Blumenthal Demands Answers and Immediate Reforms from DoD in Wake of Deadly Mass Shooting

[WASHINGTON, DC] – U.S. Senator Richard Blumenthal (D-CT), a member of both the Senate Armed Services Committee and the Senate Judiciary Committee, today demanded the Department of Defense explain a reported lapse in Air Force reporting processes that may have allowed a gunman in Sutherland Springs, Texas, to obtain weapons that killed 26 churchgoers on Sunday. In a letter to Secretary of Defense James Mattis, Blumenthal urged immediate action be taken to prevent potential future tragedies.

The National Instant Criminal Background Check System (NICS) Improvements Amendments Act of 2007 requires federal departments and agencies to report a number of criminal and civil conviction categories to the NICS, including those persons convicted in military court. Under current federal law, the Sutherland Springs shooter, who was convicted of domestic assault charges against his ex-wife and her child, should not have been able to purchase a weapon from a seller subject to background checks. Yesterday following public scrutiny, the Air Force admitted it had failed to report his convictions to NICS.

“Mr. Kelley’s conviction should have been shared with NICS, restricting his ability to possess firearms,” said Blumenthal. “While ongoing investigation will show where Mr. Kelley obtained his firearms, the American people deserve to know why Mr. Kelley’s conviction was not reported to NICS and what immediate measures you will take to ensure the systematic reporting of court-martial indictments and convictions to NICS.”

Current Department of Defense (DoD) procedures do not explicitly identify individuals who are required to be placed in the NICS database. Blumenthal urged DoD to make an immediate correction to this dangerous loophole by amending the notification form provided to the FBI, and creating a joint database to centralize reported convictions. 

Blumenthal’s full letter to Mattis is available for download here, and copied below.

Dear Secretary Mattis:

On Sunday, I joined Americans across the country in watching in horror and grief as the community in Sutherland Springs, Texas, was torn apart by a shooter who killed at least 26 people and wounded at least 20 others in the town’s First Baptist Church.  It was the deadliest mass shooting in modern Texas history. Initial reports about the alleged shooter, Devin Patrick Kelley, have raised troubling questions regarding how he was able to obtain firearms. 

In 2007, Congress passed the NICS Improvement Amendments Act to ensure that all federal departments and agencies share information to help prevent dangerous individuals with a criminal record from obtaining firearms.  Under this law, the Department of Defense has an obligation to share information relevant to the restrictions in 18 U.S.C. §922(g) and (n) on transporting, shipping, or receiving firearms by certain individuals. 

I urge you to take immediate action to ensure that all relevant indictments and convictions in military courts are reported to the Department of Justice in a consistent and timely manner.  Specifically, the Department of Defense should revise DD-Form 2707-1, to ensure that all records of trial explicitly identify individuals subject to 18 U.S.C. §922(g) and that all such records be kept in a joint database to ensure all military services retain and remit these records to the Department of Justice.

The NICS Improvements Amendments Act of 2007 requires federal departments and agencies to report to the National Instant Criminal Background Check System (NICS) “any record of any person demonstrating that the person falls within one of the categories described in [18 U.S.C. §922(g) and (n)].” Although the Department of Defense has a clear obligation to report relevant information to NICS, the Air Force failed to report Mr. Kelley’s convictions to NICS.  The Air Force also acknowledged yesterday that federal law prohibits Mr. Kelley from purchasing a weapon.  The Department of Defense apparently has no system in place ensure the FBI has the necessary information to enter an individual into NICS after an individual is indicted or convicted in a court-martial for offenses that may fall under 18 U.S.C. §922(g) and (n).  Such individuals include anyone who has committed offenses carrying a sentence of imprisonment for more than one year, has committed misdemeanor crimes of domestic violence, and who has been discharged from the Armed Forces under dishonorable conditions.

Devin Patrick Kelley received a bad conduct discharge from the United States Air Force after being convicted in a court-martial for assaulting his wife and step-child and subsequently being imprisoned for 12 months.  Based on a plain reading of 18 U.S.C. §922, the NICS Improvement Amendments Act, and associated case law, Mr. Kelley’s conviction should have been shared with NICS, restricting his ability to possess firearms. While ongoing investigation will show where Mr. Kelley obtained his firearms, the American people deserve to know why Mr. Kelley’s conviction was not reported to NICS and what immediate measures you will take to ensure the systematic reporting of court-martial indictments and convictions to NICS.

I respectfully request a response to the following questions no later than November 20, 2017.

1. What specific information do you provide to the FBI or other units of the Department of Justice regarding indictments or convictions that may impact an individual’s ability to possess or transport firearms?
2. What policies and practices does the Department of Defense have in place to turn over information regarding court-martial indictments or convictions to NICS or other units of the Department of Justice?
3. How does each military service investigate and prosecute domestic violence charges and do these different methods result in uniform charges under the UCMJ that can be matched with the requirements of 18 U.S.C. §922(g)(9)?

Thank you for your attention to this matter.