Cities Sue Over Failure To Report Military Convictions To National Gun Check Database

Three U.S. cities are suing the Federal Government over the failure to properly report military convictions to the national gun background check database.

Three U.S. cities have filed a lawsuit against the Defense Department over the failure to properly report military convictions to the national database used to for background check, a failure that played a prominent role in the mass shooting a church in Texas earlier this year:

Three major cities have filed a lawsuit against the Defense Department for its failure to report many criminal convictions in the military justice system to the Federal Bureau of Investigation and its national gun background-check database.

The Pentagon has for years run afoul of federal laws intended to keep guns out of the hands of felons and domestic abusers by not transmitting to the F.B.I. the names of service members convicted of crimes that disqualify gun ownership.

This is what allowed Devin P. Kelley, who was convicted of domestic assault in the Air Force, to buy at a store the rifle he used to kill 25 people, including a pregnant woman whose fetus also died, at a Texas church in November.

Now, after two decades of serious lapses — and one of the worst mass shootings in American history — officials from New York, Philadelphia and San Francisco are trying to force a change. Their suit would require the Pentagon to submit to federal court monitoring of its compliance with the reporting laws it has broken time and again.

“This failure on behalf of the Department of Defense has led to the loss of innocent lives by putting guns in the hands of criminals and those who wish to cause immeasurable harm,” Mayor Bill de Blasio of New York said.

The cities say they are suing because their police departments regularly access the federal background-check database and rely on it to provide accurate information about who should be prevented from buying guns.

The Pentagon has repeatedly been chided since the 1990s by its own inspector general for woefully failing to comply with the law. In a 2015 report — and another one issued just a few weeks ago — investigators said that nearly one in three court-martial convictions that should have barred defendants from gun purchases had gone unreported by the military.

Having a federal court oversee compliance, the cities in the lawsuit say, would reduce the chance that a tragedy like the massacre in Sutherland Springs, Tex., happens again.

If the lawsuit is successful and the military fails to adhere to a court order to demonstrate compliance with the law, a federal judge could hold the defendants in contempt, lawyers for the plaintiffs say. The lawsuit names as defendants the Defense Department and its secretary, James N. Mattis; the Departments of the Air Force, Army and Navy and their respective secretaries; the directors of the military’s criminal investigative organizations; and the commander of the Navy’s personnel command.

Generally, the military is required to report felony-equivalent court-martial convictions for crimes that are punishable by more than one year in prison, and any convictions for domestic violence. As with those of similar convictions in civilian courts, the records are supposed to block defendants from buying guns.

The military must also report anyone who receives a dishonorable discharge, which precludes gun ownership. Federal law also bans ownership by drug abusers, people subject to certain restraining orders, and mentally ill people.

“I believe the active involvement of the court system will produce the desired results,” said Ken Taber, the lead lawyer for the plaintiffs. “This will impose an outside monitor to make sure that what should have been done for two decades is finally done.”

Another lawyer for the plaintiffs, Adam Skaggs, added that the lawsuit was not seeking a new interpretation of law — merely that a judge be enlisted to help ensure the military’s adherence to existing rules.

“After 20 years of failure, outside monitoring by the courts is clearly necessary to guarantee that the reporting failures that led to the Texas church shooting never happen again,” said Mr. Skaggs, the chief counsel of the Giffords Law Center to Prevent Gun Violence.

“The department continues to work with the services as they review and refine their policies and procedures to ensure qualifying criminal history information is submitted to the F.B.I.,” said Tom Crosson, a Pentagon spokesman. He declined to comment specifically on the lawsuits\

The lawsuit, of course, is rooted in the shooting at a church in a small town in Texas that resulted in the death of twenty-six people back in November. Several days after the shooting, it was reported that the shooter, David Kelly, had previously served in the Air Force. During that time, he was convicted on domestic violence charges after he severely beat his ex-wife and broke the skull of his infant stepson. Additionally, Kelley had served approximately one year in a military prison for the offense before being released from the military. These charges were never properly reported to the national criminal background check system used to verify that people convicted of violent crimes are not allowed to purchase weapons, and we later learned that this was not an isolated incident. Several weeks after the shooting in Texas, it was reported that the Air Force and perhaps other branches of the military had failed to report similar offenses to the national system on an ongoing basis for a number of years. The result of this, of course, is that potentially thousands of violent offenders who should have been denied the ability to purchase a weapon were able to do so because the background check did not show any convictions on their record for violent crimes. It’s unclear at this point just how extensive the failure to report actually reaches, and whether it reaches beyond the Air Force, but at the very least it seems clear that there has been a systemic breakdown in the background check system due to clear failures on the part of the Defense Department to do what the law requires.

