When purchasing a firearm in the state of Florida, some may consider a growing problem with delays an example of unintended consequences — others see it as a careful design to complicate the process of gun ownership.
In the aftermath of the heartbreaking shooting at Stoneman Douglas High School, in Parkland, on Feb. 12, 2018, where 17 people were killed when a former student opened fire, the Republican-led Florida legislature was quick to act, passing the Marjory Stoneman Douglas High School Public Safety Act.
Designed to tighten gun control and improve school security and safety, the legislation was passed three weeks after the Parkland shooting, with then-Gov. Rick Scott signing the bill into law on March 9, 2018.
Emotions were raw, and the nation was already reeling from two mass shootings that had just occurred, to include the November 2017 shooting at a church in Sutherland Springs, Texas that claimed 27 lives, and the October 2017 shooting in Las Vegas, which claimed another 59 lives – this being the deadliest mass shooting by an individual in U.S. history.
Fast forward to 2020, and at the age of 59, your humble correspondent, a staunch supporter of the Second Amendment, decided for the first time to purchase a handgun. After some online research, I visited a gun shop near my home and was informed that there would be a three-day waiting period, of which I was aware, and that a background check would take place.
I provided the required information and the attendant explained that he generally receives an initial response quickly, and that he would then ring the purchase. I was still at the shop discussing a training class and looking at options for safe storage of the firearm when the answer came back: “Decision Pending.”
With a stressed look on his face, the attendant told me this was not good news, explaining that it meant the Florida Department of Law Enforcement was flagging my application.
According to FDLE, a pending status “is not a final decision; research is in progress.”
By law, I was told, the FDLE has three days to resolve the matter or clear the purchase, though this has been taking as long as 30 days or more, with some cases taking as long as four months. The attendant said there are occasionally cases that never get resolved.
For the record, I am not a felon, have no history of mental illness — politics aside — or domestic violence.
Full disclosure, I was arrested once in my life. I don’t recall the exact date, but it was in Orange County, Florida, sometime around 1980, give or take a year – this being 40 years ago.
I was charged with accessory to burglary after the fact – this coming after my roommate at the time broke into a cinema pub and stole $600. He had been fired from his job and couldn’t pay his share of the rent. I didn’t know he was planning to break into the business, but I did accept $200 of the ill-gotten gains for rent, knowing where the money had come from – thus the charge.
Having a clean record, I was placed in a pretrial diversion program and told that if I kept my nose clean for one year, my record would be clear. I went my merry way and have never had any other encounters with the law, outside of a few standard traffic tickets over the years. I did find out many years later when called for jury duty that “clear” wasn’t an entirely accurate depiction, as the court informed me that a record of events is maintained.
But never did I expect that this would one day infringe on my inherent, God-given right to defend myself, a right protected by the U.S. Constitution.
After 16 days of being in limbo, courtesy of the state of Florida, with no indication of when my case would be updated to either “Approval” or “Non-Approval” status, I was finally approved. This being well beyond the expected three-day period.
In the interim, I tagged Lake County Property Appraiser Carey Baker on social media to inquire about the real story. Baker is a former Republican state senator and owner of A.W. Peterson Gun Shop, located in Mount Dora. If anyone in the state is up to date on gun laws, he is the man.
Baker explained that prior to the passage of the Marjory Stoneman Act, there was indeed a statutory limit of 3-4 days to either deny or approve a gun purchase — there is an appeal process if you are denied.
“After passage [the Florida legislature] removed the 3-4-day limit language and replaced it with nothing, which now means they can have you in the decision pending position indefinitely,” Baker wrote.
“And because you aren’t technically denied there is no appeal available to you,” he added. “It is a complete denial of your due process rights!!!”
The actual language of Florida Statutes 790.0655 (1) (a) reads:
“A mandatory waiting period is imposed between the purchase and delivery of a firearm. The mandatory waiting period is three days, excluding weekends and legal holidays, or expires upon the completion of the records checks required under s. 790.065, whichever occurs later.”
The language about “whichever occurs later” is the de facto loophole that created the state of limbo I found myself in.
Baker confirmed that it’s typically a month or so wait for a decision and that there are indeed cases where they “have never heard back from the FDLE.”
“I do know that when the FDLE receives a letter from an attorney representing the aggrieved gun buyers generally, they will promptly act,” he added.
When I inquired about whether anything in the works in Tallahassee, toward fixing this problem, the response was not encouraging.
“No,” Baker replied. “They are working exactly in the wrong direction with our gun laws.”
So much for shall not infringe.
I did learn learned that I am far from alone in having my Second Amendment rights temporarily denied — Dr. Martin Luther King Jr once said, “A right delayed is a right denied.”
Panama City-based NBC affiliate WJHG-TV reported in May 2019 that “as many as 25,000 people may have been temporarily denied the right to purchase a gun.”
That same month, Florida Carry Inc., a gun-owners’ advocacy group, filed a lawsuit challenging the updated rules on gun purchases put in place by FDLE, according to the Tallahassee Democrat.
More from the Democrat:
Before the passage of the Stoneman Douglas act, the FDLE had three possible responses to provide a licensed seller who submits a background check for a potential buyer — Approval, Non-Approval, or Conditional Approval. A conditionally approved designation placed a three-day hold on the firearm before it could be released to the buyer, per federal law.
After March 2018, FDLE eliminated the “Conditional Approval” category and replaced it with a “Decision Pending” status.
The paper noted that a potential buyer has no right to a hearing, no right to review, and no right to know what evidence FDLE has or is relying on to make its decision.
“Under FDLE’s new policy, rule, or regulation, a person who gets a Decision Pending is held in limbo,” the Florida Carry complaint said.
“Defendants have enacted a policy of denying individuals the right to purchase firearms without competent substantial evidence that the individual is a prohibited person,” the lawsuit further stated. “Defendants rely solely upon hearsay database entries to delay or deny persons who are lawfully entitled to purchase a firearm.”
As Bearing Arms said of the matter, when your Second Amendment right to defend yourself is interfered with, the decision could prove to be fatal. It’s time for the GOP-led state legislature to admit that they made a mistake and fix this glaring problem by reinstating the original language.
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