Devin Patrick Kelley – identified as the shooter who killed 26 people and wounded many others yesterday in a South Texas church – was reportedly a former member of the Air Force who was convicted by a court-martial in 2012. This AP report, for example, states:

Kelley received a bad conduct discharge from the Air Force for assaulting his spouse and child, and was sentenced to 12 months’ confinement after a 2012 court-martial. Kelley served in Logistics Readiness at Holloman Air Force Base in New Mexico from 2010 until his 2014 discharge, Air Force spokeswoman Ann Stefanek said.

From this information I found the Air Force CCA’s opinion in United States v. Kelley, No. 38267, 2013 CCA LEXIS 1100 (A.F. Ct. Crim. App. Dec. 3, 2013) (link to slip op.), rev. denied, 73 M.J. 257 (C.A.A.F. 2014). The opinion is not on the CCA’s website, but it is a summary disposition affirming the findings of a general court-martial and a sentence of confinement for 12 months, reduction to E-1, and a bad-conduct discharge.

That doesn’t tell us the precise offenses of which Kelley was convicted, but it strongly suggests that Kelley was convicted of an offense for which the maximum authorized punishment exceeds confinement for one year.

Accordingly, 18 U.S.C. § 922 prohibits Kelley from possessing practically any firearm:

(g) It shall be unlawful for any person–

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; . . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

However, according to this Washington Post story:

Officials described the shooter’s weapon as a Ruger AR-556, an assault-style rifle similar to those used by the military. CNN, citing a law enforcement individual, reported that Kelley purchased the weapon in April 2016 from an Academy Sports & Outdoors store in San Antonio.

(emphasis added).

Update 1 (1135 eastern):
Some media outlets report that Kelley’s court-martial convictions related to domestic violence (this local news report quotes an Air Force spokeswoman as saying he was convicted of domestic violence in 2012 at Holloman AFB in Alamogordo, New Mexico).

If so, then in addition to the prohibition in 18 U.S.C. § 922(g)(1) discussed above, he was alternatively prohibited from possessing a firearm by 18 U.S.C. § 922(g)(9), commonly known as the Lautenberg Amendment, which applies to anyone:

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

Update 2 (1354 eastern): Thanks to our reader for a link to the opinion now available on the CCA’s website (I’m certain it was not there this morning).

Update 3 (1400 eastern): While the adjudged sentence tracks the maximum at a special court-martial, CBS news reports here that “the Air Force tells CBS News Kelley’s case was a general court martial. . .”

Update 4 (1612 eastern): The New York Times reports here:

“He assaulted his stepson severely enough that he fractured his skill, and he also assaulted his wife, said Don Christensen, a retired colonel who was the chief prosecutor for the Air Force. “He pled to intentionally doing it.”

He was sentenced in November of that year to 10 months’ confinement and reduction to the lowest possible rank. After his confinement, he was discharged from the military with a bad conduct discharge. It is unclear whether his conviction would have barred him from purchasing a gun.

(emphasis added). We, of course, know that the last sentence is wrong.

41 Responses to “Texas shooter Devin Kelley was prohibited from possessing a firearm (UPDATED)”

  1. DCGoneGalt says:

    If this is all true . . . I demand that Congress pass a law that the law (18 USC 922) is enforced.

  2. Tami a/k/a Princess Leia says:

    It depends on how the state of Texas treats his special court-martial conviction.  If he was charged with felony level assault, even though it’s a special court-martial, then Lautenberg wouldn’t apply, though there would be a separate prohibition due to felony.  If it’s treated as a misdemeanor, then it greatly depends on whether he was really convicted of “domestic violence.”  It’s very possible to be found guilty of assault, but unless that included a finding the assault was on a spouse and/or child of his, then it’s not “domestic violence” for purposes of Lautenberg, and the prohibition on firearms wouldn’t apply.

  3. Tami a/k/a Princess Leia says:

    Since the case was referred to a special court-martial, it is possible that 18 USC 922(g)(1) doesn’t apply because the confinement could not exceed one year.

  4. Anon says:

    Wasn’t it a General Court Martial?

  5. Tami a/k/a Princess Leia says:

    Anon,
     
    No, it was a special BCD court-martial, capped at 12 months confinement and a bad conduct discharge.  Media reporting that he was dishonorably discharged are incorrect.  Which goes to show they have no idea what they’re talking about.

  6. Zachary D Spilman says:

    General court-martial according to the CCA’s opinion in the Lexis database.

  7. AF Maj says:

    Tami… it was a GCM
    http://afcca.law.af.mil/content/afcca_opinions/cp/kelley-38267.pc1_-_corrected_copy.pdf

  8. Former. says:

    Zachary Spilman – Thank you for clear news/analysis with links.

