Federal law is supposed to preclude those accused or convicted of felony crimes and violent misdemeanors from obtaining firearms. People who suffer from mental illness or are deemed to be a threat to themselves or others are also prohibited from buying guns. While we would hope that violent criminals could not legally purchase weapons in Florida, two major loopholes threaten our safety: the “gun show” loophole and the “lie and try” loophole.
Most Gun Buyers who “Lie and Try” Get Away With It
In Florida, local police cannot arrest and charge people for lying on their background check forms when they try to purchase firearms because they never find out when it occurs. When a person attempts to buy a gun in a federally-licensed gun shop, he or she must complete ATF Form 4473, the Firearms Transaction Record. This form requires the person to truthfully disclose whether he or she is a convicted felon, the subject of a restraining order, a convicted domestic abuser, or other information that would bar gun ownership.
Once the hopeful gun buyer completes the form, the seller sends it to the FBI, which then verifies the information using the National Instant Criminal Background Check System, or NICS. Submitting false information on a background check form is a federal felony that can lead to 10 years in prison and a fine of up to $250,000; yet, as many as 103,000 people in Florida failed background checks in the past ten years with zero consequences, according to an investigation by News4Jax’s I-Team and The Trace.
Florida is the only state that lacks the legal authority to charge people with a crime for lying on their gun applications. The “lie and try” loophole prevents police and prosecutors from cracking down on buyers who are banned from owning guns. Language in the law regarding the sale and delivery of firearms makes FDLE responsible for vetting buyers. The application buyers fill asks them whether anything on their record prevents them from owning guns. Under state law, the FDLE is not authorized to seek this information. In State v. Watso, the court held that “the Florida Department of Law Enforcement has no authority to make false answers to these additional questions a crime.”
A handful of states have implemented “lie and try” policies that require local police agencies to find out when someone fails a background check immediately. Such laws allow police officers to arrest individuals before they can secure a gun elsewhere. In Florida, these policies do not exist, meaning that one who fails a background check can turn to a private seller to obtain a weapon. The law in Florida and 31 other states excuses private sellers from running background checks on gun buyers. This is what is commonly known as the “gun show loophole.”
What May Prevent Me from Passing a Background Check?
According to the investigation, the most common reason would-be gun buyers failed state background checks in 2016 was due to prior convictions for felonies or serious misdemeanors. A significant percentage were prevented from buying firearms because they lied about misdemeanor domestic violence convictions or being the subject of restraining orders.
Other reasons a gun purchase may be denied include:
- Adjudication of being mentally unfit to own a gun/involuntary commitment to a mental institution.
- Being an illegal immigrant
- Being under indictment for a felony
- Being a controlled substance abuser
- Being a fugitive from justice
Currently, Florida gun laws are in a state of flux. Drastic changes have been made since Parkland, including raising the minimum age to buy firearms, banning the sale of bump stocks, criminal penalties for people who threaten school violence, and more. It stands to reason that the above loopholes may close in the near future.
Protect Your Second Amendment Rights
If you have been arrested in connection with a firearm offense in West Palm Beach, contact The Law Office of Gabriel & Gabriel. Attorney Brian P. Gabriel has fought gun charges for more than 30 years in and around West Palm Beach. He holds a favorable reputation among judges, prosecutors, police officers, and others in the legal environment, and can use his professional relationships to advance your case. Any case that may result in the loss of your constitutional rights must be taken seriously. At our firm, our goal is to have your charge reduced to a less serious charge or dropped so you may keep your rights and freedoms.
Attorney Brian Gabriel is a proud member of the National Trial Lawyers Top 100 Trial Lawyers. Our firm has more than 30 years of experience defending gun rights in Palm Beach County. Call 561-622-5575 or click here for a free consultation.