It’s worth noting that this lawsuit is separate from claims that the families of the victims of the Texas shooting are making against the Federal Government over the failure to properly report Kelley’s military conviction. Those claims will have to proceed through the normal process one has to follow to make claims against the Federal Government and could take several years to resolve. In this lawsuit, the three cities are seeking some form of court-ordered compliance with things that the law already requires, namely that the relevant Federal agencies and service branches properly report crimes as required by the law. Given the admission by the Federal Government that there have been systemic failures by at least one branch of the military, it seems likely that the cities will prevail and that the Defense Department will have to agree to submit to some form of court monitoring to ensure that it is properly complying with the law. Of course, this won’t be of much help with regard to the potentially thousands of people who have been allowed to purchase weapons they should not have been legally entitled to own.

Here’s a copy of the Complaint:

New York Et Al v. Defense Department Et Al by Doug Mataconis on Scribd

FILED UNDER: Crime, Guns and Gun Control, Law and the Courts, Military Affairs, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. MBunge says:
  2. Paul L. says:

    The corrupt cities of New York, Philadelphia and San Francisco that defend and hide their own police misconduct have no standing as the TEXAS shooting has nothing to do with them.




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  3. Andy says:

    The main problem is that the UCMJ does not have an offense directly related to domestic violence. As the Trace, who originally broke the story, explains in an update:

    Getting to the bottom of how consistently the Pentagon and its constituent armed services banning their domestic abusers from guns is complicated by the fact that in the military’s internal justice system, there are no distinct charges for domestic violence. Instead, those cases are prosecuted under other categories of crimes. After a conviction, the base judge advocate general annotates a report with the label “Crime of Domestic Violence,” which should mark the offender as barred from buying guns. Another wrinkle: Military bases send their domestic violence convictions not to III, as civilian courts do, but to NCIC.

    From what we’ve learned so far, the military’s method for compiling the records it sends to NCIC should make it pretty clear whether the service member if the circumstances of the case trigger a gun ban. The problem may be in a failure to ensure that all the relevant records get sent into the FBI’s databases in the first place, as happened (or didn’t) with Kelley’s.

    Read the whole thing.

    There are other problems too. This is actually a complicated issue and isn’t merely a failure to report what should have been reported. The entire background check system is hopelessly complicated and should be reformed, but that’s admittedly hard to do with our decentralized criminal and legal system.




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  4. Franklin says:

    @Paul L.: Um, Paul, they’re trying to prevent future mass shootings, not litigate the incident in Texas. Glad I could help ya.




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  5. Franklin says:

    @MBunge: That’s some source you got there. Sorry, not clicking on it.




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  6. Tyrell says:

    @Andy: “hopelessly complicated” That is certainly true. There are more twists, turns, blind alleys, bureaucratic webs, and catch 22’s than a Byzantine maze concerning the rules on dealing with medical and psychological files. And consider also the Hippo laws that the doctors and hospitals must follow. That is if they can even understand them. And that is a tall order.




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  7. KM says:

    Of course, this won’t be of much help with regard to the potentially thousands of people who have been allowed to purchase weapons they should not have been legally entitled to own.

    Procedural question on this: if it turns out person A purchased a gun in what appeared to be a legal transaction that was in reality illegal due to something like this, does the government have the right to seize those weapons? Barring any obvious lie or deceit from the purchaser (who is technically the only one with information that should disqualify them), does the transaction remain legal or are those firearms forfeit? Do punitive measures get invoked? I really can’t see punishing the seller who – for all intents and purposes – did their due diligence as it was the database that failed.

    Meta question: If the government went hunting for these people who legally shouldn’t have these weapons, does it count as the “the gubmints’ comin’ for your guns!!!” moment we’ve been hearing about for so long?




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  8. Mikey says:

    @Tyrell:

    And consider also the Hippo laws that the doctors and hospitals must follow.

    THESE INTELLIGENT LAW-MAKING HIPPOS WILL TRAMPLE US ALL!




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  9. SKI says:

    @Tyrell:

    And consider also the Hippo laws that the doctors and hospitals must follow. That is if they can even understand them. And that is a tall order.

    I presume you mean HIPAA abs specifically the regulations that require medical professionals to keep their patients’ health information private. It isn’t a particularly complicated issue. We train new staff on it every other week. Bottom line is that (a) medical records belong to the patient, not the practice, hospital or insurance company, (b) keep the information private and secured, using only the minimum amount necessary to accomplish the job and (c) report any inappropriate access, use or disclosure.




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