Why Didn’t Shooter’s Military Charges Stop Him From Buying a Gun?

Officials say Devin Kelley bought the assault rifle used in the Sutherland Springs shooting from an Academy Sports & Outdoors store in San Antonio.

By Alain StephensNovember 6, 2017 7:04 am|

Several news outlets have reported that Devin Patrick Kelley, the suspect in a deadly mass shooting in Sutherland Springs, bought the weapon used in the attack from an Academy Sports and Outdoors store in San Antonio. Given Kelley’s history of domestic violence, some are saying he shouldn’t have been allowed to purchase a firearm in the first place.

While in the Air Force, Kelley was charged with two counts of domestic violence, a felony, and sentenced to 12 months of confinement before receiving a bad conduct discharge.

Alain Stephens, investigative reporter for the Texas Standard, says that although it is unlawful for a person convicted of a felony to possess or purchase a firearm, it’s unclear whether Kelley’s confinement is considered a felony, since the military does not distinguish between misdemeanor and felony charges.

In 1996, Congress passed the Domestic Violence Offender Gun Ban in order to prevent individuals convicted of a domestic violence conviction from being able to purchase, own, or transport a firearm or ammunition. Stephens says that a law similar to this federal law exists in Texas, but that the level of enforcement is up to the state.

Stephens says that in order to buy a weapon, an individual must complete a 44/73 form, also known as a federal background check. That check is administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives, or the ATF. The gun store then checks the form against the National Instant Criminal Background System, known as NICS. Stephens says that although this system is designed to flag things like domestic violence convictions, it’s unclear if Academy Sports & Outdoors ran the NICS check on Devin Kelley properly.

Officials said that Kelley’s request to obtain a Texas concealed carry permit was denied. Stephens says that although some consider background checks completed by the Texas DPS to be more thorough than federal background checks, a license to carry isn’t necessarily a requirement for someone who wants to purchase a weapon.

A 2016 audit by the Department of Justice Office of the Inspector General found that the NICS results on background checks have had a 99 percent accuracy rate. However, that same audit found that between 2008 and 2015, about 500,000 people were denied the ability to purchase a firearm because they did not clear the background check. Of those individuals, U.S. Attorneys around the country only seriously considered prosecuting about 250 people. Stephens said that the government hardly ever prosecutes these individuals for lying on these forms, but when they do, it is a serious federal offense punishable up to 10 years.

In addition, Stephens says, federally licensed firearms dealers are overseen by the ATF – a fact that has produced some criticism in recent years after reports found that the ATF only inspects about 7-8 percent of these gun stores annually. Stephens says that when the ATF does find issues with these gun stores, less than 1 percent of the stores have their federal firearms licenses revoked.

After this story aired, Texas Standard learned that Academy Sports & Outdoors has said in a statement that a background check was run on Kelley, and that he passed it.

Written by Rachel Zein.