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Background Checks

The Florida Loophole That Lets Thousands of People Banned From Guns Get Away With Lying on Background Checks

A bill to give the state a tool to crack down on "lie-and-try" gun buyers awaits action from lawmakers.

This story was published in partnership with the E.W. Scripps Florida stations: ABC Action News, WPTV NewsChannel 5 and FOX 4.

Lying on a gun background check form is a federal crime that can lead to up to 10 years in prison. But under Florida law, gun buyers guilty of that offense are virtually guaranteed to get away with it: A legal loophole in the state, known to Florida legislators, prevents police and prosecutors from cracking down on prohibited buyers who fail to disclose their criminal histories or other disqualifying factors when attempting to purchase firearms.

Florida appears to be the only state in the country that lacks the legal authority to prosecute  “lie-and-try” cases. For the second year in a row, legislation is pending in the Florida House and Senate to fix the problem. With a week to go in the 2018 legislative session, the proposal has found bipartisan support, but its sponsors are unsure whether it will make it into in the package of gun bills introduced by lawmakers following the school shooting in Parkland.

What is clear is that without action by state politicians, police in Florida will continue to lack a vital tool for addressing a significant public safety risk, reporting by The Trace and E.W. Scripps’ Florida television stations shows. Last year alone, the Florida Department of Law Enforcement (FDLE), which processes gun background checks in the state, denied more than 12,600 sales to buyers who falsely stated that they were not banned from owning firearms. Over the past decade, FDLE has rejected more than 100,000 would-be buyers.

A sliver of those rejections, federal data suggests, may have been false positives, which can occur in rare instances when an applicant’s name matches a banned person’s. But many more of the buyers who “lie-and-try” to acquire guns have a history of violence or other criminal behavior.

In 2016, a prior conviction for a felony or serious misdemeanor was the most frequent reason that prospective gun purchasers in Florida failed state background checks. Seventeen percent of denials were triggered by misdemeanor domestic violence convictions or restraining orders.

Court records illustrate how the loophole prevents law enforcement from dealing with the  danger posed by people who are too high-risk to own guns, but have clearly just attempted to acquire one. Consider the travails of Tampa Detective Dale Frix, who over the course of a few months arrested five people barred from owning guns for falsifying their background check forms, only to see every case slip away.

On October 22, 2014, Frix arrested Jeffrey Lasman, a Florida attorney, for making false statements while trying to buy a Sig Sauer P238 pistol from a Tampa pawn shop. One of the questions on the background check form he completed asks applicants whether they have any open felony charges. According to an affidavit, Lasman indicated that he did not. He was lying: Lasman was at the time the subject of two felony cases, one for burglary and grand theft, the other for possession of cocaine. In the ensuing months, he faced two further charges for grand theft, and was disbarred.

Frix entered the background check form with Lasman’s false answers into evidence. Less than a month later, a state attorney dropped the case. Three other men Frix arrested for lie-and-try violations — including one with a conviction for aggravated assault, and another with a domestic violence misdemeanor on his record — also got off without facing punishment. Another had the charge dismissed in a plea agreement.

The reason prosecutors had no choice but to punt the cases, and any others like them, owes to language in the law detailing Florida’s gun background procedures. While the FLDE is responsible for vetting buyers, it does so using the standard background check form produced by the federal government. That application asks buyers whether they have anything on their record that means they can’t own guns. But according to the state law, the FDLE is not authorized to seek such information. In 2001, an appeals case, State v. Watso, cemented the loophole in place. In the ruling, the court held that “the FDLE has no authority to make false answers to these additional questions a crime.”

In early 2017, two Democratic Florida lawmakers introduced legislation that would have fixed the disconnect and given law enforcement a tool to stop potential gun crimes by reoffending buyers. The bills, authored by Senator Randolph Bracy and Representative Bobby DuBose, received little fanfare and died in committee.

Bracy and DuBose’s second attempt to address lie-and-try gun buyers has the backing of House Speaker Richard Corcoran, a Republican. Corcoran called the bills an “easy” opportunity to add “another insurance measure” to the state’s background check system.

In 2016, gun-friendly Tennessee easily passed a similar law, which requires the state’s background check agency to alert the law enforcement agency that filed a restraining order if the subject of that order tries to buy a gun.

Bracy, the Florida bill’s Senate sponsor, said he is frustrated that it took a national tragedy to spur interest in his proposal.

“Why does it take something like this for you to even consider it,” he said, “when it’s obviously a sensible piece of legislation?”

Authorities have long been aware that a failed attempt to purchase a gun can foreshadow future criminal activity. People who fail background checks are 28 percent more likely to be arrested in the five years following the denial than in the five years before it, according to a 2008 study.

Outside of Florida, the tactic of prosecuting lie-and-try cases to pre-empt other gun crimes is gaining in popularity. The U.S. Department of Justice last week announced plans to step up lie-and-try prosecutions, marking a shift from current practice: between 2008 and 2015, U.S. attorneys prosecuted an average of 32 lie-and-try cases per year.

Florida is among 21 states that process at least a portion of their own gun background checks, rather than running buyers through the federal system. Ten of those “point-of-contact” states, as they are known, have now enacted laws or implemented policies that require law enforcement to be notified whenever a prospective purchaser fails a background check, so that investigators and officers can decide whether an arrest is necessary. Florida is one of eight states considering lie-and-try legislation this year.

Of 21 point-of-contact states, 10 have lie-and-try laws and policies

State Lie-and-try law or policy
California Law
Colorado Law
Connecticut No law
Florida No law
Hawaii Law
Illinois Law
Iowa No law
Maryland No law
Michigan No law
Nebraska No law
Nevada No law
New Hampshire No law
New Jersey No law
North Carolina No law
Oregon Policy
Pennsylvania Policy
Tennessee Law
Utah Law
Virginia Policy
Washington Law
Wisconsin No law

Source: Everytown for Gun Safety; ATF

When law enforcement is given the means to pursue lie-and-try gun buyers, upticks in enforcement frequently ensue. In the seven-and-a-half months since Washington state passed its bill, a state law enforcement agency has referred more than 10 percent of denied purchasers to local law enforcement departments, which in turn have apprehended 71 people under restraining orders, and 49 who had attempted to buy guns multiple times. Local media reported that the state’s initiative has nabbed several convicted criminals who were trying to arm themselves.

Last year, Oregon arrested, investigated, or referred for prosecution nearly 2,300 denied gun buyers. And according to a 2010 study of lie-and-try policies, Virginia’s State Police arrested nearly 30 percent of all denied applicants.

In Florida, people familiar with gun laws are frustrated by its lie-and-try loophole. Art Divi, the owner of a Tampa pawn shop, finds it baffling. “I would just call it strange,” he said, “that you wouldn’t be able to charge someone that falsifies a federal form.”

Pennsylvania has a background check statute with language nearly identical to Florida’s. Both call for a form that collects an applicant’s basic biographical details; neither specifies questions about criminal history. Yet when the issue went to trial in Pennsylvania, a court of appeals delivered essentially the opposite ruling, affirming that making false statements on the form was illegal, regardless of whether the specific questions were spelled out by state law.

Pennsylvania now excels in investigating lie-and-try violations. After the Pennsylvania State Police made it a policy to investigate lie-and-try buyers in 2013, busts of denied purchasers spiked. In 2016, the department reported 733 arrests and 356 convictions.

More than 150 prohibited buyers with active warrants were arrested on the spot.