S.F. loses bid to sue Pentagon over guns after Texas massacre

San Francisco and other cities can’t show they’re likely to be harmed by the Defense Department’s failure to notify the FBI that some service members had committed acts during their time in the military that should prohibit them from owning guns in civilian life, a federal judge ruled Tuesday in dismissing a suit prompted by a massacre at a Texas church.

San Francisco, Philadelphia and New York City sued the Pentagon and top military officials in December after Devin Kelley, a former member of the Air Force, used an assault rifle to kill 26 people in Sutherland Springs, Texas, before taking his own life. Kelley had been dishonorably discharged from the service in 2014 after being convicted at a court-martial of assaulting his wife and stepson and serving time in a military brig. Both his conviction and the dishonorable discharge should have made him ineligible to buy or possess a gun.

The Air Force admitted that it had failed to report the conviction to the FBI, which would have been required to include Kelley’s name in its nationwide database, preventing him from legally purchasing the rifle. Later, the Pentagon’s inspector general told Congress that the military had failed to tell the FBI about 31 percent of service members’ criminal convictions in 2015-16, and had been lax in its reporting for more than 20 years.

Attorney General Jeff Sessions called the situation “alarming” and ordered the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives, which run the nationwide background-check system jointly, to get noncompliant military branches to turn over their records. In February, CNN reported that the military had disclosed more than 4,000 dishonorably discharged service members to the FBI since the Nov. 5 shootings.

In their suit, the cities said they rely on the FBI’s background checks to approve firearms permits and because of the Defense Department’s omissions, may have allowed sales to individuals who should have been barred from owning guns. They sought court orders requiring thorough record checks by all military branches and monthly reporting under court supervision.

But U.S. District Judge Claude Hilton of Alexandria, Va., said Tuesday that the cities have failed to show that they had been harmed, or would be likely to suffer harm, because of the Defense Department’s alleged violations of law.

In the first place, Hilton said, the cities have no right to the Defense Department information, which under federal law is reported only to the agencies that manage the background-check system. And even if they were legally entitled to the reports, he said, their claim that errors would lead to wrongful gun sales was “too speculative” to show the specific, impending harm needed to proceed with a suit.

In addition, the judge said, a local government may be allowed to sue over a dispute with a federal agency, such as denial of federal funding, but can’t use the courts to launch a “broad programmatic attack” on an agency’s compliance with federal law or seek court supervision to guarantee compliance.

The ruling does not affect separate lawsuits against the Air Force and the Defense Department filed by survivors of Kelley’s shootings and family members of his victims.

City Attorney Dennis Herrera was disappointed by the ruling and may ask an appeals court to overturn it, said spokesman John Coté.

“The bottom line is the Pentagon needs to do a much better job reporting military convictions so that people who shouldn’t have guns aren’t able to buy them, get a concealed permit for them, or have them returned if police confiscate them,” Coté said. “Nothing in the court’s opinion disputes that. Instead, our case was dismissed on a legal technicality.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko