Update: Late Monday afternoon, the Air Force admitted that it had failed to enter the court-martial in a federal database that could have prevented Kelley from buying multiple fire arms that he purchased in the past four years.
“The Air Force has launched a review of how the service handled the criminal records of former Airman Devin P. Kelley following his 2012 domestic violence conviction,” the Air Force said in a statement to the New York Times. “Federal law prohibited him from buying or possessing firearms after this conviction.”
It was illegal for Devin Kelley to buy a firearm from a licensed dealer. But he did.
In April 2016—more than a year before he opened fire in Sutherland Springs Baptist Church, killing 26 people—Kelley bought a Ruger AR-556 rifle from an Academy Sports & Outdoors store in San Antonio, a law enforcement official told CNN. According to the official, when Kelley filled out paperwork for a background check, he checked a box indicating he did not have a disqualifying criminal history.
But that wasn’t true. In 2012, Kelley, then a member of the U.S. Air Force, was court-martialed for assaulting his wife and fracturing his baby stepson’s skull, according to NPR. He received a bad-conduct discharge and was sentenced to a year in military prison.
The discharge alone wouldn’t prevent him from buying a firearm. “Federal statute 18.922 bans gun possession by people who have been dishonorably discharged from the military,” says Eugene Volokh, a professor who teaches about firearm regulation policy at the University of California in Los Angeles Law School. Kelley, however, was issued a bad-conduct discharge, which wouldn’t prohibit him from purchasing a gun. But the nature of his crime—a conviction of domestic violence—does make Kelley’s rifle purchase illegal.
In 1996, Congress passed the Lautenberg Amendment, which banned people convicted of domestic violence from owning or using firearms. If Kelley was convicted in civilian court, that law would prevent him from passing a background check. Since he was convicted in military court, the amendment would need to be separately applied to domestic violence cases in the military’s jurisdiction. The Department of Defense outlined that change in Instruction #6400.06, published on August 21, 2007. “Although the [Lautenberg] amendment only applies to misdemeanor crimes of domestic violence, it is DoD policy that a ‘qualifying conviction’ also includes a conviction for a ‘crime of domestic violence’ tried by general or special court-martial which otherwise meets the definition of a misdemeanor crime of domestic violence,” reads the instruction.
That means that Kelley’s domestic violence conviction by military court should have prevented him from passing a federal background check. He should not have been able to purchase a gun from a licensed firearms dealer.
“Something didn’t happen,” says Laura Cutilletta, legal director at the Giffords Law Center. “Either the record wasn’t sent to NICS [the National Instant Criminal Background Check System], or the way that the Department of Defense’s instruction was interpreted, the language wasn’t specific enough. It’s not clear yet.”
It also could be a case of the “Charleston loophole,” suggests Avery Gardiner, chief legal officer at the Brady Center to Prevent Gun Violence. “There’s a gap in federal gun law: If you’re a licensed gun seller and you conduct a background check and don’t get it back from the FBI within three days, you can go ahead and sell the gun,” Gardiner says. That loophole allowed Dylann Roof, who killed nine people at a church in Charleston, South Carolina in 2015, to legally purchase a gun. “It’s also possible the data didn’t get from the military system into the FBI’s database—or it could just be a broken link in the data system,” Gardiner says. “There are a lot of facts that we don’t know yet.” (Neither the NICS nor Academy Sports & Outdoors have responded to requests for comment from Texas Monthly.)
As Gardiner notes, background checks are not required for person-to-person sales of firearms. “Based on what we know now, he should not have been able to buy the gun from a licensed dealer under the law, based on his domestic violence conviction,” Gardiner says. “But tomorrow in Texas, somebody who has been dishonorably discharged and convicted of domestic violence could buy a gun online or a gun auction.”