  9. Superior Officer says:

    Tami, it was a GCM, not a special BCD.

  10. Nate says:

    Domestic violence assaults are charged under Article 128, UCMJ.  But the model Specification for Article 128 battery does not distinguish between a domestic violence assault and a bar fight assault.  So I don’t see how a state is supposed to figure out that an Article 128 conviction is a domestic violence conviction under Lautenberg.    
    Here’s one idea.  If a military prosecutor wants to make a 128 conviction a qualifying conviction under Lautenberg, They can add a modifying clause like “an intimate partner” or “his wife” to the identity of the alleged victim in the Specification.          

  11. Concerned Defender says:

    A terrible, heartless, and horrific tragedy.   
    It’s naive to think that a Background Check would thwart the heartless evil willing to do a planned and premeditated mass murder like this.  It’s not uncommon for the military or legal communities to react with “we need more/better laws.”  Wake up folks… 
    While yes, he was probably a prohibited person, does anyone think he wouldn’t use a stolen or black market gun, or a rented truck like we saw in NYC, or rat poison, or a fire bomb, or any other number of items commonly available.  Chicago has very strict gun control and yet ~2 gun homicides daily and I’ve venture most are stolen or illegally possessed.
    Just like Hassan, Roof, Holmes, Alexis, Lopez, and so many others, they are evil and they select unarmed congregated targets for mass damages, and they are only stopped once they are confronted by armed good guys.
    Like the others, this was an intelligence failure, not a failure to ‘better regulate’ an inanimate object.  Someone knew this man was a threat.  
    This was also sadly a failure of citizens not taking greater responsibility for their own safety.  We live in a world with evil among us.  This man wasn’t stopped until confronted by a citizen with a gun.  I’d encourage everyone to seriously consider and take their own and their families safety more seriously when in public.  Most folks are pretty vulnerable in society, and oblivious to violent threats.  It may not be the solution for every conceivable attack, but it greatly increases odds of ending the attack and your survival.  It is irresponsible to not have some armed good guys around to protect congregated folks like churches and schools.  News flash – murderers don’t follow gun laws… 

  12. The Silver Fox says:

    The crimes would absolutely qualify under the Gun Control Act of 1968, 18 USC 922 (and the subsequent Lautenberg Amendment to the Act)–both as crimes of domestic violence and as felony offenses (max punishment for 128 offenses was over one year, and the forum was a GCM).  I’m going to go out on a limb and bet that this conviction was never reported to the National Crime Information Center.  And, the state has nothing to do with the typical background check completed at a firearm retailer.  That’s a federal requirement accomplished pursuant to the Brady Handgun Violence Prevention Act.  Here, it looks like he was subject to a background check but nothing came up. 

  13. Michael Lowrey says:

    Perhaps he most interesting part of the CBS News article Zach linked to above relates to Kelley’s employment earlier this year as an unarmed security guard. Apparently a GCM conviction resulting in a BCD and a year prison sentence doesn’t show up in background checks and/or aren’t disqualifiers for such jobs:

    Kelley was licensed by the Texas Department of Public Safety for the security guard position, reports the [San Antonio] Express-News. [Texas Department of Public Safety regional director Freeman] Martin confirmed Kelley had a “non-commissioned, unarmed, private security license similar to a security guard at a concert type situation.”
    Martin said Kelley had “no disqualifiers” to enter into the National Crime Information Center Database that would preclude him from receiving a private security license.  He said private security background checks include fingerprints and criminal history checks with Texas Crime Info Center and national databases, and Kelley was cleared.

  14. Tami a/k/a Princess Leia says:

    AF Maj and Zach,
     
    Thank you very much for the clarification and correction!  Is it possible that there were several specifications of “straight” Article 128 assault consummated by a battery (bad-conduct discharge), or simple assault (no discharge) which, combined, could qualify for an enhancement of a dishonorable discharge?  Or each specification added together exceeds one year?
     
    Nate, for Lautenberg purposes, “intimate partner” isn’t sufficient to qualify as “domestic violence.”  It’s limited to the accused being the spouse, parent, or guardian of the victim.  For state purposes, an “intimate partner” could qualify as “domestic violence.”  In Wisconsin, assaulting your college roommate would count as “domestic violence.”  But not for Lautenberg.

  15. Tom Booker says:

    Without seeing either the charge sheet or the results of trial/CA’s action/promulgating order, it’s impossible to tell, but if the AP report that a child was involved is accurate, then that bumps the confinement for a battery up to 2 years.
     
