Background check failure

  • 6 November 2017
  • NormanL
Background check failure

The horrific shooting at a Texas church on Sunday has, almost immediately, become a political argument over gun rights. We have been here before -- regrettably, far too often. In this latest incident, the shooter, who was confronted by an armed citizen, appears to have passed an FBI background check even though he should not have been able to do so. Jacob Sullum writes:

The Air Force says Kelley, an airman who served in logistics readiness at Holloman Air Force Base in New Mexico, was convicted by a court-martial in 2012 of two counts under Article 128 of the Uniform Code of Military Justice, which applies to assault. The victims were his wife, from whom he was subsequently divorced, and their child. Kelley's punishment was 12 months of confinement, a reduction in rank, and a bad-conduct discharge.

As Christian Britschgi noted this morning, the discharge itself would not have prevented Kelley from legally buying a gun, since it fell short of the "dishonorable conditions" specified by federal law. But the same law prohibits the purchase or possession of a gun by anyone who "has been convicted in any court of a misdemeanor crime of domestic violence." Kelley's crimes seem to fit the definition of that phrase, which includes "the use or attempted use of physical force" by a spouse or parent of the victim.

The form that Kelley would have filled out while buying guns from Academy or any other federally licensed dealer asks, "Have you ever been convicted of a misdemeanor crime of domestic violence?" Kelley presumably checked "no," but the FBI's National Instant Criminal Background Check System (NICS), which includes the National Criminal Information Check (NCIC) database, should have flagged the court-martial convictions.

According to a 2001 article in The Military Lawyer, "A court-martialed soldier convicted of a reportable offense entered into the NCIC/NICS will be denied the sale of a firearm." A footnote says reportable offenses include cases involving "a dismissal or punitive discharge" or "conviction of an offense that carries a possible sentence of confinement of one year or more."

In a CNN interview, Texas Gov. Greg Abbott said Kelley had applied for a concealed carry permit but was rejected by the state's Department of Public Safety. "So how was it that he was able to get a gun?" Abbott asked. "By all the facts that we seem to know, he was not supposed to have access to a gun. So how did this happen?"

The criteria for a Texas carry permit are stricter than the federal criteria for gun ownership. People who have been convicted of a Class A or B misdemeanor in the previous five years, for instance, are ineligible for a carry permit. But if the state's background check flagged Kelley's military convictions, why didn't the FBI's?

We do not know yet, but it is a critical question to ask. It's even moreso because one of the now-standard calls in the wake of shootings is for far broader background checks. The Texas incident strongly suggests there may be serious gaps in the existing system. 

Before we consider placing further burdens on the Second Amendment rights of law abiding citizens, let's make sure the processes we have in place actually work as they are supposed to -- and fix them if they are broken. Even then, we must always be aware that those intent on doing harm to others will find a way to do so. 


The latest news is that Kelley was abel to slip through the background check net because of human error:

The Air Force says it failed to follow policies for alerting federal law enforcement about Devin P. Kelley’s violent past, enabling the former service member, who killed at least 26 churchgoers Sunday in Sutherland Springs, Tex., to obtain firearms before the shooting rampage.

Kelley should have been barred from purchasing firearms and body armor because of his domestic violence conviction in 2014 while serving at Holloman Air Force Base in New Mexico. Kelley was sentenced to a year in prison and kicked out of the military with a bad conduct discharge following two counts of domestic abuse against his wife and a child, according to Air Force spokeswoman Ann Stefanek.

“Initial information indicates that Kelley’s domestic violence offense was not entered into the National Criminal Information Center database,” Stefanek said in a statement released Monday. Air Force Secretary Heather Wilson and Chief of Staff Gen. David Goldfein have directed an investigation of Kelley’s case and “relevant policies and procedures,” she said.