Questions Remain on How Texas Shooter Obtained Firearms Despite Domestic Violence Conviction

Military court-martial likely should have disqualified him from gun ownership

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• November 6, 2017 5:05 pm


Government officials have yet to fully explain how the man who murdered dozens of people in a church in Sutherland Springs, Tex., obtained his firearms despite a 2012 domestic violence conviction.

On Sunday morning, 26-year-old Devin P. Kelley entered the First Baptist Church, which his estranged mother-in-law had attended in the past, and opened fire on those inside, killing at least 26 people and wounding many others. As he exited the church, a neighbor (who has yet to be identified) armed with his own firearm engaged him and injured him, causing Kelley to flee the scene. That neighbor and another man, 27-year-old Johnnie Langendorff, chased the gunman as he tried to escape. The gunman eventually ran off the road and was found dead inside his car.

In the gunman's car, police found a number of firearms. During a press conference on Monday morning, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) announced the gunman had purchased his guns through gun dealers and successfully completed background checks in Colorado and Texas over the last several years.

"This specific investigation—we are early in the investigation—we don't have all the documentation yet," said Fred Milanowski, special agent in charge of ATF's Houston bureau. "So, until we can get all the documentation to … examine what his discharge was, exactly what his conviction in the military, we will not have a determination on if this individual was prohibited from possessing or purchasing firearms."

Kelley was court-martialed in 2012, Air Force spokesperson Ann Stefanek told the Washington Free Beacon. He was convicted on two counts under Article 128 UCMJ due to an "assault on his spouse and assault on their child." He was in military prison for 12 months and demoted to the lowest possible rank as a result of the court martial.

"He assaulted his stepson severely enough that he fractured his skull, and he also assaulted his wife," Don Christensen, a retired colonel who was the chief prosecutor for the Air Force, told The New York Times. "He pled to intentionally doing it."

Under federal law, there are a number of different reasons someone can be declared a prohibited person and barred from purchasing or possessing a firearm. Kelley's military conviction raises questions as to why he wasn't declared a prohibited person on multiple fronts. Anyone "convicted in any court of a crime punishable by imprisonment for a term exceeding one year," "who has been discharged from the Armed Forces under dishonorable conditions," or "who has been convicted of a misdemeanor crime of domestic violence" is a prohibited person, according to the ATF.

Furthermore, though Kelley received a bad conduct discharge and not a dishonorable discharge, his court martial and time in military prison could still make him a prohibited person and bar him from purchasing or possessing firearms. "A member of the Armed Forces must answer ‘yes' to 11.b. or 11.c. if charged with an offense that was either referred to a General Court Martial, or at which the member was convicted," the ATF's guidance for how to fill out a background check form reads. "Discharged ‘under dishonorable conditions' means separation from the Armed Forces resulting from a dishonorable discharge or dismissal adjudged by a General Court-Martial. The term does not include any other discharge or separation from the Armed Forces."

The Air Force has not yet clarified to the Free Beacon if Kelley was sentenced to exactly a year in prison or if it was more than a year, nor have they clarified what kind of court-martial process he went through.

Even if Kelley avoided being declared a prohibited person based on his prison sentence or discharge status, he still should have been declared a prohibited person for the domestic violence aspect of his crime. Federal law makes anyone convicted of a domestic violence misdemeanor a prohibited person and therefore barred from purchasing or possessing firearms.

The law defines a domestic violence misdemeanor as any misdemeanor that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim," according to the Department of Justice.

The military and other court systems are supposed to submit records for those who commit crimes that would prohibit them from purchasing or possessing firearms to the Federal Bureau of Investigation's National Instant Criminal Background Check System. This allows the FBI to determine whether someone is prohibited from owning firearms when a check is run through that system at a licensed dealer. The system has been criticized in the past for missing key records, including a mental health record that may have prevented the Virginia Tech shooter from legally purchasing or possessing firearms.

It is unclear if Kelley's court martial records were included in the FBI's system. The Air Force has not yet told the Free Beacon whether or not it submitted those records to the FBI's background check system.

Published under: ATF, Guns, Texas