Rounds

News and notes on guns in America

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FBI agents near the First Baptist Church in Sutherland Springs, Texas on November 6. [Jay Janner/Austin American-Statesman via AP]

UPDATE: Clarifying Our Reporting on the Military, Domestic Violence Records, and Gun Background Checks

A year before committing Sunday’s mass shooting in a tight-knit church in Sutherland Springs, Texas, suspect Devin Kelley walked into a sporting goods store to buy a Ruger assault style rifle he should have been banned from owning because of his history of domestic violence. An ATF agent said Kelley had also lawfully bought two more guns found in his car after the massacre.

Yesterday afternoon came an answer to the riddle of why those purchases were allowed to go through: the Air Force, which in 2012 had court martialed Kelley for assaulting his wife and baby stepson, said that it had failed to forward his record to the FBI, which maintains the federal gun background check system. No record on file meant that no flags were raised when Kelley was building his small arsenal.

The Air Force’s disclosure, however, only raised a larger question: How well is the military doing at preventing the batterers employed by its various branches from acquiring civilian firearms? In a statement, the Department of Defense said it was determined to find out, announcing that the Pentagon’s Inspector General will “review relevant policies and procedures to ensure records from other cases across DoD have been reported correctly.”

As The Trace began its own digging, we zeroed in on some data that we interpreted as evidence of a serious shortfall in the military’s sharing of domestic violence records that would disqualify a person from legally owning guns. The most recent numbers posted by the database established specifically to house records of people banned from possessing firearms — the National Instant Criminal Background Indexes, or NICS — show that the Department of Defense, as a whole, had just a single record of a misdemeanor conviction for domestic violence on file. We took that as a possible indication that many abusers from the military may be slipping through the cracks.

Subsequent reporting has taught us that we read more into the NICS numbers than we should have. We’re still chasing the larger story of how good a job the military does at keeping prohibited service members and veterans away from guns. While we do that work, here’s where we got things wrong in yesterday’s post, the original text of which appears below.

When vetting would-be gun buyers at licensed dealers, the FBI consults three databases. NICS is one of them; the other two are the much larger Interstate Identification Index (III), which pools all conviction records, and the National Crime Information Center (NCIC), a repository of justice-related records such as protective orders or open arrest warrants.

Civilian courts are supposed to send domestic violence convictions to the III database, making it the most relevant database for blocking abusers from buying guns.

Sometimes a state can’t enter abusers into III, however: Records in the index, for example, require fingerprints, but not all states fingerprint people convicted of misdemeanor domestic violence. Since misdemeanor domestic violence is one of the offenses that gets you barred from buying guns, those states may enter their misdemeanor-level abusers into NICS instead. A high number of misdemeanor domestic violence convictions in a state’s NICS column is a sign that it’s taking action to address an obstacle to notifying the gun background check system of its proven domestic abusers.

New Mexico, home of the Air Force base where Kelley was serving when he strangled his then wife and beat his stepson, is one such state, with more than 27,000 misdemeanor domestic violence records on file with NICS. New Hampshire, whose population is roughly inline with the Pentagon’s total active duty personnel, is another. It has about 13,000 misdemeanor domestic violence convictions on file with NICS.

But — and here’s where we misstepped — a state with few or no misdemeanor domestic violence convictions on file with NICS is not necessarily failing to block many of its abusers from guns.

That’s because there’s another, more routine way to weed out the abusers among would-be firearms owners: If a state faces no legal or technical obstacles to entering misdemeanor domestic violence convictions into the Interstate Identification Index, and follows a system for consistently marking those records as disqualifying the guilty party from owning guns, then the III database on its own should suffice. A report by the Bureau of Justice Statistics shows that there are a dozen states which follow steps to make it clear whether the name on a domestic violence conviction record in the III index can’t have guns.  

To be sure, there can still be breakdowns. A federal gun ban only applies when the abuser and victim are married, cohabitating, or had a child together; the use of force by the abuser is another legal threshold that must be cleared. On top of which, by statute, gun background check examiners have only three business days to work before a sale automatically goes through. When conviction records in III aren’t clearly labeled or filled out to show that the person is prohibited, abusers can wind up getting guns they’re not supposed to have. A 2016 report by the Government Accountability Office found that the FBI takes seven days to complete 90 percent of firearm denials that involve domestic violence convictions, longer than any other kind of prohibiting record.

How many domestic violence convictions in the III database leave doubts about whether the abuser meets the criteria for a gun ban? How many states that face barriers to filing domestic violence convictions with III never manage to, or bother, get the info into the gun background check system at all? Since the FBI doesn’t produce detailed breakouts of the data in III, it’s impossible to tell.

By the same token, the opacity also means that the number of misdemeanor domestic violence convictions that a state sends to NICS does not, on its own, tell you if it’s doing all it can to ensure that abusers get turned away at the gun shop counter.

That’s also true for records entered into NICS by the U.S. military, which is where we erred yesterday.

Getting to the bottom of how consistently the Pentagon and its constituent armed services banning their domestic abusers from guns is complicated by the fact that in the military’s internal justice system, there are no distinct charges for domestic violence. Instead, those cases are prosecuted under other categories of crimes. After a conviction, the base judge advocate general annotates a report with the label “Crime of Domestic Violence,” which should mark the offender as barred from buying guns. Another wrinkle: Military bases send their domestic violence convictions not to III, as civilian courts do, but to NCIC.

