The Atlanta Journal-Constitution
Pentagon sued over gun database lapses
Many service members’ criminal convictions not reported to FBI.
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 FBI and to the 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 FBI the names of service members convicted of crimes that disqualify them for 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 U.S. history — officials from New York City, Philadelphia and San Francisco are trying to force a change. The 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 1 in 3 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, Texas, 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 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, 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 Skaggs, chief counsel of the Giffords Law Center to Prevent Gun Violence.
The Pentagon had no immediate comment on the lawsuit Tuesday. In the wake of the church massacre, military leaders have acknowledged the severity of their reporting lapses and vowed to improve.
“This is a problem across all the services where we have gaps in reporting criminal activity of people in service,” the Army chief of staff, Gen. Mark A. Milley, said after it emerged that the Texas gunman’s Air Force conviction was never sent to the background-check database.
The Pentagon’s acting inspector general, Glenn A. Fine, told a Senate committee earlier this month that “there’s really no excuse” for the military’s repeated failure to comply with the reporting rules.
But even with bolstered compliance, major loopholes would still remain.
Had Kelley’s conviction been in the background-check database, for example, he still could have purchased a gun in person or online from private sellers, who are not required to run the background check — an exemption known as the “gun show loophole.”
And while federal law calls for domestic violence convictions to be reported, the rules generally exempt the reporting of misdemeanor convictions where the victim is only a dating partner, an exception known as the “boyfriend loophole.”
But the sort of federal monitoring that the lawsuit proposes has had successes, including efforts by the Justice Department to rein in police departments that use discriminatory tactics or excessive force.