get. It’s reserved for, say, murder and desertion. Even a “bad conduct” discharge, the milder form of punitive discharge the Pentagon isn’t required to report, is unusual.
It takes a general court-martial to sentence someone to a punitive discharge. In the military, commanding officers usually choose to handle infractions with non-judicial punishments, or NJPs. Although NJPs are meant to be reserved for offenses punishable by less than a year in prison and short of discharge, commanding officers get to exercise discretion. To generalize, offenses usually don’t result in a court-martial unless the offender’s intractable, the defendant wants to go to court, or the offense is extremely serious.
Naturally, our current system’s failures don’t end with the Pentagon’s failure to report. Ever hear of the “boyfriend loophole”? Misdemeanor convictions for domestic violence against dating partners versus spouses generally don’t trigger the reporting requirement. And even if Kelley had been reported for the conviction, he could have purchased a gun from a private dealer—the “gun show loophole.”