How the Waffle House Shooter Lost His Gun (and Got It Back)

April 24, 2018

TO: Members of the Media FROM: Lindsay Nichols, Federal Policy Director, Giffords Law Center DATE: April 24, 2018 RE: How the Waffle House Shooter Lost His Gun (and Got It Back)

Four people were killed and two others were injured after a gunman opened fire at a Nashville Waffle House early Sunday morning. News reports about Travis Reinking, the suspected shooter who was arrested on Monday, paint the picture of a man with a disturbing criminal history. In July 2017, Ranking was arrested by the Secret Service for trespassing near the White House. At the FBI’s request, Reinking’s Illinois firearms authorization was revoked, and four weapons — including the AR-15 style rifle used in the Sunday’s shooting — were seized. These facts left many wondering how the Waffle House shooter got his guns back again.

“One of the most glaring gaps in the nation’s gun laws is the lack of an effective firearms relinquishment policy. Few state legislatures have taken any meaningful steps to actually enforce their criminal gun restrictions by ensuring that armed offenders give up their firearms after they are convicted of serious crimes. This national problem is a collective failure, in spite of the fact that there is broad consensus across the ideological spectrum that such individuals must not have access to deadly weapons. Meaningfully and responsibly enforcing that principle means closing this reckless gap in our gun laws.”

– Keeping Illegal Guns Out of Dangerous Hands (Giffords Law Center Report)

The strongest relinquishment laws provide a formal procedure for law enforcement officers to remove and retain custody of firearms when a firearm owner becomes ineligible to possess them. Some state laws allow a third party, including a family member, to hold onto the guns when a person loses his or her gun eligibility. The shooting at the Waffle House in Nashville, Tennessee demonstrates the risks of such a procedure. It is often too easy for the person to retake possession of the guns through persuasion, coercion, or theft.

What We Know About the Waffle House Shooter

From CNN :

Reinking was arrested by the Secret Service for trespassing near the White House in July 2017.
Reinking said he wanted to meet with US President Donald Trump and told a Secret Service officer at the northeast entrance that he was a “sovereign citizen” who had a “right to inspect the grounds,” according to a Metropolitan Police Department incident report dated July 7, 2017.
He was charged with unlawful entry, an arrest report states, but the charges were dismissed after he completed community service.
At the FBI’s request, Reinking’s Illinois firearms authorization was revoked, and four weapons — including the AR-15 style rifle used in the Sunday’s shooting — were seized.
Authorities in Tazewell County, Illinois, later returned the seized weapons to Reinking’s father, who gave them back to his son, police said.
Authorities so far have recovered two weapons, including one found Sunday at Reinking’s one-bedroom apartment, police said. But they are concerned he may have the two others.
In May 2016, Reinking experienced a delusional episode telling first responders that he believed pop star Taylor Swift was stalking him, according to a police report.
Reinking’s family also told police he had made comments about killing himself.
But Reinking’s father apparently returned the weapons to Travis.

From USA Today :

Reinking’s father was present when those deputies came to confiscate the guns, Huston said. The father had a valid state authorization card and asked the police if he could keep the weapons. Deputies gave Reinking’s father the weapons, Huston said.
He was allowed to do that after he assured deputies he would keep them secure and away from Travis.

Background about Illinois Law on Removal of Guns

In Illinois, most firearm owners are required to possess a Firearm Owner’s Identification (FOID) card. The Department of State Police has the authority to revoke a FOID card if the holder loses his or her gun eligibility. A person who receives a revocation notice must :

Surrender his or her FOID card to the local law enforcement agency where the person resides. The local law enforcement agency must provide the person with a receipt and transfer the FOID card to the Department of State Police;
Complete a Firearm Disposition Record form which must disclose the make, model, and serial number of each firearm owned by the person, the location where each firearm will be maintained during the prohibited term, and if any firearm will be transferred to another person, the name, address and FOID card number of the transferee. A copy of this form must be provided to the person whose FOID card has been revoked and to the Department of State Police.

The person must complete these requirements within 48 hours of receiving the notice. A violation of these requirements is a misdemeanor. If a person who receives the notice fails to comply with these requirements, the local law enforcement agency may petition the circuit court to issue a warrant to search for and seize the FOID card and firearms in the possession of that person.

The Chicago Tribune reported last year that there are significant compliance problems in Illinois; though the state has a good law authorizing the State Police to revoke FOID cards from dangerous people, many jurisdictions often fail to follow through and remove the dangerous person’s weapons. In this case, it seems law enforcement was doing a better job but failed to anticipate that the gunman’s father would illegally transfer the relinquished firearms back to his son.

