One line of text in a document released after Sunday’s mass shooting in Texas should have stopped Devin Kelley from buying the guns he is thought to have used in the massacre. A crystal-clear warning on a now infamous, unsent Air Force record showed that Kelley was convicted of domestic violence, which since 1996 has prohibited offenders from buying or owning guns.
Kelley was court-martialed after he choked his first wife and fractured the skull of his infant stepson. Since the military code of justice lacks a specific domestic violence charge, Kelley was charged with assault. But it is Air Force policy to add a clear label to a memorandum called the Report of the Result of Trial, which collects all charges and their dispositions. Here’s Kelley’s report:
The key text is at the top, where letters in the required bold, centered 14-point type, read “Crime of Domestic Violence,” and spell out the actual bit of U.S. legal code — 18 USC 922 (g)(9) – that says such a conviction should prohibit someone from buying a gun.
Like the Air Force, 12 states also add special domestic violence flags or attach additional paperwork when submitting the records of convicted abusers to the gun background check system, according to a 2014 survey by the Bureau of Justice Statistics.
Records of such convictions go into the Interstate Identification Index (for the civilian court system) or the National Crime Information Center Index (for the military). A gun purchaser is vetted against those two databases plus the National Instant Criminal Background Check System database, created just for gun background checks. But the law that prohibits misdemeanor abusers from acquiring guns requires that a case meet certain criteria before a gun ban kicks in, and on their own, conviction records don’t always make it clear if those criteria have been met. States add the aforementioned flags to make such records unmistakable.
Consultants for SEARCH, a nonprofit consulting firm contracted to analyze how states report domestic violence records to the background check system, wrote in a 2016 report that “these flags make it easier for the police, courts, NICS, as well as all interested agencies to see any individual that is technically prohibited from the purchase of a firearm due to a misdemeanor domestic violence case.”
Of course, the fact that Kelley’s record demonstrated clearly that he shouldn’t have had guns was moot: the Air Force never sent the record to the Federal Bureau of Investigation. The report on the disposition of Kelley’s court-martial was written on January 14, 2013. According to a Department of Defense report, a gap in staffing left the Air Force without anyone to process criminal records from August 2012 to January 2013.