WASHINGTON – The Air Force’s failure to transmit the criminal record of the Texas church shooter Devin Kelley to the FBI – which would likely have stopped the sale of a rifle used in Sunday’s massacre – highlights a longstanding problem with the systems the U.S. government uses to restrict firearms sales and track gun ownership.
Federal authorities have for years openly complained that incomplete databases and staff shortages make it difficult to keep pace with the constant stream of background checks required of most new gun purchasers and efficiently trace firearms used in crimes.
Last year, the FBI official overseeing the bureau’s National Instant Criminal Background Check System was forced to transfer personnel from construction projects and units that oversee the gathering of crime statistics to keep up with the surge of requests for background checks. The office processed a record 27.5 million background checks in 2016.
At the Bureau of Alcohol Tobacco Firearms and Explosives’ National Tracing Center, meanwhile, shipping containers and cardboard boxes brimming with un-examined paper purchase records have languished in hallways and in the center’s parking lot in recent years awaiting transfer to an electronic system.
“Unless people get serious about these issues, the problem is just going to keep getting worse,” said Michael Bouchard, a former ATF assistant director. “Sometimes, it gets beyond the point of ridiculous.”
The rifle Kelley used in Sunday’s assault, which left 25 dead including a pregnant woman whose unborn child also died, was quickly traced to the gunman and a 2016 purchase in San Antonio.
By then, it was too late: The troubled airman’s 2012 court martial and conviction on domestic violence charges for assaulting his wife and attacking his 1-year-old child with nearly fatal force was not transmitted to the FBI, the agency admitted late Monday. The failure cleared the way for the rifle purchase at a San Antonio sporting goods store.
The crucial background check breakdown underscores the most dreaded vulnerability of the existing system: a database rife with incomplete or inadequate record submissions from local law enforcement agencies.
The FBI continues to depend on a database that largely relies on voluntary record submissions from law enforcement agencies to guard against unauthorized firearm purchases.
“Many of the challenges that we have long faced have not gone away, nor will they go away,” said Stephen Morris, a former assistant FBI director who recently oversaw the bureau’s vast background check operation based in West Virginia.
“We could build the best IT (information technology) system money can buy – the fastest, most efficient,” Morris said. “In the end, it is only as good as the information that is fed into it. Like they say: Garbage in, garbage out.”
The NICS system, mandated by Congress as part of the Brady Handgun Prevention Act, has for more than 20 years served as the centerpiece of the government’s effort to block criminals from obtaining firearms. Yet the operation has largely struggled to keep pace with the volume of firearm transactions and still properly maintaining the databases of criminal and mental health records necessary to determine whether buyers are eligible to purchase guns.
Because of the voluntary nature of these kind of submissions, Morris said the NICS system has long been plagued by incomplete or outdated information. In many cases, a background check may show a record of arrest, but there is no additional information to indicate whether the case was dismissed or resulted in a felony conviction which would prohibit a gun purchase.
The mere record of arrest is not enough to prohibit a gun sale. So FBI analysts must race to fill such information gaps within the three-day time period allotted for each check.
The search sometimes requires inquiries to police departments, courthouses and prisons across the country to match final dispositions to the incomplete records.
“I can’t tell you how much effort goes into this type of digging within the short time allotted,” Morris said.
In Kelley’s case, the Air Force not only failed to provide the record of his conviction, it also missed other potential opportunities to alert the FBI to Kelley’s legal troubles. Among them: his initial arrest on the domestic abuse charges and his 2012 escape from a New Mexico behavioral health facility where he was being treated for “mental disorders” in advance of the court martial proceeding.
Police in El Paso, Texas, ultimately captured Kelley, noted in their report that the airman – then-stationed at nearby Holloman Air Force Base, N.M. – was regarded as “a danger to himself and others,” had been caught sneaking firearms on the base and had lodged death threats against his military superiors.
“It does appear that there were several opportunities in which information could have been fed to the (FBI) system,” Morris said.
The Air Force has announced it is investigating the breakdown. The Pentagon also is reviewing the case to determine, in part, whether the military should supply arrest records or other types of information to the FBI. (According to the FBI, the Defense Department currently submits only dishonorable records for the Army, Navy and Marines to the FBI database.)
Yet even when records do exist, the case of Dylan Roof, who in 2015 fatally shot nine people in a South Carolina church, proves that the system is far from foolproof.
During Roof’s 2015 background check related to the purchase of .45-caliber handgun, a prior arrest on felony drug charges was mistakenly attributed to the Lexington County, S.C., Sheriff’s Department, not the Columbia Police Department, which actually made the arrest. The sheriff’s department operates the jail where Roof had been detained.
The Columbia police report included information that Roof admitted to drug possession, a detail that would have triggered an immediate firearm purchase denial by the FBI’s NICS’ system, according to bureau guidelines. That information, however, was never seen by the FBI background check analyst because the bureau’s database did not include Columbia police contacts in its list of area contacts for Lexington County purchase reviews.
The analyst did attempt to reach the Lexington County prosecutor’s office, which was handling the case at the time, but received no response.
Ultimately, Roof was able to walk away with the weapon that he used two months later to kill nine people during an evening Bible study session at the iconic Emanuel AME Church in Charleston, S.C.
“We are all sick about what happened,” then-FBI Director James Comey said during a 2015 briefing when the error was disclosed.