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N.Y., S.F., Philly Want Court to Fix DoD's Background Check Reporting

Law enforcement officials continue to investigate the scene of a shooting at the First Baptist Church of Sutherland Springs on Nov. 7, 2017, in Sutherland Springs, Texas. (AP Photo/Eric Gay)

WASHINGTON — Three cities filed a lawsuit against the Defense Department for failures to report information from the military justice system that would disqualify gun purchasers in the National Instant Criminal Background Check System.

Pennsylvania is among the states that block those with dishonorable discharges or certain criminal offenses from buying firearms or acquiring licenses. Philadelphia Mayor Jim Kenney noted in a statement that for years his city “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.”

“We’re joining in this suit because reporting these records is absolutely critical to those decisions,” Kenney said. “The background check system only works if it contains the proper records.”

Devin Kelley, who killed 26 people at the First Baptist Church of Sutherland Springs last month before being pursued by an armed neighbor and killing himself, was convicted in a 2012 court-martial of multiple incidents of assaulting his wife at the time and fracturing his infant stepson’s skull. He was sentenced to 12 months at the Naval Consolidated Brig, Miramar, and was released from service in 2014 under a Bad Conduct Discharge.

Under federal law, Kelley, who bought a Ruger AR-556 in April 2016 from a San Antonio sporting goods store, should have been banned from buying firearms. But the Air Force said Kelley’s domestic violence “was not entered into the National Criminal Information Center database by the Holloman Air Force Base Office of Special Investigations.”

The lawsuit filed in U.S. District Court for the Eastern District of Virginia cites the Texas church massacre. “Had Defendants simply followed the law, that shooter never should have been able to purchase the weapon he used. This suit—brought by three municipalities—seeks narrowly-tailored injunctive relief to make certain that never happens again.”

“This Court need only grant Plaintiffs’ request to compel Defendants to diligently implement, and consistently apply, the unambiguous laws that have been on the books for decades…. This suit therefore seeks judicial intervention—i.e., intervention by an independent and apolitical branch of government, fully familiar with monitoring, and maintaining, compliance with the law. This Court clearly has the authority and the jurisdiction required to remedy these long-standing wrongs.”

The lawsuit states that in 1997 and 2015 the DoD Inspector General “expressly warned Defendants and their predecessors, in writing, that they had serious compliance problems. The Inspector General told the Air Force, for example, just two years ago, that it had failed to report 32% of its disqualifying conviction dispositions to the FBI. Those were all dispositions that undeniably disqualified the individuals in question, like Devin Kelley, from ever purchasing a firearm.”

“Only three weeks ago, the DoD Inspector General released yet another report, dated December 4, 2017, detailing yet again Defendants’ non-compliance with their reporting obligations. Across all the service branches, he reported, fully 31% of all final disposition reports were never provided to the FBI during the period from January 1, 2015 to December 31, 2016,” adds the court document.

The lawsuit argues that the Texas shooting “could have been prevented” and “intervention by this Court is therefore now both necessary and appropriate.”

“The failure of the Department of Defense to fulfill this reporting mandate is longstanding and well documented, dating back two decades to a 1997 Inspector General report,” said Philadelphia Solicitor Sozi Pedro Tulante. “The accuracy and integrity of the federal databases is crucial to Philadelphia’s ability to properly evaluate license to carry applications and protect the public safety.”

New York Mayor Bill de Blasio charged that “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.”

San Francisco City Attorney Dennis Herrera said the DoD’s “failure to fulfill its legal duty and accurately report criminal convictions puts innocent Americans at risk.”

“It is past time to ensure that we’re doing everything we can to keep guns out of the wrong hands,” he said.

The DoD has not commented on the lawsuit.