Crime & Justice

The Texas church shooter should have been legally barred from owning guns

Law enforcement officials gather near the First Baptist Church following a shooting on November 5, 2017 in Sutherland Springs, Texas.
Law enforcement officials gather near the First Baptist Church following a shooting on November 5, 2017 in Sutherland Springs, Texas.
Erich Schlegel/Getty Images

Devin Patrick Kelley had an assault-style rifle and two handguns — all purchased by him, according to federal officials — when he drove to a small Texas church on Sunday, opened fire and killed at least 26 people.

He also had a known record of domestic violence. In 2012, while he was in the U.S. Air Force, he was court-martialed for assaulting his then-wife and their child. Under federal law, his conviction disqualified him from legally possessing a firearm.

Retired Col. Don Christensen, who was the chief prosecutor for the Air Force at the time of Kelley's general court-martial, tells NPR the case was serious.

"He fractured his baby stepson's skull," Christensen says.

Kelley accepted a plea deal, pleading guilty to a charge of assault on his wife and to a charge of "intentionally inflicting grievous bodily harm" on the child, Christensen says. His crimes were punishable by up to 5 years confinement (the military equivalent of a prison term). As part of the deal, Kelley received an 18-month cap on his confinement, and was ultimately sentenced to 12 months.

Kelley's punitive discharge — a bad conduct discharge — did not prohibit him from owning a gun, as a dishonorable discharge would have.

But under federal law, anyone convicted of "a crime punishable by imprisonment for a term exceeding one year" is prohibited from possessing a firearm. The same is true for anyone convicted of "a misdemeanor crime of domestic violence."

Kelley's conviction qualified under both categories, Christensen says.

An official at the Pentagon tells NPR's Tom Bowman that a mistake resulted in neither the arrest nor the conviction being listed in the National Instant Criminal Background Check System, the database that would have flagged him as ineligible to purchase a firearm.

"This was mishandled by the Air Force Office of Special Investigations at Holloman Air Force Base in New Mexico, where Kelley was serving when he was arrested," Tom reports. "An investigation is now underway, and the Air Force is taking it very seriously, said the source."

Kelley purchased four guns over a four-year period, according to federal officials; all those purchases were made after his court-martial conviction.

NPR's Martin Kaste reports that Academy Sports & Outdoors, a store that sold Kelley guns, says it ran a background check on Kelley twice in the past two years. Kelley passed each time, the company says.

If Kelley's convictions were never uploaded into the system, that could easily explain how he passed. But even if they had been uploaded, there might still have been trouble getting information into the right hands — there's a sort of language barrier between military and civilian justice systems, Christensen says, with different terms for the same kinds of crimes. If the military described a general court-martial for assault, with sentence of one year, the civilian authorities might "never realize" it was a domestic violence conviction punishable by five years, he says.

In general, there are some "gaping holes" in the current background check system, as NPR's Danielle Kurtzleben reported last year, which can allow people who should fail background checks to buy guns anyway. And if Kelley has purchased a gun from a private seller, he wouldn't have had to pass a background check at all, Martin notes.

Meanwhile, Texas Gov. Greg Abbott says Kelley applied for a license to carry a gun and was rejected, Martin reports. He notes that Texas requires a background check but also has additional training and tests that Kelley may not have completed.

As NPR has previously reported, mass shootings are often linked to domestic violence. In fact, in a majority of mass shootings, the shooter's current or former partner, or another family member, is among the victims.

Texas Department of Public Safety Director Freeman Martin says Kelley was found dead in a vehicle a few miles from where the attack took place. He said it was not immediately clear whether Kelley died of a self-inflicted gunshot wound or whether his fatal injuries were the result of a gunfight with a resident near the First Baptist Church in Sutherland Springs.

At about 11:20 a.m. local time, a suspicious man was reported near a convenience store across the street from the church. Dressed in black tactical gear and toting an assault-style rifle, the man walked toward the church as a service was underway.

The gunman opened fire even before he entered the building, unloading bullets into the walls from outside. Then, he stepped into the house of worship and continued his attack, killing 23 parishioners inside. Two people were killed outside the church, and another person died on the way to the hospital.

Officials say that not long afterward, Kelley left the building and headed toward his car — at which point a local resident, having observed the attack, drew a weapon of his own and fired on Kelley. Now under fire, Kelley dropped his rifle on the ground and attempted to escape by driving away.

Eventually, he was found dead in his vehicle, crashed off the road in a neighboring county. Authorities believe Kelley died of a self-inflicted wound, sitting beside two other guns.

Now, investigators are seeking to understand at least one important question: how, exactly, Kelley obtained those guns. According to federal agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives, Kelley purchased four weapons over the span of four years — at a rate of one gun a year.

Kelley was a resident of New Braunfels, a suburb of San Antonio, according to public records and he had attended New Braunfels High School, a classmate confirmed to NPR member station KUT reporter Mose Buchele.

He had been enlisted in the U.S. Air Force and was based in New Mexico from 2010, where he reportedly served in logistics readiness at Holloman Air Force Base until receiving a bad conduct discharge in 2014, Air Force spokeswoman Ann Stefanek tells NPR in an email.

She says he was court-martialed in 2012 for assaulting his wife and child, sentenced to confinement for one year and reduced in rank to E-1.

The Express News says that Kelley unsuccessfully appealed his conviction in a military court in 2014.

The newspaper reports:

A law enforcement official told the San Antonio Express-News that Kelley wasn't believed to be a member of First Baptist Church, but had ties to the church through family members.

In Comal County, Kelley only had faced minor traffic offenses in recent years. Kelley was licensed by the Texas Department of Public Safety as a security guard, and the agency's website shows he worked at Schlitterbahn Waterpark and Resort in New Braunfels.

A spokeswoman for the park did not respond to questions.

At Sunday's news conference, TDPS Director Martin said there was "a lot of work to be done" in the investigation.

"Everybody here wants facts, wants information about what's going on," he said. "We'd love to provide you more. But if you came here wanting to know the motive behind the shooting, you're going to leave here disappointed."

This is a developing story. Some things that get reported by the media will later turn out to be wrong. We will focus on reports from police officials and other authorities, credible news outlets and reporters who are at the scene. We will update as the situation develops.