    Respectfully, LTB

  16. AF Maj says:

    Tami,
    It’s entirely possible that there were several 128s that combined for more jail time.  The assault consummated by battery would have been necessary for a punitive discharge.  But as LTB said, without a charge sheet we’re all guessing.  I see nothing in the opinion that can give us any insight.

  17. Tami a/k/a Princess Leia says:

    AF Maj, I completely agree, we need the record of trial, not just to see the charge sheet but also to see what he got convicted of.  Sometimes it happens in a “compromise” finding to not charge, or except out, enhancers, such as age, so even if he was in fact charged with ACBB on a child, if he was only found guilty of ACBB, then we’re back to 6 months and a BCD.  However, if there was only one additional conviction for a straight ACBB, or 2 convictions for simple assault, then confinement does not exceed 12 months, and then we have to look at whether the convictions qualified as “domestic violence.”
     
    There needs to be a FOIA request for the ROT.  I suspect a lawsuit is coming over the failure to enter the conviction into the NCIC or the failure to conduct an adequate background check, or both. 

  18. Alfonso Decimo says:

    The services are often asked to state whether a conviction is a felony, such as for habitual felon prosecutions, or for sentencing generally. The response is, as stated above, the military justice system doesn’t use the term and the jurisdictions have developed varied interpretations. One state may say all GCM convictions are felonies, another will say some SPCMs, based on the crime, while others will say no courts-martial are to be considered felonies. Would the group agree the first interpretation is problematic when an officer refuses NJP for a misdemeanor-level offense? I don’t have my MCM anymore, but I think an officer must be tried by a GCM for any offense.

  19. Tom Booker says:

    Good news for Alfonso Decimo — Zack has very helpfully provided a link to the MCM on this website.
     
    Officers may be tried by either Special or General Court-Martial (subject to Congressionally imposed limitations, as for example in the Article 120-type offenses).  They may not be tried by Summary Court-Martial.  Officers may not be confined or discharged by a Special Court-Martial.
     
    Portions of 18 U.S.C. 922 are “agnostic” regarding characterization of felony versus misdemeanor — the question is simply the maximum punishment.  The Lautenberg amendment, on the other hand, speaks of a “misdemeanor” conviction, which would certainly cover all SPCM and GCM convictions.
     
    Respectfully, LTB
     

  20. Michael Lowrey says:

    Per the New York Times:

    Before a gunman entered a rural Texas church with a ballistic vest and a military-style rifle, killing at least 26 people on Sunday, he was convicted of assaulting his wife and breaking his infant stepson’s skull.
    In 2012, while stationed at Holloman Air Force Base in New Mexico, Devin P. Kelley, 26, was charged with “assault on his spouse and assault on their child,” according to the Air Force.
    “He assaulted his stepson severely enough that he fractured his skull, and he also assaulted his wife,” said Don Christensen, a retired colonel who was the chief prosecutor for the Air Force. “He pled to intentionally doing it.”
    He was sentenced in November of that year to 12 months’ confinement and reduction to the lowest possible rank. After his confinement, he was discharged from the military with a bad conduct discharge. It is unclear whether his conviction would have barred him from purchasing a gun.

  21. JAGBeard says:

    Per AFI 51-201, as part of the post-trial process, when an accused is convicted at a SPCM or GCM of an offense constituting a crime of domestic violence, it has to be indicated on the Report of Result of Trial and in any promulgating order.  The AFI has an entire section re: compliance w/ Lautenberg.  Check out 51-201, para 13.22 and 13.23.  http://static.e-publishing.af.mil/production/1/af_ja/publication/afi51-201/afi51-201.pdf
     

  22. JAGBeard says:

    AFI 51-201, para. 13.22 and 13.23 explains the process for Lautenberg following a conviction.  It’s the responsibility of the base SJA to make a notation on the Report of Result of Trial and promulgating orders that the accused was convicted of a crime of domestic violence using the definitions in 18 USC 921 and 922. 
    http://static.e-publishing.af.mil/production/1/af_ja/publication/afi51-201/afi51-201.pdf

  23. Zachary D Spilman says:

    We need the 21 December 2007 version of that, JAGBeard, as it is the one that was in effect at the time of this court-martial. 

  24. Nathan Freeburg says:

    Decimo, a SPCM cannot adjudge either confinement or a discharge to a commissioned officer. So officers being tried by a SPCM are extremely rare. But not unheard of, usually as part of a plea agreement. 

  25. Nathan Freeburg says:

    Sorry, I see Tom already answered that. 

