The Waffle House Incident
Homicides in a Gun Free Zone – Fault without Liability
On Sunday April 23, 2018, a nude assassin walked into a gun free zone. This one happened to be a Waffle House. Waffle House reportedly has a corporate policy that guns are banned at its properties. Apparently, the nude, potentially mentally ill, either did not see or could not read the sign. He entered the property and now 4 people are dead, 2 more injured and one is acclaimed a hero because he made the life-choice to act rather than being yet another fatality statistic.
The common characteristics are recurrent. An assassin. The assassin is frequently mentally ill and/or increasingly aligned with known terrorists organizations. A weapon of some sort (we have seen firearms, but also knives, crock pots, explosives, and motor vehicles). Finally, it’s a gun free zone.
In Tennessee, there are some places that are gun free zones because of the legislature. We have had a Republican controlled legislature for 8 years and there should be fewer of these but that does not appear to be an established fact.
In addition, this same Republican legislature has protected laws which allow property owners to declare their properties as “gun free zones”. While a property owner may have the discretion to make certain decisions regarding the use of their property, there are many factors to consider. One is that the Republican legislature has left in place laws which impose severe criminal penalties on the violation of such private choices.
In 2016, Sen. Dolores Gresham and Rep. Jeremy Faison introduced legislation (SB1736/HB2033) that was hailed by many across the nation as a good bill. The purpose of the bill was described as an effort to “balance the right of a handgun carry permit holder to carry a firearm in order to exercise the right of self-defense and the ability of a property owner or entity in charge of the property to exercise control over governmental or private property.”
In order to achieve that balance, the legislation would have imposed a duty on the property owner or operator who decides to make their property a gun free zone to “assume absolute custodial responsibility for the safety and defense of the permit holder while on the poster property…” That is, the legislation would have made the operators or owners of gun free zones financially responsible for the safety of their patrons.
What happened evidences the problems that Tennessee has experienced under the last 8 years of Establishment Republican leadership. Sen. Gresham’s bill ran into severe opposition from Legislative leaders who were apparently more interested in protecting businesses than the lives of citizens.
The details of what occurred behind the curtains of Legislative leadership’s “negotiations” are not well known … but the results are.
As a result of the clear preference for Big Business and Big Government over the rights of citizens, Legislative leadership insisted that the legislation be entirely rewritten. The effort to balance the rights of citizens and to impose property owner responsibilities for making their property “death traps”, uh, “gun free zones”, almost immediately disappeared.
Instead, the bill was deleted and entirely rewritten. The rewritten bill likely does more harm than good.
What the rewritten bill provided is that a property owner who could create a gun free zone but elects not to do is “immune from civil liability with respect to any claim based on such person’s, business’s, or other entity’s failure to adopt a policy that prohibits weapons on the property by posting …” See, Tenn. Code Ann Section 39-17-1325. We understand that the NRA was fully supportive of this change and even the language of the amendment.
But what does this law do? Nothing. Absolutely nothing.
As a theoretical matter, it grants immunity to the property owners in a narrow and almost never to occur set of facts. It grants immunity on a set of facts that likely never would have given rise to a viable, legally recognized cause of action in the first place. Why? The gift of immunity would only apply if a plaintiff could convince a court and a jury that they were injured in a shooting as a proximate cause of the failure of the property owner to create a gun free zone. The defense is easy. Data for decades has proven that the signs creating gun free zones do not work to effectively stop criminals, they never have and they never will. Indeed, you are more likely apparently to be killed by an assassin seeking multiple homicides in a gun free zone than in any other location.
In 2016, Sen. Gresham and Rep. Faison offered legislation to make property owners financially responsible for their choices to create gun free zones. Had that law passed, it is possible that Waffle House would be financially responsible for its decision to prohibit lawful gun owners to be able to defend themselves while patrons. Choices should have consequences.
Because the law did not pass, lawful gun owners who desire the chance to defend themselves and their families have yet another reason to avoid gun free zones like Waffle House. They also have another reason to hold Establishment Republicans accountable for bad public policy in Tennessee and replace them in the 2018 election cycle with public stewards who care more about the rights and lives of individuals than they do the enormous financial contributions from the members of the chambers of commerce.
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