3 cities sue military over silence
Not reporting crimes lets wrong people get guns, they say
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 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. Their lawsuit 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 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.
Yet according to the lawsuit, the U.S. Air Force failed to submit records in about 14 percent of cases, the U.S. Navy and Marine Corps failed to submit records in 36 percent of cases, and the U.S. Army didn’t submit records in about 41 percent of cases.
“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.
A Pentagon spokesman said Tuesday that he couldn’t comment specifically on the lawsuit.
“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 FBI,” spokesman Tom Crosson said.
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 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 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 — the so-called 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.
Some agreements to revamp law enforcement practices — known as consent decrees — that have been overseen by federal courts have been credited with helping spur marked improvements in police forces in Los Angeles and other cities.
Meanwhile, the Air Force said it has already made changes designed to prevent failures to report convictions in the future. For example, it is now requiring that leaders up the chain of command verify that criminal history reporting requirements have been met in every case. And, additional training on these procedures is being conducted.
Philadelphia in particular has been plagued by gun violence and “relies on this reporting when making the crucial decision whether a license-to-carry applicant should be permitted to carry a firearm,” said Mayor Jim Kenney, who is a Democrat like the mayors of New York and San Francisco.
He continued: “We’re joining in this suit because reporting these records is absolutely critical to those decisions. The background check system only works if it contains the proper records.”
San Francisco City Attorney Dennis Herrera said in a statement that the Department of Defense’s failure to accurately report criminal convictions puts Americans at risk.
“We cannot accept the level of gun violence in our country as ‘just the way it is,’” he said.