Just before the start of the new year, the cities of New York, Philadelphia, and San Francisco continued a growing trend, popular in matters of legal authority, that began with last year’s fight over sanctuary jurisdictions: They sued the federal government.
In their recently filed compliant, the three cities asked a federal district court in Virginia to order the military to comply with a federal statute requiring federal agencies (including the military) to inform the FBI when the agency “has a record demonstrating” that a person has, among other things, committed a crime that prevents him or her from possessing a firearm.
In November 2017, Devin P. Kelley killed 26 people at a church in Texas using an assault-style rifle he purchased. While in the Air Force he was convicted of assault and therefore ineligible to purchase a gun. The Air Force failed to report his conviction to the FBI who would have entered it into the National Crime Information Center (NCIC) database, which is used to do background checks for gun sales.
The cities are suing the Department of Defense, Air Force, Navy, Army, and a number of their high-level officials. Evaluations from 1997, 2015, and 2017 indicate all three branches of the military have done a poor job of reporting to the FBI service members’ criminal convictions. A Department of Defense Inspector General report found that between January 1, 2015 and December 31, 2016, Air Force compliance was 14 percent; Navy was 36 percent; Army was 41 percent; and Marine Corps was 36 percent.
All three cities use the NCIC database. New York and Philadelphia are required by state law to process permit applications for guns. Both cities conduct background checks; Philadelphia is required to do so by state law. San Francisco is required by state law to seize firearms at the scene of domestic violence incidents.
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The cities argue they “may have unwittingly issued permits or licenses to possess and/or carry a firearm; may have unwittingly returned firearms to individuals who should not have received them; and/or will continue to do so in the future, because of Defendants’ long-standing and ongoing systemic failures to comply with their reporting obligations.”
The cities have brought their lawsuit pursuant to the federal Administrative Procedures Act which authorizes federal courts to “compel agency action unlawfully withheld or unreasonably delayed.”
The cities don’t ask the court to award them any money. Instead they want the court to order the military defendants to comply, both prospectively and retrospectively, with the statute requiring them to inform the FBI of records they have that indicate a member of the military cannot possess a firearm.
The federal government has not yet had a chance to respond to the cities’ complaint, which was filed on December 26.
About the author: Lisa Soronen is the executive director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.