Close the FOID loophole
Monday, Apr 30, 2018 - Posted by Rich Miller
* Heritage Foundation on the Travis Reinking case…
Clearly, there are questions about how this suspect managed to avoid a criminal or mental health history that would have disqualified him from firearm possession under federal law. There are also questions about whether the revocation of his state firearms permit should have been reported to the FBI background check database.
Yet, in many respects, Illinois law worked exactly as intended, and a mentally ill individual who posed a risk of danger to himself or others was disarmed.
The problem, of course, is that neither current law nor any more restrictive laws could have prevented the suspect’s father from returning the firearms to his son, or from procuring new ones for him.
Um, I can think of a new law that would’ve prevented the father from returning those guns to his son: Don’t let a relative or friend hold weapons for somebody whose FOID card has been revoked.
And the Illinois law most certainly did not work “exactly as intended” or Reinking’s guns would’ve been taken away from him long ago.
* Journal Times editorial…
Reinking’s police record showed a history of recent aberrant behavior and the gun seizure recommended at the behest of federal authorities was clearly warranted.
Illinois lawmakers — and lawmakers in Wisconsin and elsewhere — should take note. Laws should be rewritten to require weapons in cases such as this be physically turned over to law enforcement, and released back to the owner only after a court determines that a thorough mental health evaluation has been done.
It should not be left to the judgment — or lack of judgment — of a family member or friend with a legitimate FOID card.
That law clearly failed the four victims of the Waffle House shooting. Close the loophole that allowed last week’s carnage.
* There’s also this idea from a Tribune editorial…
Another measure pending in Springfield would allow police to seize the guns themselves, not just the FOID, if a judge determined the owner posed a threat to himself or others. Six states already have so-called red flag laws, and Illinois is among 18 others considering them.
The measure pushed by Rep. Kathleen Willis, D-Addison, would allow a family member or law enforcement officer to petition a court for a gun violence restraining order against a gun owner whose behavior demonstrates it is warranted. The judge would have to find that an actual threat existed, not just a suspicion or a sinking feeling. The guns could be seized for up to a year, though the person could seek to terminate the order by showing the court that the threat no longer existed.
Such a restraining order would apply narrowly to individuals whose behavior posed a clear threat. It also preserves those individuals’ due process rights.
- wordslinger - Monday, Apr 30, 18 @ 3:32 pm:
The sheriff had no authority to “give” Travis Reinking’s guns to anyone, including his father. Tazewell County might end up a deep pocket defendant on this one.
- Roger - Monday, Apr 30, 18 @ 3:40 pm:
There is no loophole, however the father should be arrested and charged as he violated the following. Don’t make new laws enforce the current ones. (430 ILCS 65/3) (from Ch. 38, par. 83-3)
Sec. 3. (a) Except as provided in Section 3a, no person may knowingly transfer, or cause to be transferred, any firearm, firearm ammunition, stun gun, or taser to any person within this State unless the transferee with whom he deals displays either: (1) a currently valid Firearm Owner’s Identification Card which has previously been issued in his or her name by the Department of State Police under the provisions of this Act;
- Last Bull Moose - Monday, Apr 30, 18 @ 3:44 pm:
How does this connect to the ability to have a family member held for an involuntary psych evaluation? Does this permit action with less evidence?
- d.p.gumby - Monday, Apr 30, 18 @ 3:46 pm:
Has the issue of Travis’ residence been resolved? there was some question that if he was a resident of Tenn., he was “entitled” to the return of the guns? Issue is sloppy gun laws all around.
- Demoralized - Monday, Apr 30, 18 @ 3:50 pm:
==There is no loophole,==
Why should he have been given the weapons in the first place? The weapons should have remained in the custody of the police.
- Rich Miller - Monday, Apr 30, 18 @ 3:52 pm:
===There is no loophole===
You must be blind.
- Amalia - Monday, Apr 30, 18 @ 4:11 pm:
Close it. and other states, step up. the kid who took the gun away from the shooter has gotten lots of donations and he’s giving it to the families of those who died. welp. this case is hitting really hard at my spirit.
- Anon - Monday, Apr 30, 18 @ 4:15 pm:
Roger you are crystal clear on this issue.
- Anonymous - Monday, Apr 30, 18 @ 4:20 pm:
I must sight impaired as well.
- Demoralized - Monday, Apr 30, 18 @ 4:22 pm:
Perhaps one of the Anonymouses or Roger can explain why you believe the weapons should have been turned over to his father in the first place.
- Thomas Paine - Monday, Apr 30, 18 @ 4:36 pm:
i believe the sheriff overstepped his authority giving the guns to dad. Dad is not the owner of the guns. Law enforcement should have held the guns until he got his FOID card back and reclaimed them.
That said, the red flag law is a fine idea. I would not comsider this a loophole, however. The NRA has been pretty steadfast in its opposition to any gun law that allows weapons to be confiscated without a criminal comvicti since Heller.
- Jocko - Monday, Apr 30, 18 @ 4:41 pm:
“Jeffrey Reinking (a FOID card holder) was ADVISED that he needed to keep the weapons secure and away from Travis. Jeffrey stated that he would comply.”
In my mind, the advice (and the tacit acceptance of that advice) is an enormous loophole.
- RNUG - Monday, Apr 30, 18 @ 6:26 pm:
== The NRA has been pretty steadfast in its opposition to any gun law that allows weapons to be confiscated without a criminal comvicti since Heller. ==
They have been consistently opposed to seizure without due process. If you had to go to court prior to seizure, they may be OK with that.
- revvedup - Monday, Apr 30, 18 @ 7:01 pm:
Illinois tried passing the so-called “Lethal Violence Order of Protection” law, but it was an ex parte (one-sided, not the gun owner in court) hearing, and the gun owner lost pre-seizure Due Process rights. The proposal is rife for any anti-gun nut to harass a law-abiding gun owner by dragging them into court, and there were NO criminal penalties in the proposed law for false complaints.
