Inconsistent military domestic violence policies allow troops with criminal histories to buy guns

A 2017 mass shooting at a rural Texas church revealed troubling gaps in how the military responds to violent crime, and advocates say the Pentagon still isn't doing enough to keep people with criminal backgrounds from purchasing firearms.

The gunman in the Sutherland Springs, Texas church shooting — Devin Kelley — was a former member of the Air Force who had been court-martialed in 2012 for domestic violence against his wife and 11 month-old stepson.

But the military didn’t report his conviction to NICS, an FBI system that checks the records of people buying firearms. A federal judge ruled that if the service had done so, Kelley might not have been able to purchase the weapon he used in the church shooting.

The November 5, 2017 shooting killed 26 people, including an unborn child.

Congress later passed a law, the FIX NICS Act of 2018, to compel the Defense Department to improve its records submissions.

“They significantly stepped it up after the 2017 incident,” said Triana McNeil of the Government Accountability Office, which measured the Pentagon’s progress in 2020. “They know what they need to be reporting.”

But despite that surge of NICS entries in the aftermath of the shooting, it's still not clear the Pentagon is reporting everything it should. When McNeil’s report was published, the Pentagon was having trouble tracking how many convictions and other records it put into the system and how many were left out.

“During the time of our review, the Defense Department reported that it was not in compliance with the NICS records submission requirement, in part because it couldn't certify the total number of potentially prohibiting records that it possessed and submitted to databases checked by NICS,” McNeil said.

Advocates said sloppy record-keeping isn't the only challenge the military faces when it comes to keeping guns away from service members who commit domestic violence. Another has to do with how the military responds to domestic violence in the first place.

Lindsay Nichols is the federal policy director at Giffords, a public interest law center that promotes gun control. She said when service members harm their families, the military sometimes convicts them for lesser crimes and omits domestic violence details from the records.

“What came to light in the discussion about Sutherland Springs is there really is this difficulty in getting domestic violence records specifically into NICS," Nichols said. "It's often difficult to look at these records and recognize that it is domestic violence — that it's not just your everyday assault.”

Nichols said it's a complicated problem to solve and requires coordination and training at all different levels of law enforcement and the justice system.

“It requires funding to train people properly, to update protocols so officials can make distinctions [when it comes to domestic violence], to update the databases, to have a field for entering that particular information," Nichols said. "It involves record retention, so that there's actually a record somewhere that says whether or not these people were romantically involved or had a domestic relationship.”

In the military justice system, commanders, not judges, determine what qualifies as a crime under the Uniform Code of Military Justice, the military’s criminal code. They also have a lot of sway over punishments.

Lisa Colella, who directs the military family support organization Healing Household 6, said the Defense Department needs to come up with better instructions for commanders and law enforcement to deal with those offenses.

“Minimal, this offense warrants inclusion in the NICS system, period,” Colella said.

Colella said she’s worried a shooting like Sutherland Springs could happen again. She described a case she worked on last year, in which a military spouse was beaten and needed significant medical attention. The woman reported it, and the Army investigated. But the husband’s charges kept getting reduced until there was no mention of spousal battery.

“By the end of the actual sentencing, it was just simple assault, and battery of a spouse wasn’t even noted,” Colella said. “He went into a pawn shop — something like that that sold weapons — and he bought three new weapons as soon as the case was closed.”

Lindsay Nichols said Defense Department officials need to do a better job looking at the facts in each case to determine if a record represents domestic violence.

“Any official who has information in those papers that says this was a domestic violence incident — that this was a husband and a wife — that official would be under an obligation under the law to make sure it gets entered into NICS,” Nichols said.

Since 2018, the Defense Department has submitted only a few thousand domestic violence records to the NICS system, which both Colella and Nichols said is a low number.

A Pentagon spokesperson said the military is trying to better track service members with a history of threatening behavior at home. She said it's also working on formal guidance to make sure all relevant records get into the NICS database. But the department said that’s not going to happen for at least another year.

Nichols said the stakes are high for the Defense Department to fix the problem. The Supreme Court has ruled that people who use physical force or threaten use of a deadly weapon against someone in their family are not allowed to have guns, no matter how their conviction is labeled.

Various studies have shown that domestic violence is often a precursor to mass shootings.

“It puts everyone at risk, especially the people who are closest to the service members who should have been reported,” Nichols said.

This story was produced by the American Homefront Project, a public media collaboration that reports on American military life and veterans.Funding comes from the Corporation for Public Broadcasting.

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