  26. T. D. Why says:

    Air Force admits it erred:  
    https://www.nytimes.com/2017/11/06/us/texas-shooting-church.html?smid=tw-nytimes&smtyp=cur
     

  27. Tami a/k/a Princess Leia says:

    This is a big oops on the Air Force.  I see a lawsuit coming.
     
    https://www.yahoo.com/news/air-force-failed-enter-church-225139639.html

  28. JAGBeard says:

    Couldn’t find the 2007 version, but did have a copy of the 2003 version and language was exactly the same.  
    Re: the failure of the AF to enter the offense into NCIC, I’ve always suspected there were glitches in the way the military reports court-martial convictions.  As a defense counsel, I had few clients who told me that months/years after having been convicted at a court-martial, the conviction wasn’t showing on criminal background checks for jobs, etc.

  29. Michael Lowrey says:

    The Washington Post has posted trial documents here.
    Kelley pled guilty to striking, chocking, kicking, and pulling the hair of his wife on divers occasions and assaulting his under the age of 16 stepson with force likely to produce death or grievous bodily harm on divers occasions. I’m surprised the panel (officer with enlisted representation) only gave him a year.

  30. 4421LN says:

    I find it hard to believe that the TC didn’t include in the Results of Trial, and GCMCA Post Trial Review process, failed to include the MCDV language In the Record of Trial/CAs Action/Promulgating Order.    My money is on PMO failing to report correctly in NCIC.
     
     

  31. AF JAG 67421 says:

    PSA … Title 18 USC defines both misdemeanors and felonies at many different points. No criminal offense found in Title 10 is so classified…

  32. Tami a/k/a Princess Leia says:

    4421LN,
     
    They did include the “DNA Processing Required” and “Domestic Violence Conviction” captions, in bold.

  33. AF JAG 67421 says:

    Whoops sent that sooner than intended … Title 18 of the USC defines various illicit conduct at various points as a misdemeanor or felony. Title 10 of the USC does not. 18 USC 922(g)(9) pertains to conviction of a misdemeanor offense of domestic violence. Nonetheless both 18 USC 922(g)(1) as well as 922(g)(6) (discharge under dishonorable conditions) should have applied to the gunman in the tragedy in Texas.

  34. TheWeirick says:

    This string illustrates one of the serious shortcomings of military justice, to wit, lack of transparency. There are multiple military-justice experts in this thread who don’t even know if this case was a GCM. We have to rely on the WaPo to post the trial documents. This would never be the case in the Federal system, because PACER would make it a simple matter to retrieve accurate information. It’s unfathomable that the military hasn’t joined PACER.  What is the possible downside to transparency?  

  35. Zachary D Spilman says:

    We knew from the beginning that it was a GCM, TheWeirick. The CCA’s opinion says that clear as day. 

    There are structural barriers to PACER in military justice (the Privacy Act chief among them). Ignoring those and bleating PACER, PACER, PACER, doesn’t improve anything. 

  36. DCGoneGalt says:

    Zach:
     
    1. Adobe Pro has a redact feature.  I’ve seen it, it’s like magic.  Is this really that hard? 
     
    2.  PACER, PACER, PACER!  What do we want?  PACER!  When do we want it?  Right after this training on sexual assault awareness and post-trial processing on domestic violence convictions. 

  37. Ghost says:

    I was given a GCM (larceny) and was cleared to receive a FOID card in Illinois after review from the FBI. And yes, my convictions are in NCIS.
     
    The word “Felony” denotes that there was an indictment. It wasn’t until recently in our history were most states added the “year or more”. I think Massachusetts still has it defined as confinement in a state 20)The term “crime punishable by imprisonment for a term exceeding one year” does not include— (A)any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or (B)any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less in a penitentiary.  As noted, some states a misdemeanor is up to two years.  In fact, looking up the notes on 18 U.S.C. § 922(g)(1) it says this:
    “20)The term “crime punishable by imprisonment for a term exceeding one year” does not include— (A)any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or (B)any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
     
    It appears they mean felony without actually using the term. In any event it would be difficult to argue that the sentence in a court-martial would fall under 18 U.S.C. § 922(g)(1). Think of all the service members who have a GCM conviction and stayed in the military illegally possessing firearms…
     
    Having said that, his conviction for domestic violence should have disqualified him. I’m not sure how these are “flagged” in NCIC.

  38. TheWeirick says:

    The Privacy Act is not a structural barrier to making military criminal documents available.  Federal Couts solved that issue almost a decade ago. 
     
    http://www.uscourts.gov/rules-policies/judiciary-policies/privacy-policy-electronic-case-files

  39. DCGoneGalt says:

    The Weirick:  You forgot to add the obligatory “PACER, PACER, PACER!” to the end of you post.

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