- blue dog dem - Monday, Apr 30, 18 @ 7:44 pm:
In the states history. I cannot find evidence of any instance wherein an individual who lost their FOID card, petitioned the courts, and got their guns back. I am not saying it hasn’t happened. Just looking for data.
- Roger - Monday, Apr 30, 18 @ 9:29 pm:
To Demoralized: I never said the firearms should have been turned over to his father, I do believe that the police made a mistake. They should have remained in the hands of the confiscating authority until the incident was resolved. Being an NRA member I oppose the confiscation of firearms under some of the laws proposed in Illinois because your neighbor could get mad because your dog crapped in his yard and you didn’t get it cleaned up. All he would have to say is I think my neighbor is going to do something crazy and he has firearms. Next thing the police show up and take your property just because you have an idiot for a neighbor. If everyone would step back and enforce the laws on the books then their would be a lot less crime. Chicago has the toughest laws in IL. but still has the most crime, can someone please explain that? Maybe Demoralized can?
- Roger - Monday, Apr 30, 18 @ 9:32 pm:
I tried to explain what I thought to Demoralized but apparently the moderator thought different
- Roger - Monday, Apr 30, 18 @ 9:38 pm:
I’ll try again Demoralized. I never said the firearms should have been turned over to the Father. Law enforcement definitely made a big blunder there. That being said this Red Flag law that is being proposed in Illinois is a gotcha law. Your neighbor gets mad at you and he call the police and say my neighbor is going to do something crazy and he has firearms. The police show up and it’s a lose lose situation for you. The neighbor will never come out and say he made it up as that’s filing a false police report and you still lose. Enforce the laws on the books and calm down. Chicago has the toughest gun laws in the state and the highest crime rate can someone explain that?
- wordslinger - Monday, Apr 30, 18 @ 10:32 pm:
So maybe the Lake County sheriff won’t give this little stormtrooper-wannabe’s guns to his daddy.
- Todd - Tuesday, May 1, 18 @ 8:53 am:
NRA opposed laws that took the guns first then said you can prove your ok to get them back.
The law in question now has some serious court challenges to it.
The big thing Willis wants is the ex Parte orders. Let the judge hear hearsay evidence then make a decisions and let the defendant come back and prove their innocent.
Well this court just said that doesn’t work:
https://www.glasgowolsson.com/sites/default/files/docs/JudgeWilliamParkhurstOpinion.pdf
From the decision the remedies come provide no avenue for a defense the depravation of the right to keep and bear arms with no opportunity for a meaningful hearing.
That was a district court ruling witch the AG is now appealing to the State Supreme Court which binds that to all the other circuits.
That was from Kane COunty, now you have a 5th district appellate court in the 5th saying something similar about due process:
The issue is not case-specific but will broadly determine the rights of firearm licensees who are subject to ex parte orders of protection and the firearm suspension statutes. See In re Rita P., 2014 IL 115798, ¶ 36. This issue is of sufficient breadth and has a significant effect on the public as a whole so as to satisfy the public nature criterion. See In re Alfred H.H., 233 Ill. 2d 345, 357 (2009). Accordingly, the first criterion for review under the public interest exception is satisfied. ¶
http://www.illinoiscourts.gov/OPINIONS/AppellateCourt/2017/5thDistrict/5150398.pdf
As tot he storage of firearms, Law enforcement has limited space and for some agencies that might encounter a large collection, it would be a problem. On top of that you have the issue of condition and damage that may occur in the storage to some very expensive firearms.
For those reasons, law enforcement often has someone else keep them. the Father broke the law about transferring to someone without a FOID. Did go by the waiting period, another felony, did do the check on the FOID. So he has committed several felonies.
Remember that the revocation process does not just include mental health issues. Someone could loose their FOID due to a DV issue, or as in the one case an order or protection that was later rescinded. Cops don’t have room for all those guns. it simply makes sense to allow the individual to transfer them to somone else or sell them.
- Todd - Tuesday, May 1, 18 @ 8:59 am:
There are a pair of cases taking aim at the ex parte issues with FOID and so far the state is loosing.
https://www.glasgowolsson.com/sites/default/files/docs/JudgeWilliamParkhurstOpinion.pdf
http://www.illinoiscourts.gov/OPINIONS/AppellateCourt/2017/5thDistrict/5150398.pdf
The other issue is that people loose their FOID for all kinds of reasons, cops can’t store that many guns and the simple solution is to allow them to transfer them to someone else.
The father committed several felonies for transferring to someone without a FOID, not following the waiting period just for beginners. There are ample laws to address this, the solution is this guy should be doing about 10 years in jail.
- Anonymous - Wednesday, May 2, 18 @ 1:08 am:
Former NRA lobbyist Todd Vandermyde should teach a community college class at the trailer park about constitutional law. If only he cared as much about Otis McDonald, after NRA hijacked Washington, D.C. attorney Alan Gura’s appearance in front of the Supreme Court in 2010.
After McDonald v. Chicago, the U.S. Federal Appeals court in Chicago handed Moore v. Madigan to Vandermyde and ISRA executive director Richard Pearson, and they did the only thing they know how to do: cut deals with police unions, sell out every gun owner in Illinois, and lose.
Now Vandermyde cares about rights? Why would NRA and ISRA have any opposition to gun seizure by police? Vandermyde and concealed carry bill sponsor Rep. Brandon Phelps wrote forcible seizure for licensed citizens into their bill because the IL Chiefs and the state police wanted it. Police seizure was put in Phelps’ carry bill by the gun guys, not by Rahm Emanuel or Mike Madigan.