NOEL KING, HOST:
Three large U.S. cities are suing the Department of Defense. Here's why - they say the military is not complying with a law that requires it to report service members with criminal histories to the FBI. They say this kind of reporting would prevent crimes like last month's mass shooting in a church in Texas. Now, the shooter, Devin Kelley, was convicted of assaulting family members in a 2012 court martial. No one ever reported that to the national background check system, so no one stopped him from buying the rifle, which he used to kill 26 people. Kenneth Taber is an attorney. He's representing the cities of New York, Philadelphia and San Francisco, and he's on the line with us from New York. Good morning, Kenneth.
KENNETH TABER: Good morning. Thank you for having me.
KING: We're glad to have you. How widespread is the problem of servicemembers' criminal histories not being reported?
TABER: Well, it turns out that the Kelley case is just the tip of the iceberg. We now know from reports from the inspector general of the Department of Defense himself that this is a problem that goes back 20 years and involves thousands upon thousands of instances in which reports that should have been made weren't.
KING: OK. If it's a law that the military has to report servicemembers with criminal histories to the FBI, why is the military not just following the law?
TABER: That's a very good question, and our litigation will very much try to get to the bottom of that. We know that the inspector general testified to the Senate about three weeks ago that he thought the problem was that the recommendations that have been coming from his office for two decades were simply not taken seriously enough - pretty astonishing.
TABER: But that was the testimony.
KING: There was, of course, the horrific shooting in the church in Sutherland Springs, Texas. And I wonder, are there other cases of gun violence that can be traced back to a failure to report?
TABER: Almost certainly the answer is yes, but we don't know that because it's not the kind of thing that gets followed up. But regrettably, we've become inured to the notion of individual violence. There could be who knows how many instances of individual violence that never get reported, that never garner media attention and that involve exactly the same fact pattern. We just don't know.
KING: The cities that are suing - New York, Philadelphia, San Francisco - I'm curious - why those three? Why not a place like Sutherland Springs, Texas, which was directly impacted by this failure to report? Did you - did you try to get Sutherland Springs on board?
TABER: We didn't, and it's because the real issue here is not where the prior church shooting occurred. It's where the harm from the gap in this system, the serious gap in this system, is being felt. And where it's being felt are in the major U.S. cities that every day go into that FBI background check system in order to determine whether to issue permits, whether to allow gun transactions to go forward, whether to return guns to people involved in instances of domestic violence. They are the people who every day suffer the harm of this grossly incomplete and inaccurate system.
KING: So what are you hoping this lawsuit achieves?
TABER: Well, we're hoping that the defendants will agree with us that this is a serious problem that needs to be addressed by the courts with judicial supervision and a judicially crafted solution.
KING: All right. So there needs to be oversight is what you're saying.
TABER: Absolutely. We've had two decades without oversight, and the results are clear. The system has failed.
KING: Attorney Kenneth Taber, thank you so much for your time.
TABER: Thank you.
KING: Attorney Kenneth Taber is a partner with Pillsbury Winthrop Shaw Pittman. NPR asked the Defense Department for comment. They referred us over to the Department of Justice. The DOJ declined to comment. Transcript provided by NPR, Copyright NPR.