— Sen. Ted Cruz (R-Tex.), in an interview on “Hannity” on Fox News, March 23
In the wake of a mass shooting in Boulder, Colo., Cruz says legislation he offered in 2013 could have prevented one of the deadliest such events in U.S. history, except Democrats “filibustered it, demanded 60 votes.”
The claim is highly misleading.
The man who committed the 2017 mass shooting in a Texas church, killing 26 and wounding 22, passed federal background checks and was able to purchase firearms because of a string of errors at the Air Force that Cruz’s legislation would not have prevented. Let’s take a look.
In response to the 2012 school shooting in Newtown, Conn., Democrats and some Republicans proposed expanding background checks to cover more types of gun sales and banning the sale of some semiautomatic weapons. The Safe Communities, Safe Schools Act of 2013 was the most significant gun-control bill to move through Congress in decades, but it drew fierce opposition from the National Rifle Association, failed to muster the 60 votes needed to overcome a Senate filibuster and eventually died.
Amendments aplenty were proposed and defeated. The one from Cruz and Sen. Charles E. Grassley (R-Iowa) would have removed the core of the gun bill: the expanded background checks. The Grassley-Cruz plan instead proposed more prosecutions of gun buyers who falsely stated their criminal histories during the background-check process.
Among other changes, the Cruz amendment would have reduced penalties for states that neglected to submit records to the FBI’s centralized database for background checks of gun buyers, the National Instant Criminal Background Check System (NICS). The Cruz proposal also would have capped federal grants to improve states’ reporting procedures for the FBI database at $20 million, down from $100 million, and allowed for the interstate sale and transport of firearms.
The Sutherland Springs shooter, Devin Patrick Kelley, had pleaded guilty to domestic violence assault in a 2012 court-martial. Prosecutors alleged that in June 2011 and April 2012, he unlawfully struck, choked, kicked and pulled the hair of his wife and struck her young son “with a force likely to produce death or grievous bodily harm.” Kelley was reduced in rank and released from the Air Force with a bad-conduct discharge in 2014.
The Air Force prosecutors had argued for a sentence of four years so Kelley might get his anger issues under control, rather than the 12 months of confinement and bad-conduct discharge that he received from the military jury, according to the trial transcript.
Federal law prohibits people convicted of any domestic violence offense from possessing or buying firearms. The state of Texas had denied Kelley’s application for a license to carry a handgun, but one is not needed to buy firearms under state law.
The Air Force was required to report Kelley’s 2012 conviction to the FBI — that would have added him to the NICS database and blocked his gun purchases.
Air Force officials missed six opportunities to report Kelley and have him added to the NICS database, a string of protocol failures that “had drastic consequences and should not have occurred,” according to the Defense Department inspector general’s office, which investigated the lapses and issued a report in 2018.
First, Kelley was investigated in 2011 by the Air Force when his 11-month-old stepson wound up in the hospital twice in one week. Kelley was fingerprinted and officials found probable cause that he had assaulted the child, but special agents “did not submit the fingerprints to the FBI [Criminal Justice Information Services Division], as required” by Defense Department policy.
Second, Kelley was investigated in 2012 for assaulting his wife. The inspector general could not determine whether he was fingerprinted in this interview, as required by department policy, but found that no fingerprints were passed on to the FBI.
Third, during an interview in 2012 regarding the assault of his stepson and wife, and also about an absence without leave, Kelley was not fingerprinted by Air Force agents, the inspector general found.
Fourth, when Kelley was convicted in the general court-martial in November 2012, his fingerprints once again should have been taken and sent to the FBI under Defense Department policies. Once again, they weren’t submitted.
Fifth, once Kelley had been convicted in November 2012, the Air Force should have sent a “final disposition report” to the FBI noting the outcome of the case. “This was not done,” the inspector general said.
Sixth, when another unit of the Air Force received Kelley’s final disposition report in December 2012, the special agent in charge “did not submit the fingerprints or the final disposition report to the FBI” and yet “electronically certified that Kelley’s fingerprints and the final disposition report were sent to the FBI.” (How do you legislate a remedy for this? Law enforcement agents already are required to submit accurate and complete information.)
“The USAF’s failure to submit Kelley’s fingerprints and final disposition information allowed Kelley to pass the federally mandated background checks and to purchase four firearms from Federal Firearms Licensed (FFL) dealers,” the inspector general’s report says. “Kelley used three of those four firearms on November 5, 2017, to kill 26 people and wound 22 others at the First Baptist Church of Sutherland Springs, Sutherland Springs, Texas.”
When Kelley purchased one of those weapons, a semiautomatic rifle, at an Academy Sports + Outdoors store in San Antonio in 2016, he falsely indicated on a federal form (ATF Form 4473) that he did not have a criminal history that barred him from buying guns. The Cruz amendment from 2013 would have encouraged the Justice Department to prosecute false claims such as this one on Kelley’s form.
However, Kelley’s form would not have raised red flags by itself. The Air Force still would have needed to submit his fingerprints and information to the NICS database. That’s the key element that went missing here.
We contacted Cruz’s office. What could any legislation do to remedy the string of failures at the Air Force?
“Grassley-Cruz would have required federal agencies to report to Congress regarding their relevant records and the steps they were taking to make their records available to the NICS system, which does background checks,” Cruz spokesman Steve Guest said. “This would have greatly increased the chances that the records for the Sutherland Springs shooter would have been in the NICS system and thus prevented him from buying a gun in the first place.”
The Cruz amendment language in question “was a near replica of President Barack Obama’s Jan. 16, 2013, memorandum to the Justice Department, which officials were already trying to implement,” according to PolitiFact. (And yet, notice how on Fox News, Cruz blames the “Obama Air Force” for letting Kelley slip through the cracks.)
Some changes in Cruz’s amendment also were included in a bill called the Fix NICS Act, a proposal from Sens. John Cornyn (R-Tex.) and Chris Murphy (D-Conn.) that was folded into the omnibus spending bill that President Donald Trump signed in 2018. Federal law now imposes penalties on agencies that do not report convictions and other relevant records to the FBI’s NICS database, among other changes. By the end of 2019, more than 6 million records had been added to the NICS database. (Cruz voted against the 2018 spending bill.)
“The current version of Grassley-Cruz doesn’t duplicate what’s already passed but maintains many of the original reforms that would protect the Second Amendment for law-abiding citizens and keep guns out of the hands of criminals,” Guest said.
The Pinocchio Test
We just don’t see how the changes Cruz proposed in 2013 would have prevented the Sutherland Springs shooter from buying the firearms he used. In fact, Cruz’s proposal would have scrapped an expansion of background checks and cut back some of the incentives and penalties the federal government uses to ensure robust reporting of records to the NICS database.
Cruz’s amendment would not have prevented any of the six specific protocol failures at the Air Force that allowed Kelley to slip through the cracks. The record-keeping and reporting changes that Cruz’s office referenced already were being implemented by the Justice Department years before the shooting.
Had his amendment become law, Cruz says, there’s a “good chance” the Sutherland Springs shooting would not have happened. But what is this based on? A misleading read of his own legislation and what happened at the Air Force. Cruz earns Three Pinocchios.
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