Clear and Present Danger Law

A law adopted in 2013 authorizes the State Police to revoke a person’s FOID card if it is found that the person’s “mental condition is of such a nature that it poses a clear and present danger to the applicant, any other person or persons or the community.” This appears to have occurred when the FBI requested that the State Police remove the shooter’s FOID Card.

Under the 2013 law, certain medical professionals, school administrators, and law enforcement officials must report to the Department of State Police within 24 hours when a person is determined to pose a “clear and present danger” to himself, herself, or to others. The State Police may then revoke the person’s FOID Card.

Transfer of Guns

Illinois has two laws relevant to the transfer of the shooter’s firearm from his father back to him. First, Illinois law generally requires a person who is transferring a firearm to conduct a background check on the person receiving the firearm. That provision would not apply to this case, however, because it includes an exception for gifts to family members. A second provision of Illinois law also generally prohibits transfers to people who lack FOID cards. That provision does not include an exception for gifts to family members, but only applies to sales and transfers of “ownership.” A loan or temporary transfer may not run afoul of this prohibition. In other states, similar prohibitions have proven difficult to enforce, because of the distinction between permanent transfers of ownership, and temporary transfers or loans. Defendants often claim they were “just borrowing” the gun. The strongest laws, such as those in California, Washington, and Oregon, apply to both permanent and temporary transfers of firearms.

The shooter’s father may also be guilty of “aiding and abetting” the shooter.

Assault Weapons

Illinois has no state law regulating or restricting assault weapons beyond those laws applicable to all firearms. A handful of local jurisdictions have local assault weapons bans, but Illinois law now prohibits any more local jurisdictions from enacting their own bans.

How These Laws Were Applied in this Case

It appears:

The State Police revoked the shooter’s FOID Card based on the FBI’s request using Illinois’s clear and present danger law.
The State Police or local law enforcement removed the guns.
There is no provision of Illinois law specifying what the State Police must do with the guns, or prohibiting them from transferring the guns to a family member, which they did.
The shooter’s father may have violated Illinois law by transferring the guns back to the shooter. Although Illinois’s background check requirement includes an exception for transfers “of ownership” to family members, a separate provision of Illinois law prohibits transferring ownership of a firearm to someone the transferor knows does not possess a FOID Card. (720 ILCS 5/24-3(k).) This provision does not have an exception for transfers to family members, but does not apply to temporary transfers (loans), making it difficult to enforce.

Solution to Save Lives – Extreme Risk Protection Order Bill

Extreme risk protection order laws, also known as gun violence restraining orders and gun violence protective orders, allow families and household members, as well as law enforcement officers, to petition a court to remove a person’s access to guns if he or she poses an imminent danger to self or others.

Illinois does not currently have a judicial process to remove firearms temporarily from someone who may be a danger to themselves or others, but who is otherwise qualified to possess firearms and has not threatened to commit a crime. There are bills currently pending in the Illinois General Assembly that would create this formal procedure for law enforcement officers and family members to obtain a court order. On February 28, 2018, an amendment to H.B. 772 (Willis) passed the Illinois Senate. That amendment would allow a law enforcement officer or family member to file a petition before a court for the removal of guns from a person who poses a risk of injury by possessing them. If the court finds the person is dangerous and has guns, it must order a law enforcement agency to remove firearms from the person for safekeeping.

Other States’ Laws on this Topic

It appears that the shooter has not been involuntarily committed to a psychiatric facility or otherwise “adjudicated” as mentally incompetent by a court or government body, so in most other states besides Illinois, he would not have been prohibited from owning or acquiring guns. This emphasizes the need for risk-based removal laws and ERPOs and the importance of ensuring that people who are subject to those removal/ERPO laws because they are a clear danger with a gun actually relinquish their guns to a licensed dealer or law enforcement, instead of a friend or family member.

California has a unique program called the Armed and Prohibited Persons System (APPS) program, which sends law enforcement officers to proactively remove firearms from people who have become prohibited from possessing them. This program is only possible because California is one of the few states that makes firearm sale records available to state law enforcement in a central, searchable database. When the State DOJ learns that someone has become subject to an ERPO or domestic violence restraining order, for instance, they can also instantly check whether that person has acquired guns. If the prohibited person does not sell or transfer those guns as required by law, California law enforcement can send teams to knock on their door and remove their illegal guns.

State laws for the removal of guns from ineligible people are rare and filled with loopholes. Several states, including Massachusetts and Connecticut, have laws similar to Illinois. Pennsylvania has a law that does not provide any law enforcement supervision for the removal of guns, but does specify that they cannot be transferred to a member of the person’s household.

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For nearly 25 years, the legal experts at Giffords Law Center to Prevent Gun Violence have been fighting for a safer America by researching, drafting, and defending the laws, policies, and programs proven to save lives from gun violence.