[See update at the bottom. – J.E.]
At the moment, we still know less than we need to, to draw firm conclusions about Devin Patrick Kelley, 26, the resident of New Braunfels, TX who opened fire in the First Baptist Church in tiny Sutherland Springs Sunday morning and killed 26 people.
We do know, however, that Kelley had more guns in his vehicle when he sped off from the church after his attack. And we know that an armed neighbor of the church property confronted him as he was leaving the scene, engaging in an exchange of fire with him. We also know that a passerby, Johnnie Langendorff, saw the exchange occur, and took off after Kelley with the armed neighbor in his own vehicle.
Langendorff and the neighbor chased Kelley, continuing to exchange fire with him, until Kelley crashed his vehicle. After the crash, police found him dead inside it, although the cause of death has not been disclosed yet.
This is yet another incident for which the investigation will not be undertaken to support a trial – because the perpetrator is already dead. I’m not sure how many of us have thought clearly about the difference that makes. If there’s a trial after a felonious attack, there are a lot of things that are bound to come out eventually, because they’ll be entered into the court records.
But when the perp is dead, and there won’t be a trial, we are dependent on the executive branch alone for how it sets investigative priorities, and what it tells the public. Not having to convict a defendant also allows politics to trump law enforcement in setting priorities for the investigation. To assume that factor away, as if people never seize opportunities of that kind, is as foolish as to cynically (or conspiratorially) assume the factor is present.
That’s just something to think about, as this grotesque phenomenon seems to become more common.
Meanwhile, we do know about Kelley that he was born in 1991, a Texas native, and was in the Air Force from 2010 to 2014. His service was at Holloman AFB in New Mexico. He had apparently been married twice; his second wife’s mother was a member of the First Baptist Church of Sutherland Springs (a town of fewer than 400 people about 40 miles east of San Antonio), and was reportedly one of the fatalities in the massacre.
Heavy.com got some screen caps of his Facebook page before it was taken down, and notes that he “liked” a number of atheist-themed sites. He is being widely reported as a “bible school teachers’ aide,” but if you have any church experience, you understand that his listing of exactly one month in that capacity, out of his entire life, means that he volunteered one summer to assist in vacation Bible school, which usually runs 1-2 weeks. He appears to have done that before he developed the interest in atheist sites.
Regarding those, we aren’t in a position to make a whole lot of that data point, and I’m not here to. That may mean as much or as little as the information from his LinkedIn page that “he cared about civil rights and social action, animal welfare, children, arts and culture, the environment, health, and human rights.” (Well, Daily Mail has an update on the matter. Make of it what you will.)
More meaning can be derived from Kelley’s conviction by general court martial, while he was in the Air Force, on a domestic assault charge. The misdemeanor conviction was in 2012 – apparently for battery of his first wife and child – and resulted in reduction in grade, 12 months confinement, and a bad conduct discharge, which occurred in 2014.
USAF: Texas shooter court-martialed in 2012 for two counts of Article 128 UCMJ, assault on his spouse and assault on their child (1/2)
— Lucas Tomlinson (@LucasFoxNews) November 6, 2017
USAF: Kelley received ‘Bad Conduct Discharge,’ confinement for 12 months and a reduction to the grade of E-1 (2/2)
— Lucas Tomlinson (@LucasFoxNews) November 6, 2017
USAF: Texas shooter court-martialed in 2012 for assaulting wife and child, received ‘Bad Conduct Discharge’ in 2014 after locked-up a year
— Lucas Tomlinson (@LucasFoxNews) November 6, 2017
We’ve confirmed Devin Kelley, the #Texas shooter was given a Bad conduct discharge from USAF, reduction in rank and 12-months confinement.
— James LaPorta (@JimLaPorta) November 6, 2017
The last tweet from James LaPorta has an image of the Lexis result in the thread. It confirms a bad conduct discharge.
There’s an insane amount of misinformation flying around about this, so we can clear up a couple of things here. One, neither the bad conduct discharge nor the general court martial, by itself, makes Kelley ineligible to purchase or own a firearm.
If he had been given a dishonorable discharge – a specific category of discharge, and not just a colloquial way of referring to other-than-honorable discharges – he would automatically be ineligible. But he received a BCD (a “big chicken dinner,” as opposed to a “duck dinner”). That makes him ineligible for a concealed carry permit pretty much anywhere, but it doesn’t automatically make him ineligible to buy a gun.
A general court martial is often used to adjudicate misdemeanor offenses (as it was in this case), so it isn’t possible to assume that GCM punishment makes an offender ineligible to buy a firearm. (A felony does, but only certain limited categories of misdemeanors do.)
