Florida Carry's challenge to FDLE background checks goes forward

Jeffrey Schweers
Tallahassee Democrat

A gun-owners’ advocacy group’s lawsuit challenging the way the Florida Department of Law Enforcement conducts background checks following the massacre at Parkland will go forward despite an attempt by FDLE lawyers to stop it.

The First District Court of Appeal today dismissed an emergency motion by FDLE to review a lower court order and stop the lawsuit filed by Florida Carry Inc. The three-judge panel said the agency failed to prove it was entitled to have the case reviewed by the upper court or have it stopped. 

The First DCA sent the case back to the Second Circuit Court of Leon County. A hearing date has been set for July 2 before Circuit Judge Kevin Carroll.

First Carry filed a complaint in May challenging new rules on gun purchases put in place by FDLE after passage of the 2018 Marjory Stoneman Douglas High School Public Safety Act.

Prior to 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.

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Some time after March 2018, FDLE eliminated the "Conditional Approval" category and replaced it with a "Decision Pending" status. No control number is issued for decision pending cases, and thereby “denied plaintiffs the right to purchase a firearm even after the time mandated by law for defendants to complete the required background check.”

“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 claims. "Defendants rely solely upon hearsay database entries to delay or deny persons who are lawfully entitled to purchase a firearm."

In its 51-page complaint, three of Florida Right to Carry’s members — all holding valid concealed weapons permits — said their gun purchases were delayed by more than three days and sometimes for months because of FDLE’s new background check regulations.

Florida has a three-day waiting period on gun purchases so the state’s top law enforcement agency can run background checks. Anyone with a felony conviction or who is the subject of domestic violence complaint is flagged and not allowed to buy a gun.

But lately, customers have found themselves waiting much longer than three days, the complaint said. 

“Under FDLE’s new policy, rule, or regulation, a person who gets a Decision Pending is held in limb,” the complaint said.

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Christopher Pretzer tried buying a gun from a licensed dealer in Charlotte County in March, but the background check placed him in the decision pending category. Pretzer is still waiting for a decision.

Mark Wood sought to buy a firearm from a federally licensed dealer in Volusia County in January, had a background that resulted in decision pending, and waited four months to finally get cleared. He had to hire a lawyer to prove he was not a “prohibited person.” 

He had been charged with a felony, which was knocked down to a lesser charge, and was sentenced to probation. More than four months have passed.

Richard A. Barskey also tried to buy a gun, last October in Palm Beach County. FDLE placed him in decision pending status. He’d been arrested in 2009 but the state attorney entered a "no file" on the case.

He is still waiting for approval, too.

“This denial of rights through indefinite delay occurs regardless of whether the FDLE possesses competent substantive evidence on which to base its denial,” the complaint said.

The 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.

"The person whose rights are being denied has no process for administrative review of the decision nor any way to know the exact nature of the basis for the FDLE's denial of their rights through delay of the purchase."

Contact Schweers at jschweers@gannett.com. Follow him on Twitter @jeffschweers.