The mistake that allowed Texas mass shooter Devin Kelley to buy guns was not an isolated incident, according to a Tuesday announcement by the Air Force, which has discovered dozens of other times it failed to report convictions to the FBI that would have been enough to deny someone the right to buy a gun.
The Air Force had failed to notify the FBI about Kelley’s assault conviction in military court that should have made him ineligible to buy guns because it was a case of domestic violence.
Kelley was able to purchase two firearms before shooting and killing 26 people in Sutherland Springs, Texas, on Nov. 5. Two Air Force task forces are now reviewing 60,000 other cases dating back to 2002 to see if they were properly submitted to the FBI.
Domestic violence convictions in any court are supposed to disqualify a person from being able to purchase a gun. Federal law requires all law enforcement, including military, to report to the FBI when assault cases involve domestic violence. But the military and FBI do not disclose how often the service branches report domestic violence to the FBI’S National Instant Criminal Background Check System, NICS for short. That makes it impossible to say how many cases – like the Texas shooter’s – are mistakenly left out of the database by military law enforcement officials.
There is only one case in a database known as the NICS Indices that shows someone barred from being able to buy a gun because of domestic violence in the military, according to the most recent data available. It shows the military added 11,000 people into the database because of dishonorable discharges.
The NICS Indices is one of three databases that make up the 17 million names in the NICS system. The other two are the National Crime Information Center, or NCIC, and the Interstate Identification Index. An FBI spokesman said the military reports to all three databases, but would not say how many cases from the military go into the NCIC or III. Publicly available data for the NCIC and III databases lists numbers of people broken down by state, with no field for how many come from the military.
Members of Congress have introduced a number of bills that attempt to improve federal and state reporting of criminal records into the NICS system.
One of the bills, the Fix NICS Act introduced in the House and Senate, would require states and federal agencies, including the Department of Defense, to create plans for uploading information into the background check system.
Just how many records have been submitted by the military would no longer be a mystery. The bill would require agencies to certify how many people forbidden from purchasing guns have been placed into the system. Failure to comply would be punished by withholding bonus pay for senior employees of an agency.
Kevin Boyle, a retired colonel and former military judge advocate, said he’s not surprised that a case like the one in Texas might slip through the cracks.
“There are lapses in a system of hundreds of thousands of people,” Boyle said.
Properly reporting the outcome of a case is not always a priority in the military, he said.
“Once a case is over, the priority is to have that person go to confinement,” he said. “The priority is to move on to the next case, and some of the paperwork gets lost in the shuffle.”
Boyle said part of the problem is that it’s up to the individual military branches to provide enough information about assault cases to help the FBI determine if domestic violence was involved.
The military also does not have a specific charge for domestic assault. “There would be a charge of, for instance, assault,” Boyle said.
Air Force documents show little ambiguity about Kelley’s case. The second line in bold in his court martial document obtained by Scripps News says “Crime of Domestic Violence. 18 USC §922 (g)(9),” referencing part of U.S. law that spells out the prohibition on firearm purchases for anyone convicted of misdemeanor domestic violence. Even without the title, the information in the documents clearly describes domestic violence, saying Kelley beat his wife, kicked her, choked her, pulled her hair and aimed a loaded gun at her. The records state he also hit his step-son in the head “with a force likely to produce death or grievous bodily harm.”
The Air Force says initial information shows Holloman Air Force Base Office of Special Investigations failed to report Kelley’s conviction to the FBI.
The case is now part of a review by the Defense Department’s inspector general examining how all of the branches report criminal convictions into the NICS database.
Sen. Jack Reed, the top Democrat on the Senate Armed Services Committee, said the military’s failure to report the Texas shooter’s domestic assault conviction was not likely an isolated mistake.
“My suspicion is that every service has the same problem,” Reed said. He supports the department-wide review that will also examine whether previous cases have been reported.
“They have to correct the situation,” Reed said. “There could be people just like this who have serious mental health issues, who’ve demonstrated serious tendencies toward violence who should not be allowed to obtain a weapon.”