Devin Patrick Kelley — the 26-year-old New Braunfels resident who on Sunday perpetrated the deadliest mass shooting in Texas history — should not have been able to buy the assault-style rifle he used to kill 26 people at the First Baptist Church in Sutherland Springs, according to gun and military experts.
In 2012, a military court convicted Kelley of assaulting his wife and stepson, sentencing him to one year behind bars and leading to a bad-conduct discharge. But that conviction, which federal law says should have disqualified Kelley from buying firearms, did not stop him from purchasing a Ruger AR-556 at an Academy Sports + Outdoors store in San Antonio in April 2016 with a green light from the FBI’s National Instant Criminal Background Check System.
The Air Force failed to submit Kelley’s criminal record to the FBI and has launched an investigation into how the lapse occurred, The Associated Press reported Monday.
On Oct. 29, Kelley posted a picture of the rifle on Facebook and wrote, “She’s a bad b****.” A week later, dressed in black and wearing a ballistic vest, he turned the weapon on those gathered for Sunday service at First Baptist. He then fled the church while being chased by bystanders, crashing his car and shooting himself.
The massacre was a horrific end to a troubled life for Kelley, who fractured his stepson’s skull in the 2012 incident at Holloman Air Force Base in New Mexico and was later charged with animal cruelty while living in Colorado.
The shooting was motivated by a “domestic situation,” a Texas Department of Public Safety official said. The mother of Kelley’s estranged wife attended the church, although she was not there Sunday. Kelley also had reportedly become an atheist, and on his Facebook page, which has since been deleted, was increasingly hostile to Christianity, The New York Times reported.
Academy Sports + Outdoors said in a statement that Kelley made two firearms purchases from its stores, and both were approved by the background check system.
Fred Milanowski of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives said investigators recovered a rifle that had been dropped by Kelley near the church, along with two additional handguns that were inside his vehicle. Milanowski said Kelley had purchased a total of four guns, one each year since 2014.
Background check questions
From 2010 to 2014, Kelley served in a logistics role at Holloman Air Force Base.
In the 2012 incident, Kelley “assaulted his stepson severely enough that he fractured his skull, and he also assaulted his wife,” Don Christensen, who was the Air Force chief prosecutor, told The New York Times. “He pled to intentionally doing it.”
Geoffrey Corn, a professor of military law at the South Texas College of Law Houston, said that based on the offense of which Kelley was convicted 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.
Kelley reportedly was sentenced to a year’s confinement on the charge, but Corn said he most likely faced a potential sentence of greater than a year, which would trigger the prohibition under federal law.
“I think it is pretty clear that the Air Force … was supposed to have submitted a form indicating he was convicted of Article 128,” Corn said.
He said Kelley’s conviction under military law also should have prohibited him from purchasing body armor.
Former Texas Land Commissioner Jerry Patterson, who as a legislator in 1995 authored the state’s concealed handgun license law, noted that it’s not the first time that failures related to the database factored into a mass shooting.
Dylann Roof, the white supremacist who in 2015 murdered nine people at an African-American church in Charleston, S.C., had a felony drug conviction, and Seung-Hui Cho, who in 2007 killed 32 at Virginia Tech, had been deemed mentally ill by a judge. Both should have failed their backgrounds checks but were able to buy guns anyway.
“What I would suggest is the NICS database is not complete and it’s not updated quickly enough,” Patterson said. In Kelley’s case, he added, “we may very well have a lack of interface between the military convictions and the civilian convictions.”
The federal background check system was established by the 1994 Brady Law, which also banned the manufacture and sale of assault-style weapons like the one Kelley used. The ban expired in 2004, and Congress has not renewed it.
After leaving New Mexico, Kelley lived in a trailer park in Colorado Springs, where in August 2014 he was charged with animal cruelty after an incident in which he was accused of punching and throwing his pit bull puppy.
The misdemeanor case was dismissed, and Kelley moved out soon after, the Times reported.
After returning to Texas, Kelley worked briefly as an unarmed security guard at Schlitterbahn and listed his address as his parents’ $1 million home in New Braunfels.
To become a licensed security guard, Kelley passed a background check administered by the Texas DPS, agency spokesman Tom Vinger said.
“There were no disqualifiers entered into the National Crime Information Center (NCIC) database that would have precluded the suspect from receiving a private security license,” Vinger said in a statement. “Private security background checks include fingerprints, and criminal history checks with the Texas Crime Information Center and the NCIC databases. The suspect cleared that background check when it was run.”
He was fired less than six weeks after starting the job.