From what we’ve learned so far, the military’s method for compiling the records it sends to NCIC should make it pretty clear whether the service member if the circumstances of the case trigger a gun ban. The problem may be in a failure to ensure that all the relevant records get sent into the FBI’s databases in the first place, as happened (or didn’t) with Kelley’s. 

One way for a member of the military to face an automatic gun ban as a civilian is if he or she is booted from the service via a dishonorable discharge, an offense that gets its own category in NICS. Here, unlike with misdemeanor domestic violence, NICS data disclosures do tell a clear story on their own.

Only a few hundred military cases per year result in dishonorable discharges. Kelley — who attacked his spouse and her child, then broke out of a mental hospital and threatened to sneak guns back into his base and kill his superiors — wasn’t one of them: He was let go for “bad conduct” instead.

We hope that clears things up. Still got questions? Write us [email protected].

Got a tip for our reporters? Here’s how to securely leak to us.

Our original post, as published yesterday: 

The Military Is Reporting Almost No Domestic Abusers to the Main Gun Background Check Database

A year before committing Sunday’s mass shooting at a tight-knit church in Sutherland Springs, Texas, Devin Kelley walked into a sporting goods store and bought a Ruger assault-style rifle that he should have been banned from owning because of his history of domestic violence. An agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives said Kelley had lawfully bought two more guns that were found in his car after the massacre.

In a statement, the Air Force said that Kelley’s records were never reported to the databases on which the FBI’s background check system relies.

The answer may lie in differences between how civilian courts and the U.S. military, in which Kelley had previously served, treat domestic violence, and how each submits abusers’ records for gun background checks.  

While enlisted in the Air Force, Kelley was convicted by a court martial of charges stemming from an assault on his then-wife and young child in 2012 and sentenced to a year in confinement. The offense was the equivalent of the civilian crime of misdemeanor domestic assault — one of the 12 categories of records that automatically bar someone from legal gun possession.

But the military has no distinct charge for domestic violence, notes Grover Baxley, a former judge advocate general who now practices military law as a civilian. “We see this all the time,” Baxley said. “There is no specific domestic violence article.” Instead, military prosecutors charge abusers with other offenses, like assault.

A scan of active records shows that the Department of Defense has just a single misdemeanor conviction for domestic violence on file with the National Criminal Instant Background Check System, or NICS.

Here’s the chart, which also shows that the military has currently submitted zero records for members subject to domestic violence restraining orders, the other category of domestic abuse that gets a civilian barred from buying guns from licensed dealers. (Unlicensed sellers, who in most states do not have to conduct background checks, are a whole separate problem.)

To be clear, the chart above shows the records in NICS as of December 31, 2016; it’s possible that additional domestic violence records submitted earlier by the military to the background check system have since been removed because of successful appeals. But some states with populations in line with the military’s 1.2 million active service members have more domestic violence records currently on file with NICS. New Hampshire, for instance, has filed almost 14,000 records of such convictions. Alaska has 1,348 records of temporary protective orders on file.

The Federal Bureau of Investigation, which maintains the main database of background checks, declined to comment. The Air Force did not respond to a request for additional comment.

Past mass shootings have drawn attention to the shortfalls in states’ reporting of records on which the national system for gun background checks depends. Before the gunman in the Virginia Tech massacre in 2007 was found to have legally purchased pistols despite a disqualifying mental health history, for instance, many states failed to submit psychiatric records to NICS. Several have since caught up, but laggards remain.

With domestic violence, the FBI must contend with both missing records, as well as files that don’t clearly mark the person as subject to a federal gun ban. A 2014 report by the Democratic Party-aligned Center for American Progress found that misdemeanor domestic-violence records reviewed in background checks for gun sales are “often incomplete and require additional investigation.” The authors estimated that only three states — Connecticut, New Hampshire, and New Mexico — submit complete domestic violence records.

The Government Accountability Office reached similar conclusions regarding domestic abusers and gun background checks in a 2016 report.  

Records of misdemeanor domestic violence convictions can also wind up in a second database scanned as part of a gun background check, known as the Interstate Identification Index. A third database consulted by the FBI, the National Crime Information Center, or NCIC, logs protective orders. In its statement, the Air Force said that Kelley’s conviction should have been entered into NCIC, and that the service will perform a review to see why his base failed to do so, and if similar records from other cases have been omitted.

I’m still looking into whether the military sends information on domestic violence to that list. Even if it does, FBI examiners would be left to interpret the records within three business days, after which gun sales go through, under federal law, no matter whether the background check is still ongoing.

There is one way for a member of the military to face an automatic gun ban as a civilian, and that is if he or she is booted from the service through a dishonorable discharge. But only a few hundred military cases per year result in that outcome.

When Kelley was kicked out of the Air Force in 2014, it was through a bad conduct discharge, which on its own does not initiate a gun ban.

“The federal gun laws specifically mention a dishonorable discharge. Not bad conduct,” Baxley said.