Why federal law should have stopped Devin Kelley from buying guns


Highlights

Devin Patrick Kelley, who killed 26 people in a church near San Antonio, had a military court conviction.

The conviction should gave prevented Kelley from passing a federal background check.

Devin Patrick Kelley shot and killed at least 26 people Sunday at First Baptist Church in Sutherland Springs near San Antonio. His history of violent crime should have prevented him from being able to purchase an assault-style rifle.

Here’s what we know about how the 26-year-old New Braunfels resident was able to purchase the rifle used in the attack:

1. Assault conviction. While in the Air Force, Kelley was court-martialed in 2012 for assaulting his then-wife and stepchild, whose skull was fractured in the incident. After serving a year in military prison, Kelley was discharged for bad conduct.

2. Background check. Kelley in April 2016 purchased a Ruger AR-556 rifle at an Academy Sports + Outdoors in San Antonio. He should have failed a federal background check during that purchase because of his military record, said former Texas Land Commissioner Jerry Patterson, who in 1995 authored Texas’ concealed handgun license law.

The Air Force, however, failed to report Kelley’s criminal record to the FBI, according to the Associated Press.

Geoffrey Corn, a professor of military law at the South Texas College of Law Houston, said that based on the offense Kelley was convicted of in military court — an Article 128 family assault charge — he almost certainly would have fallen under the prohibition against felons purchasing or possessing firearms.

Military courts do not classify offenses as misdemeanors or felonies, but an Article 128 conviction in almost all cases would correspond to a felony. Corn said his conviction under military law also should have prohibited him from purchasing body armor.

3. Systemic failures. The federal background check system also failed to prevent the perpetrators of the mass shootings at Virginia Tech University and the Emanuel African Methodist Church in Charleston from buying guns, Patterson said. The FBI’s National Instant Criminal Background Check System should have stopped the shooters in those incidents from getting guns, although for different reasons: Charleston shooter Dylan Roof had a felony drug conviction, and Virginia Tech shooter Seung-Hui Cho had been deemed mentally ill by a judge.

“What I would suggest is the (National Instant Criminal Background Check System) database is not complete and its not updated quickly enough,” Patterson said. “We may very well have a lack of interface between the military convictions and the civilian convictions.”

4. State license denied. Kelley was denied a Texas handgun license, Gov. Greg Abbott said. However, that denial would not have prevented him from purchasing or carrying the assault weapon. That’s because Texas is essentially a “constitutional carry” state when it comes to “long guns,” meaning people can openly carry assault-style rifles without a special permit.



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