December 26, 2017—After the Air Force failed to provide records that would have prevented the perpetrator of the mass shooting in a church in Sutherland Springs, Texas, from buying a gun, three cities today filed a lawsuit to prevent it from happening again. The cities are represented by Pillsbury Winthrop Shaw Pittman LLP, which worked with Giffords Law Center to Prevent Gun Violence to develop the case. The action seeks to compel the Department of Defense (DoD), the Air Force, the Navy, and the Army to fulfill their longstanding legal obligation to report all service members disqualified from purchasing and possessing firearms to the FBI’s national background check system.

In today’s complaint, New York City, Philadelphia, and San Francisco, each of which regularly rely upon the integrity of the FBI’s background check system, seek federal court oversight of the Department of Defense and military branches, to ensure that they consistently submit to the FBI all records of service members with disqualifying convictions or dishonorable discharges. Those convictions and discharges should prevent current or former service members from legally buying or possessing firearms.

On November 5, a gunman with a history of domestic violence entered the First Baptist Church in Sutherland Springs and killed 26 churchgoers, injuring 20 others. It was later revealed the gunman had been court-martialed for two counts of domestic violence and had received a bad conduct discharge from the Air Force, after assaulting his first wife and cracking the skull of his baby stepson. That prior conviction should have disqualified him from ever buying or possessing any guns. But, because the Air Force never entered that information into the FBI database for background checks on gun purchasers, he was still able to pass a background check and buy the assault rifle used in the Texas church shooting.

“The horrific mass shooting in Sutherland Springs made all too clear the devastating consequences that can follow when known dangerous people are able to pass background checks and acquire guns,” said Adam Skaggs, Chief Counsel, Giffords Law Center to Prevent Gun Violence. “For two decades, the Department of Defense was aware of the fact that it was failing to report unacceptably high numbers of disqualifying records to the FBI. Just earlier this month, the Air Force Secretary and Acting Inspector General both told Congress these problems continue to this day. Legislative solutions to strengthen the background check reporting system exist, but instead of taking the urgent action voters are demanding, Republican lawmakers are playing political games with the Fix NICS Act. And this is why we’re now going to the courts. After twenty years of failure, outside monitoring by the courts is clearly necessary to guarantee that the reporting failures that led to the Texas church shooting never happen again. That’s exactly what this lawsuit aims to accomplish.”

“Our three-city coalition will right this two-decade wrong,” said Pillsbury partner Ken Taber, lead counsel for the plaintiffs. “The Executive Branch and Congress have both had their chances to repair this clearly broken system. Now, after 20 years of failure, it’s time for the courts to step in,” Taber said.

The lawsuit filed today seeks an injunction, and judicial oversight, to ensure that DoD  consistently meets its legal obligation to submit records to the FBI for inclusion in the background check system. Under the judicial order requested, the DoD and its branches would be compelled to ensure current and past disqualifying records are filed to the background check system, as is already required by law. DoD would also be required to report back to the Court regularly on its compliance efforts.

The DoD has a well-documented history of failing to report disqualifying records to the FBI:

  • In 1997, the DoD Inspector General reported that the Air Force failed to submit appropriate records in approximately 50% of its cases; the Navy failed to submit final records in approximately 94% of its cases; and the Army failed to submit records in approximately 79% of its cases.

  • Eighteen years later, in 2015, the DoD Inspector General reported that the same problems persisted, and the Air Force still failed to submit records in approximately 32% of its cases; the Navy still failed to submit records in approximately 25% of its cases; and the Marine Corps failed to submit records in approximately 33% of its cases.

  • Just this month, the DoD Inspector General reported that the Air Force failed to submit records in approximately 14% of its cases, the Navy failed to submit records in approximately 36% of its cases, the Army failed to submit records in approximately 41% of its cases, and the Marines Corps failed to submit records in approximately 36% of its cases.

  • The DoD Acting Inspector General testified to Congress just two weeks ago that these problems persisted because DoD simply “didn’t take [his office’s] recommendations as seriously as they should have.”