Three cities sue DoD over background check failures

Law enforcement officials works at the scene of a fatal shooting at the First Baptist Church in Sutherland Springs, Texas, Nov. 5, 2017. (Photo: Nick Wagner/ Statesman.com via AP)

The Department of Defense has faced intense criticism since a former Airman opened fire inside a Texas church Nov. 5, killing 26 and wounding 20 others, with a rifle his assault convictions barred him from owning. (Photo: Nick Wagner/ Statesman.com via AP)

Three cities sued the Department of Defense this week for its repeated failure to report disqualifying service member records to federal authorities — a longstanding issue illuminated by the shooting at a Texas church last month.

New York City, Philadelphia and San Francisco filed a complaint Tuesday against the DoD  for systemic breakdowns in reporting procedures dating back as far as 1997.

“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,” said Adam Skaggs, chief counsel for the Giffords Law Center to Prevent Gun Violence, in a press release Tuesday. “Just earlier this month, the Air Force Secretary and Acting Inspector General both told Congress these problems continue to this day.”

The legal challenge, backed by the Giffords Law Center, seeks an injunction and judicial oversight to mandate the department submit disqualifying criminal records to the databases feeding the National Instant Criminal Background Check System — restoring its integrity for the sake of the three cities whom “regularly” rely on it.

“This failure on behalf of the Department of Defense has led to the loss of innocent lives by putting guns in the hands of criminals and those who wish to cause immeasurable harm,” New York Mayor Bill de Blasio told The Hill. “New York City is joining Philadelphia and San Francisco to stand up to the Department of Defense and demand they comply with the law and repair their drastically flawed system.”

“We’re joining in this suit because reporting these records is absolutely critical to those decisions,” said Philadelphia Mayor Jim Kenney. “The background check system only works if it contains the proper records.”

Fixing NICS became a congressional priority after a former Airman gunned down 26 people at the First Baptist Church in Sutherland Springs, Texas on Nov. 5 with a rifle his domestic assault convictions barred him from owning.

A review of Department of Justice records in 2015 and 2017 found roughly one third of service members’ criminal convictions were missing from federal databases. DOJ reviews as far back as 1997 highlighted the reporting lapses, though federal officials told the Senate Judiciary Committee earlier this month the recommendations to fix the system over the last 20 years “weren’t taken seriously enough” — a fact admitted by military officials in the days after the shooting.

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

Texas Republican Sen. John Cornyn sponsored a measure two weeks after the shooting providing incentives to states and federal agencies that upload disqualifying criminal and mental health records to NICS. The bill’s language was amended into the Concealed Carry Reciprocity Act and passed in the House earlier this month, though it faces an uncertain future in the Senate.

“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,” Skaggs said. “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.”