Pentagon defeats US cities' appeal over gun check flaws: court
Texas church shooter Devin Patrick Kelley (

A federal appeals court on Wednesday rejected an effort by New York City, Philadelphia and San Francisco to require the Pentagon to do a better job of reporting service members who were disqualified from owning weapons to a national background check system.

By a 3-0 vote, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia said judges lacked jurisdiction under the federal Administrative Procedure Act to compel the Department of Defense to fix what the cities called a “broken” reporting system, and supervise its progress.

The cities sued seven weeks after a mass shooting on Nov. 5, 2017, when former Air Force member Devin Kelley killed 26 people at a Sutherland Springs, Texas, church before killing himself.

Kelley, 26, had been convicted in a 2012 court martial of assaulting his wife and stepson and should not have been allowed to possess weapons. But his conviction had not been entered into the National Instant Criminal Background Check System.

The cities said the Pentagon had failed to report some 15,000 current or former military personnel who could not own guns because of court martial convictions or dishonorable discharges, and that this undermined their ability to fight violent crime.

Writing for the appeals court, Circuit Judge J. Harvie Wilkinson acknowledged the challenges that cities and towns face in protecting the public from “horrific” violence that is “far too often” committed by people who should not have firearms.

“The municipalities’ efforts to combat these threats are commendable,” Wilkinson wrote. “The APA, however, does not permit their efforts to include judicial supervision of the myriad programmatic workings of the federal government.”

Spokesmen for New York’s and Philadelphia’s law departments had no immediate comment. San Francisco’s city attorney did not immediately respond to requests for comment.

The U.S. Department of Justice, which represented the Pentagon, did not immediately respond to a request for comment.

Wednesday’s decision upheld an April 2018 ruling by U.S. District Judge Claude Hilton in Alexandria, Virginia.

The case is City of New York et al v U.S. Department of Defense et al, 4th U.S. Circuit Court of Appeals, No. 18-1699.

Reporting by Jonathan Stempel in New York; editing by Bill Berkrot

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