Washington – Texas shooter Devin Kelly is a prime example of a failure of the the existing gun background check system, and his killing spree on Sunday may bring one small reform.
Kelly, who killed at least 26 people in a small church near San Antonio, should not have been able to purchase firearms under a provision of the Brady Bill, the last major federal gun control law, which was enacted in 1993.
Sen. Chris Murphy, D-Conn., says he has a commitment from a key GOP leader to work toward a bipartisan fix to the law that should have prevented Kelly from buying the guns he may have used in his attack.
The Brady Bill established that those who purchase guns at retail stores and gun shops must submit to an FBI background check. The FBI submits information about the prospective purchaser to the National Instant Criminal Background Check System, or NICS.
The system prevents the sale of firearms to a number of people, including those convicted of a crime or misdemeanor punishable of more than one year in prison, those with misdemeanor convictions for abusing a live-in significant other or child and those who are involuntarily committed to a mental institution. A gun purchase can be completed if the NICS check does not identify any problem, or the system does not respond within three business days.
Police reports released Tuesday show that Kelly escaped from a mental health facility in 2012 after he was caught sneaking guns onto an Air Force base and “attempting to carry out death threats” made against military superiors.
The report also said officers with the El Paso, Texas, police were dispatched to a bus terminal after Kelly escaped from a behavioral facility about seven miles away in New Mexico. Officers said Kelly was “a danger to himself and others” at the time of his escape and that he “was also facing military criminal charges.”
Kelly also spent 12 months in a military prison for assaulting his then-wife and stepson and received a bad-conduct discharge.
At least some of the gun purchases Kelly made were subject to FBI background checks. The Air Force has confirmed it failed to submit the shooter’s criminal history to the FBI, as required by Pentagon rules, a move that would have prevented Kelly from purchasing some of his guns.
Murphy said Sen. John Cornyn,R-Texas, is open to a bipartisan bill that would fix the glitches in NICS. But the GOP leader stopped short of endorsing Murphy’s proposed expansion of the FBI background check system to cover sales by individuals on the internet and at gun shows.
“It’s an open secret that the background check system is fundamentally broken,” Murphy said.
He also said the military’s failure to report all of those who break the law while in uniform is “only part of the problem.” States have been slow to send the FBI criminal and mental health records, he said.
“I think there’s some potential to fix the background check system,” Murphy said.
Connecticut is one of 13 states that use their own screening system, then report the information they obtain to NICS.
A report released a year ago found that of 631 transactions examined by federal auditors across the 13 states operating their own system, for all but one sale the states “did not fully update the NICS database or inform the FBI of the transaction’s outcome.”
Shortcomings in the NICS system has created a strange marriage of gun rights groups. The “Fix NICS” campaign, initiated by the National Shooting Sports Foundation in 2013, has drawn support from gun control advocates, including Everytown for Gun Safety, Moms Demand Action, and Mayors Against Illegal Guns.
Meanwhile, Sen. Richard Blumenthal on Tuesday wrote Defense Secretary James Mattis demanding to know why Kelly’s military convictions were not reported to NICS.
In his letter, Blumenthal said the NICS system was strengthened by an act of Congress in 2007 to require federal departments and agencies to report to NICS “any record of any person demonstrating that the person falls within one of the categories described” in the Brady Bill.
“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,” Blumenthal wrote. “Based on a plain reading of … 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.”
He also said that while the investigation into the nation’s latest mass shooting 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.”
Also on Tuesday, Sen. Jeff Flake, R-Ariz. and Martin Heinrich, D-New Mexico, introduced a bill they say would close a “loophole” that allowed the military to keep information of those accused of domestic violence from the NICS system.
“Currently, the military is not reporting misdemeanors of domestic violence to NICS, the database utilized for firearms background checks, and it’s not clear that they can under current law,” Flake said.
He said his bill will permanently close this loophole, “which was exploited by the shooter in Sutherland Springs, Texas.”
Despite fresh outrage about mass shootings, it’s unlikely Congress will do more than act to require better reporting to the NICS system.
After the Las Vegas shooting in early October, there was a push to ban bump stocks, mechanisms that allow a semi-automatic weapon to fire like an automatic weapon. But momentum to do so has since died down.
Correction: An earlier version of this story erroneously said that gun control advocates, including Everytown for Gun Safety, Moms Demand Action, and Mayors Against Illegal Guns, had helped create the “Fix NICS” campaign. The campaign was formed in 2013 by the National Shooting Sports Foundation.