It’s not an oversight, notes The Trace, it’s a quirk in how the military categorizes offenses. There’s no specific “domestic violence” charge under the UCMJ so any family abuse gets lumped under “assault.” A misdemeanor conviction for domestic violence bars you from buying a gun under federal law. A misdemeanor conviction for “assault” doesn’t.
Which is one big reason Devin Kelley, who cracked his baby son’s head open and somehow didn’t end up locked away for many years, was able to buy several guns before shooting up a church.
But it’s not the only reason:
A scan of active records shows that the Department of Defense has just a single misdemeanor conviction for domestic violence on file with the National Criminal Instant Background Check System, or NICS…
Records of misdemeanor domestic violence convictions can also wind up in a second database scanned as part of a gun background check, known as the Interstate Identification Index. A third database consulted by the FBI, the National Crime Information Center, or NCIC, logs protective orders. In its statement, the Air Force said that Kelley’s conviction should have been entered into NCIC, and that the service will perform a review to see why his base failed to do so, and if similar records from other cases have been omitted.
I’m still looking into whether the military sends information on domestic violence to that list. Even if it does, FBI examiners would be left to interpret the records within three business days, after which gun sales go through, under federal law, no matter whether the background check is still ongoing.
If not for the Air Force’s terrible mistake, sounds like the NCIC should have and would have snagged Kelley on a background check. But that doesn’t address the loophole in not entering domestic abusers in the armed forces into the main database, the NICS. And that’s a *big* loophole given the coincidence between mass shootings and domestic violence. Most domestic abusers don’t go on to shoot a bunch of random people, needless to say, but many mass shooters have a history of domestic abuse:
Several recent mass shooters share Kelley’s record of domestic violence. James Hodgkinson, who injured Republican Rep. Steve Scalise of Louisiana and several others when he opened fire on lawmakers and aides at a baseball practice in June, had been arrested in 2006 for hitting and choking his daughter. Omar Mateen, who killed 49 people in the Pulse nightclub massacre in Orlando last June, had an abusive relationship with his ex-wife, who said he frequently beat her. Robert Dear, who killed three people and wounded nine others when he opened fire on a Planned Parenthood clinic in Colorado in 2015, had been accused of domestic violence by two of his ex-wives. He was also arrested for rape in 1992. (There is no record Dear was convicted, suggesting the charge was ultimately dismissed.)
“People with a history of domestic violence appear to be overrepresented in public mass shootings,” says Dr. Garen Wintemute, director of the Violence Prevention Research Program at the University of California, Davis. “But the larger connection is this: a plurality of mass shootings are domestic violence events themselves.”
There’s no evidence that Stephen Paddock physically abused his girlfriend but he was known to berate her frequently in public. Who knows what went on behind closed doors. “[E]xperts say that certain elements of domestic abuse — feelings of masculine grievance, a desire to be feared, violent rage — are also found in mass shootings,” writes Charlotte Alter at Time, speculating about the connection. And as the doctor quoted in the excerpt pointed out, mass shootings are themselves often examples of domestic violence. Between 1999 and 2013, the Congressional Research Service found that “familicides” were the most common type of mass shooting (i.e., an incident in which four or more people were killed). Kelley’s rampage at the First Baptist Church in Sutherland Springs was itself a familicide in origin, apparently: The sheriff claims that threatening texts he sent to his mother-in-law are a key clue as to motive. It appears he showed up at the church hoping to murder her (and possibly her daughter, his wife) and to take as many of her fellow worshipers down with her as he could.
There are loopholes on top of loopholes, too. Being convicted of a domestic violence offense means you can’t buy any new guns but it doesn’t necessarily stop you from keeping the guns you already own. That’s an especially lethal threat to women in abusive relationships, as they’re much more likely to be killed by a violent husband or boyfriend who has a gun than they would be otherwise. And then there are the great unknown number of men who engage in domestic violence but are never reported for it, leaving the legal system unable to do anything to keep guns out of their hands. Point being, when someone like Devin Kelley does something egregious enough to not only land him on law enforcement’s radar but to actually secure a conviction for domestic violence against him, it’s crucially important for the law to do what it can to keep guns out of his hands. The loophole that leaves military offenders out of NICS should be closed. The question is how.
Congress could always create a specific offense of “domestic violence” for the UCMJ, which shouldn’t be difficult to pass. But I wonder if Trump or Mattis could bypass that by issuing an executive order requiring the service branches to record any “assault” convictions involving domestic abuse in NICS. That’d be good politics for Trump, as it’s bound to be very popular. And it would lower some of the heat the GOP routinely gets from the left after horrible incidents like these for not moving aggressively to regulate guns. It’s a no-brainer.
Update: Did The Trace get it wrong? A major in the Army emails:
The lack of a specific “domestic violence” charge under the UCMJ doesn’t preclude offenses from being entered into the various databases and therefore barring someone from possessing a firearm. The Army, for example, has an entire chapter in its Command Policy (Army Regulation 600-20, Chapter 4-22) dealing with whether a conviction is a “qualifying conviction” under the Lautenberg Amendment to the Gun Control Act of 1968. Other services have similar requirements.
The disconnect lies in the Trace (and other media) just doing quick searches for “domestic violence” and finding few hits. That’s true, but Kelley’s court-martial conviction SHOULD have been entered into the system given the facts of the case. It’s no different than a conviction requiring sex offender registration not being in the system if the administrative personnel forgets to hit SEND.
The fact it wasn’t has nothing to do with the UCMJ not having a “domestic violence” charge and more to do with a random AF employee or Airman simply not filling out the required form.
Here’s a link to Army Regulation 600-20. Chapter 4-22, addressing domestic violence offenses, starts on page 32. For what it’s worth, David French — a veteran and a lawyer — was unaware of the Regulation himself last night when he tweeted about the Trace piece.
It’s a relief to know that domestic violence court-martials aren’t slipping through the cracks wholesale. The question now is why the Air Force missed Kelley’s. Did someone forget to hit “send” or did they simply overlook what type of assault Kelley had been convicted of? If the latter, then a separate “domestic violence” might produce fewer mistakes of this sort.