Going to Court Against the Pentagon

The old saw that “you can’t fight city hall” is getting an update this week.

The mayors of New York, Philadelphia and San Francisco have filed suit to force the Defense Department to enforce its own system of reporting to the national background check system about individuals disqualified from owning guns.

The lawsuit was brought in response to the massacre perpetrated by a former Air Force member in which 26 people were shot to death Nov. 5 in a Sutherland Springs, Texas, church. The gunman, Richard P. Kelley, had been convicted of assaulting family members in a 2012 court martial and should not have been allowed to purchase a gun.

That case alone might not have prompted this type of legal action, but it has emerged that the oversight was not at all rare; it’s something that’s been happening with alarming frequency.

The cities claim that the armed forces are systematically failing to do its job of flagging potentially violent people. The Air Force failed to submit records in about 14 percent of cases; the Navy and Marine Corps in 36 percent of cases; and the Army fell down on the job in about 41 percent of cases.

The armed forces’ own inspector generals have been registering the same complaint for years. In a 2015 report, and another one issued just a few weeks ago, investigators said that nearly a third of court-martial convictions that should have barred defendants from gun purchases had gone unreported. Acting inspector general Glenn A. Fine told a Senate committee earlier this month that “there’s really no excuse” for it.

That simplifies matters considerably. There’s no wall of denials and obfuscations to batter down; no need to prove negligence. You can fight city hall when city hall doesn’t fight back.

What the cities want from this lawsuit is some kind of insurance that the armed forces will do their job in the future, to reduce the possibility of more massacres.

In fact, the Air Force says it has already made changes to fix the system. For example, it now requires officers in the chain of command to verify that criminal history reporting requirements have been met in every case. Additional training is being provided to make sure they have the know-how for the task of oversight.

That certainly sounds encouraging. But is it enough? Will promises of self-correction suffice to reassure the public that the risk to them from unreported cases of people who shouldn’t get guns has been seriously reduced?

The cities, rightfully so, are not satisfied with the Air Force pledge to do better. They are requesting an injunction and judicial oversight to guarantee the Defense Department’s compliance with its obligation to submit these records.

“After 20 years of failure, outside monitoring by the courts is clearly necessary to guarantee that the reporting failures that led to the Texas church shooting never happen again. That’s exactly what this lawsuit aims to accomplish,” Adam Skaggs, chief counsel of the Giffords Law Center to Prevent Gun Violence, said.

This type of federal monitoring may not be as quixotic as it sounds. For example, the Justice Department has reported some success in watching over police departments in Los Angeles and other cities accused of discriminatory tactics or use of excessive force.

But there are no guarantees. Even if the courts agree to create such a regime — another layer of oversight on top of the Pentagon’s inspector general — who will oversee the judiciary? Who will make sure that they make sure that the military does its job?

Ultimately, the system is only as good as the people who operate it, whether they be military officers or judges or, for that matter, the elected occupants of city hall.

The Air Force has the right idea in enlisting more senior officers in the process and adding on more training. Bureaucratic oversight is a skill on its own, and efficient handling of paperwork, however routine and boring, cannot be done without. The public safety depends on the reliable performance of such routine, unglamorous tasks. But the price of vigilance is vigilance; and the price of negligence might be another Sutherland Springs, chas v’shalom.

But something more is called for. We have seen too many times how mass killings and terrorist attacks could have been prevented, if only the people charged with analyzing data and acting on intelligence had done their jobs.

All it takes is for one person in the chain to miss a report or fail to file, and the consequences could be death and destruction of innocent people.

What is called for is an ethic of oversight, a zeal for getting the job done and getting it done right. That requires more than training in bureaucratic or technical skills; it means changing attitudes, inculcating a sense of responsibility at all levels. That’s much harder, and it will take time. But lives depend on it.