That said, a domestic violence misdemeanor does make someone ineligible to purchase a firearm. In theory, Kelley should have been ineligible for the Ruger AR-556 he purchased in April 2016 at an Academy Sports & Outdoors in San Antonio. (And the other guns found in his SUV, if he bought those after his conviction. They weren’t used in the attack, and the police haven’t released information about them that I’m aware of.)
The question we need to ask here relates not to Kelley’s eligibility status – with a domestic assault misdemeanor, he should have been ineligible – but to how the background check process would have picked up on the red flag in it: his court-martial conviction on a domestic violence charge.
The background check looks through three federal databases (see link below), as well as the state databases relevant to the purchase (i.e., the state where it’s made, and the residence address of the customer). But what I haven’t been able to determine is whether military convictions on domestic offenses get entered into the federal database in which such convictions are entered from state courts; i.e., the Interstate Identification Index (III).
It’s possible that Kelley’s court-martial conviction was never entered in a database that would be consulted in a firearms background check. His BCD itself is not a red flag entered in one of the databases.
And the domestic assault offense was adjudicated in a military court, not a state court. The III automatically updates with conviction information from state criminal courts. But there’s nothing I can find on whether military domestic violence convictions automatically go into the III or not.
We can hope to find out at some point what happened here. The gun dealer appears to be a reputable one that would go through the process diligently. But if there’s a crack in the system, Kelley may have slipped through it. Even if the background check looked at his DD-214 (the form that records his military service and includes the circumstances of his discharge), it wouldn’t show specifically that his bad conduct discharge was due to a domestic assault conviction.
Again, we don’t know everything yet that we need to. [See the update at the bottom.] It may be that the system actually broke down somewhere, as opposed to having a crack in it. That, in turn, does not mean Kelley could have found no other way to commit a shooting massacre. Criminals find ways to get around gun laws every minute of every day.
Meanwhile, it does appear that the two men who gave chase to Kelley may well have prevented him from going on to kill anyone else.
*UPDATE*: Although there’s more information to add, I wanted to make sure to post two particular updates to this article from earlier.
The first update is that the second man who pursued Kelley with Johnnie Langendorff — that is, the previously unnamed armed citizen who actually exchanged fire with Kelley — has been identified as Stephen Willeford, a local man who was formerly an NRA instructor.
Willeford’s daughter called him when she heard shots coming from the church (remember, this is a very small Texas town; most residents who aren’t on land outside of it live near the church):
Willeford got his rifle out of his safe and spotted the gunman outside of the church. That’s when he engaged. In an interview with 40/29 News, Willeford recounted the firefight, saying, “I kept hearing the shots, one after another, very rapid shots — just ‘pop pop pop pop’ and I knew every one of those shots represented someone, that it was aimed at someone, that they weren’t just random shots.”
He continued. “He saw me and I saw him. I was standing behind a pickup truck for cover.”
“I know I hit him,” Willeford said. “He got into his vehicle, and he fired another couple rounds through his side window. When the window dropped, I fired another round at him again.”
Johnnie Langendorff, a resident of nearby Seguin, was driving by the church on his way to his girlfriend’s house when he heard gunshots. Willeford ran over to his truck and said, “That guy just shot up the Baptist church. We need to stop him.”
Willeford and Langendorff chased down Kelley in their truck going 95 mph until Kelley’s car crashed in a ditch. They found him dead in his vehicle with a gunshot wound to the head.
The police hadn’t confirmed at that point that one of Willeford’s shots killed Kelley. (They may have done so since the article linked above was posted, but I haven’t seen it.)
Nevertheless, Willeford and Langendorff unquestionably drove Kelley away from the church — and the center of town — by confronting and chasing him. It really was, in other words, a good guy with a gun.
The other update is the answer to my question about whether military domestic violence convictions are being entered into the national database used for firearm background checks. The answer appears to be “hardly ever.”
This seems to be partly because the Uniform Code of Military Justice prosecutes domestic violence under the general heading of Article 128 “assault” — which also covers the other forms of assault, such as when airmen or soldiers get into brawls with each other.
[T]he military has no distinct charge for domestic violence, notes Grover Baxley, a former judge advocate general who now practices military law as a civilian. “We see this all the time,” Baxley said. “There is no specific domestic violence article.” Instead, military prosecutors charge abusers with other offenses, like assault.
A scan of active records shows that the Department of Defense has just a single misdemeanor conviction for domestic violence on file with the National Criminal Instant Background Check System, or NICS.
The net effect is that Article 128 misdemeanor convictions may involve general courts-martial and bad conduct discharges, but may still not be entered in the national database to flag a NICS search. (Kelley reportedly cracked the baby’s skull, which raises the additional question for me why this was a misdemeanor conviction and not a felony. For that, the Air Force probably owes Congress an answer.)
This is something that can be corrected with a procedural change. It sounds like military procedure in this regard needs to be updated, to ensure that any Article 128 conviction that involves domestic violence is entered in the federal database.