Calling the Pentagon to Account


Two Fordham Law alumni are key members on a pro bono team representing the City of New York and other cities suing the Pentagon for its two-decades-long failure to report information about members of the military services previously convicted of crimes that disqualify them from firearms possession.

Matthew F. Putorti ’11 and Nicholas M. Buell ’13, attorneys at Pillsbury Winthrop Shaw Pittman in New York, drafted motions and preliminary injunction papers in the suit pitting New York, Philadelphia, and San Francisco against the Department of Defense, Air Force, Army, and Navy. Pillsbury teamed on the suit with the Giffords Law Center to Prevent Gun Violence, a national public interest law center dedicated to reducing gun violence.

The suit, filed in federal court on December 26, came about less than two months after a former Air Force airman shot and killed 26 churchgoers and wounded 20 more in Sutherland Springs, Texas. The gunman had been convicted of assaulting his wife and stepson in 2012 while serving in the Air Force, and was subsequently given a bad conduct discharge. He should have been blocked from purchasing a gun, as a result of his military record, but due to the Air Force’s failure to comply with a law requiring it to provide such information to the FBI, he was able to purchase an assault-style rifle, the suit alleges.

“As the Texas church shooting unfortunately illustrates, unless there’s 100 percent compliance it only takes one failure to report someone’s record for there to be serious, tragic consequences,” Putorti said.

The United States District Court for the Eastern District of Virginia is scheduled to rule on Friday, January 19, on the three cities’ motion for expedited discovery. If the court grants the motion and allows the plaintiffs to proceed with their requested discovery, the team featuring Putorti and Buell could depose several high-ranking military officials, including U.S. Secretary of Defense James Mattis and the secretaries of the Army, Navy, and Air Force. Mattis and the other military officials are listed as defendants in the suit.

The Department of Defense’s Inspector General recently admitted in testimony before the U.S. Senate that, “[T]he military services still do not consistently report … final disposition reports as required.” Such criticisms date back to the late 1990s and have also appeared in Pentagon reports, published in 2015 and 2017. For instance, a 2015 report contained information that nearly one in three court-martial convictions that should have barred defendants from gun purchases had gone unreported by the military.

The cities are seeking judicial supervision to ensure “gaps in reporting” don’t continue unabated. With judicial supervision comes the power of contempt of court, if armed services officials were to disregard court orders.

“The Pentagon knew about this for 20 years,” said Kenneth W. Taber, a partner in Pillsbury’s litigation practice and its lead counsel on the case. “The American public didn’t have a clue. The Texas church shooting brought this to the attention of the public at large.”

Due to the Pentagon’s failure to comply with the law, there’s no way of knowing if Sutherland Springs is the only instance in the past two decades where a person with a military conviction shot someone with a gun they should have been banned from obtaining, Taber added.

“The background system is the backbone of efforts to make sure guns don’t get into dangerous hands in this country,” Taber continued. “We’ve identified one serious flaw in the system, but there are other flaws. It would be terrific if this suit resulted in a broader effort to cure those flaws as well.”

Taber previously represented the city of New York in Pillsbury’s landmark litigation for New York City to stem the flow of illegal guns from out of state; he also serves on the board of the Giffords Law Center. After Taber and Adam Skaggs, the center’s chief counsel, spoke and agreed that New York would make an ideal plaintiff in a lawsuit, Taber reached out to city officials he knew to gauge interest. From there, Taber invited Putorti, who serves on Pillsbury’s pro bono committee, to work on the suit. Putorti suggested Buell, who joined the firm during the summer, might also be interested.

Both Putorti and Buell praised Fordham’s faculty and staff for instilling in them a desire to serve others.

Putorti credited Tom Schoenherr, assistant dean of the Public Interest Resource Center, Elisabeth Wickeri, executive director of the Leitner Center for International Law and Justice, and Nitza Escalera, assistant dean of student affairs and diversity initiatives, for playing major roles in strengthening Fordham’s social justice ethic.

“Part of the Fordham Law ethos instilled in students is to do good in whatever they’re doing after Fordham,” Putorti said. “Pillsbury, as a firm, has a great commitment to pro bono work. Those two things combined—legal education rooted in social justice and a firm that supports serious pro bono efforts including impact litigation—give us an opportunity to be involved in pathbreaking litigation that aims to keep the American public safe.”

While working with Putorti on the case, Buell was inspired to join the Law School’s Recent Graduates Committee. Putorti serves as an RGC co-chair.

“I’m hoping to become more involved in their activities and give back to the community,” Buell said, adding he is always surprised by the breadth of the Fordham Law network. For instance, Fordham Law alumna Christine Smith ’90, staff attorney and pro bono director for the Giffords Law Center, has provided support on the suit against the Pentagon.

Taber also praised Fordham Law’s ethos of service. He worked closely in 2004 with longtime Fordham Law Dean John Feerick, who served as a judicially appointed referee in the Campaign for Fiscal Equity suit over the funding of the New York City school system. Feerick was one of three court-appointed panelists responsible for scrutinizing the city’s efforts to comply with an order to provide students with sound basic education. Taber wrote a report that became the panel’s findings.

“It’s easy to see how that kind of public service is at the core of what Fordham Law School does because of people like John Feerick,” Taber said.


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