by Lisa Soronen, executive director, State and Local Legal Center 

During 2017, New York, Philadelphia, and San Francisco continued the trend of cities suing the federal government, which began with the sanctuary jurisdictions executive order.

In their recently filed complaint, these 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 Federal Bureau of Investigation (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; the FBI would have entered this information into the National Crime Information Center (NCIC) database 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 their 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, 36 percent; Army, 41 percent, and Marine Corps, 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, and San Francisco is required by state law to seize firearms at the scene of domestic violence incidents.  

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 haven't asked 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, 2017.