One military reporting error means tens of thousands could buy guns illegally

The mistake allowed the shooter who killed 26 churchgoers in Texas to get his guns.

Military Police patrol during the March For Our Lives anti-gun rally in Washington, DC, on March 24, 2018. 
Military Police patrol during the March For Our Lives anti-gun rally in Washington, DC, on March 24, 2018. CREDIT: DAVID GANNON/AFP/Getty Images

At least 15,000 people who shouldn’t be able to legally purchase a gun might still be able to because the military never reported their information to the FBI, according to a new estimate by plaintiffs in a civil suit against the Department of Defense.

That number could be even larger, experts say, because it may exclude some domestic violence cases that military and civilian courts prosecute differently.

The estimate was included in a court filing earlier this month in a lawsuit New York, San Francisco, and Philadelphia brought against the Defense Department over the military’s longstanding failure to report arrests and convictions to the FBI’s gun background check system.

The military has failed to report convictions to the FBI for decades, but the issue came to light after Air Force veteran Devin Kelley opened fire at First Baptist Church in Sutherland Springs, Texas, last November, leaving 26 dead and 20 injured.


Kelley shouldn’t have been able to legally purchase the guns he used in that shooting because he had been convicted of a domestic violence assault while he was in the Air Force. The Air Force never sent his files to the FBI, as the law requires, and the mandatory background check didn’t flag him.

The military, in particular, is falling short of its obligation to report data to the background check system, according to government reports. The new estimate also highlights a serious shortcoming with the nation’s gun background check system in general, which depends on records from federal, state, and local agencies, says Jeffrey Swanson, a professor of psychiatry at Duke University whose research focuses on firearms laws and mental health.

“People think it’s comprehensive,” Swanson told ThinkProgress. “But it’s only as good as the information that’s in there.”

The military has known about its shortcomings for decades: A 1997 report by the Department of Defense Inspector General found rock-bottom compliance rates across all three branches. That hadn’t changed much when the Inspector General did follow-up reports in 2015 and 2017. The 2017 report concluded that military law enforcement didn’t report final case outcomes to the FBI 31 percent of the time, on average, in 2015 and 2016.

After the Texas shooting, the Army started a review of its reporting to the FBI since 1989. It found 32,932 current or former soldiers — or about 4.6 percent of currently enlisted active-duty and reserve soldiers — who are prohibited from buying a firearm under federal law, according to a March 5, 2018, court filing.


To get an estimate for the entire DOD, the three cities involved in the lawsuit assumed that about 4.6 percent of Navy, Air Force, and Marines personnel also have convictions that would bar them from owning a firearm. That would result in an estimated 55,000 active-duty and reserve personnel in the Navy, Air Force, and Marines who are barred from owning a firearm.

To estimate how many of those 55,000 additional people the military didn’t report to the gun background check system, the plaintiffs used the 2017 Inspector General report. It found the percentage of disqualified people each branch didn’t report to the FBI in 2015 and 2016. The plaintiffs applied those percentages to their 55,000 estimate.

That calculation yielded an estimate of 15,000 people in the Navy, Air Force, and Marines who shouldn’t be able to purchase a gun, but may not be in background check databases because the military never sent their information to the FBI.

The plaintiffs say in their court filing that the math they used is rough: It combines data from different services branches and times periods to come up with a number for the whole military. But it’s the first quantitative guess at how many people might have slipped through the cracks — and how many guns could get into the wrong hands.

Still, the new estimate likely provides only a partial view of a much more systemic problem.

The military fails to adequately track its domestic violence cases

Federal law bars people from owning firearms if they’ve been convicted of a “misdemeanor crime of domestic violence.” In the military justice system, those cases are usually tried as assault. Officials then code them as domestic violence so they can be reported to the FBI and elsewhere.


The specifics of how that works differ between the military branches. In the Air Force, for example, the staff judge advocate puts a notation on the post-trial documents that reads “Crime of Domestic Violence” if an assault case meets the definition for domestic violence. Kelley’s post-trial documents, released by the Air Force after the Sutherland Springs shooting, were marked with that notation. But the system doesn’t always work like that.

Eric Carpenter, a former Army lawyer who now teaches law at Florida International University, looked at misdemeanor assault case in the Army from 2004 to 2012. He found 3,478 that fit the definition of domestic violence. Of those, the Army coded 2,119 — or just under 61 percent — as domestic violence in its internal databases. The other 1,359, or about 39 percent, weren’t coded as domestic violence. That clerical error means those people probably weren’t reported to the FBI’s gun background check system despite being legally barred from owning a firearm.

“The services may not [be] accurately identifying misdemeanor domestic violence offenses,” Carpenter told ThinkProgress in an email last year. “An additional step is required for those offenses to make it into the system.”

It’s not clear whether either the Army’s review of past cases or the 2017 Inspector General  report — both of which were used to create the new estimate — included cases where the military did not properly code a misdemeanor domestic violence conviction. If not, there could be even more than 15,000 cases the military failed to report to the gun background check system.

Asked whether the Army’s review of past cases included assault cases that weren’t properly coded as domestic violence, but should have been reported to the FBI, a spokesperson declined to comment on “matters that are currently in litigation.”

The DOD Inspector General referred questions about domestic violence coding for the data in its 2017 report to the individual branches’ Judge Advocate General offices. Those offices did not immediately return requests for comment.

The government did not address the new estimate in its Wednesday response to the plaintiffs’ court filing. Currently, all three military service branches are in the process of reviewing their past reporting and their current processes, and the Defense Department Inspector General is working on a report that will look at why the military has had these reporting shortfalls for so long. A spokesperson for the Inspector General’s Office declined to say when that report will come out.

“We have yet to see proof from the government that they have cured this problem,” said Kenneth Taber, a partner at the law firm Pillsbury Winthrop Shaw Pittman who is representing the cities in their lawsuit against the Defense Department. “It’s four months since the Sutherland Springs shooting, and the absence of proof that they have cured this problem is both highly disappointing and of serious concern.”