DoD bristles at expedited document request from cities in gun database lawsuit

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/ via AP)

Three major cities sued the Department of Defense last month for its failure to report the Texas church shooter’s criminal background to federal authorities, thus allowing him to buy the gun he used to murder 26 people and wound 20 others. (Photo: Nick Wagner/ via AP)

The Department of Defense told a federal court last week a lawsuit pending from three major cities over the gun background check system overreaches.

In a 25-page response filed Jan. 12, federal attorneys called the expedited discovery request — via a claim under the Administrative Procedure Act — from the legal team representing the cities of New York City, Philadelphia and San Francisco “both meritless and premature,” insisting the court deny the motion ahead of the case’s April 6 hearing.

“Plaintiffs seek to wield this scalpel as a bludgeon, asking the Court to engage in far-reaching oversight of Defendants’ compliance with … a statute directing agencies to report criminal history data to the Attorney General, over a period of decades,” the motion says. “To that end, Plaintiffs have filed for a preliminary injunction and ask this Court to grant expedited discovery. Every aspect of Plaintiffs’ request is disfavored.”

City officials sued the department Dec. 22 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 year.

The legal challenge seeks an injunction and judicial oversight to mandate the department submit missing 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.

“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 Dec. 6 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.  “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.”

Taber called the department’s motion to deny expedited discovery of documents related to the case a “hide-the-ball strategy” in court documents filed Thursday.

“Their first substantive filing in this case regrettably … attempts to erect as many roadblocks as possible to the swift resolution of a deadly national problem,” he said. “This is a problem of clear national import, 20 years in the making.”

Taber argued the motion for expedited discovery is “essential to uncovering the reasons for Defendants’ two decades of non-compliance with the law and determining how to cure that problem once and for all.”

“We are surprised, in fact, at Defendants’ request for further such delays when their admitted failure to obey the law has already contributed to the deaths of 26 Texas churchgoers and the grievous wounding of 20 more,” he said. “It’s equally difficult to understand Defendants’ apparent indifference to the fact that further delay will only prolong the danger that such senseless carnage could happen again.”

The department has indicated it will file a motion to dismiss the case by the March 5 deadline.

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