Today the Air Force admitted that it failed to enter a domestic violence court-martial into a federal database that could have blocked Texas gunman Devin Kelley from buying the rifle that he used to kill 26 people – a revelation that may allow the Air Force to be sued under a tort claim via the Federal Tort Claims Act (FTCA).
Kelley was convicted of domestic assault on his wife and infant stepson — he had cracked the child’s skull. This conviction should have stopped Kelley from legally purchasing the military-style rifle and three other guns he bought in the last four years. But that information was never entered by the Air Force into the federal database for background checks on gun purchasers, the service said.
Kelley opened fire even before he entered the building, unloading bullets into the walls from outside. Then, he entered the church and continued his attack, killing 23 parishioners inside. Two people were killed outside the church, and another person died on the way to the hospital.
Kelley enlisted in the Air Force in 2010 and receiving a bad conduct discharge from service in 2014. During that period, an Air Force spokeswoman told NPR that Kelley was court-martialed for assaulting his spouse and child. Kelley accepted a plea deal, pleading guilty to “intentionally inflicting grievous bodily harm” on the child and assaulting his wife. He was sentenced to one year’s confinement, down from the five-year sentence a conviction could have carried.
Because his conviction was for an act of domestic violence and carried a maximum penalty of more than one year, federal law banned Kelley from possessing firearms. According to a statement published by the Air Force Judge Advocate General’s Corps, “a federal offense for anyone convicted of a misdemeanor crime of domestic violence to ship, transport, possess, or receive firearms or ammunition.”
The information related to Kelley’s court martial and domestic violence offenses were not transmitted by the military to the FBI’s National Instant Check System used to vet prospective gun purchasers, a law enforcement official said Monday. The official said authorities had been attempting to reconcile Kelley’s gun purchases with federal law, which prohibits those with criminal records involving misdemeanor domestic violence from obtaining or owning firearms.
Under terms of a 1996 amendment to the Gun Control Act, known as Lautenberg Amendment, gun purchases would be denied to those who have used force or even attempted to use force against a family member. His conviction should have flagged Kelley as ineligible to buy the weapons, if the FBI had been made aware of it.
But Kelley’s court martial and the underlying domestic violence offenses were not entered by the military to the FBI’s National Instant Check System used to vet prospective gun purchasers, a law enforcement official said Monday.
Under terms of a 1996 amendment to the Gun Control Act, known as Lautenberg Amendment, gun purchases would be denied to those who have used force or even attempted to use force against a family member.
“This clearly fell under federal law, without a doubt,” said Don Christianson, the Air Force’s top prosecutor whose office oversaw Kelley’s Air Force prosecution. “The Air Force is supposed to report the information to FBI. It was possible that it was never reported. It’s possible that somebody in the Air Force just blew it.”
According to federal agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives, Kelley purchased four weapons over the span of four years, at a rate of one gun a year.
The Air Force released a statement today that Heather Wilson, the Air Force secretary, and Gen. David Goldfein, the Air Force chief of staff, had ordered the Air Force inspector general to work with the Pentagon’s inspector general to “conduct a complete review of the Kelley case and relevant policies and procedures.”The Air Force also said that it was looking into whether other convictions had been improperly left unreported. “The service will also conduct a comprehensive review of Air Force databases to ensure records in other cases have been reported correctly,” the statement said.
Victims of the worst mass shooting in Texas history range from just 18 months to 77 years. Authorities have not named the victims of the shooting, waiting until they can first notify families personally.
The negligence by the Air Force in failing to enter Kelley into a federal database exposes the Air Force to claims from victims and their grieving families. This new information may mean that the Air Force can be sued for wrongful death or injury caused by the gunman under the Federal Tort Claims Act (FTCA). When federal employees are tasked with sharing information about dangerous criminals that could prevent tragedies, they should be held accountable.