Florida AG – Gun Purchases Can Be Denied Without Judicial Review

Florida AG – Gun Purchases Can Be Denied Without Judicial Review

In a pending legal case of LEONARDO LYNCH v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT the Florida Attorny General Ashley Moody argued that the Florida Department Of Law Enforcement does not have to provide any evidence or proof and should not be questioned when it denies anyone their right to purchase firearms.

When a firearm is purchased, FDLE runs a background check against the National Instant Check System (NICS). If someone is flagged in the NICS system as having a potentially disqualifying history, Florida Department Of Law Enforcement (FDLE) is required to obtain proof that the NICS flag is valid. Some anti-Second Amendment states refuse to cooperate with FDLE by providing records and enter many people into NICS who are not federally disqualified from firearm ownership.

Florida Department Of Law Enforcement is the Point of Contact for NICS in Florida.

Mr Lynch is an Active Duty U.S. Navy Sailor stationed in Florida who FDLE has denied the right to purchase a firearm based solely on an unproven NICS flag placed by the State of New York.

Florida Carry is not a party to this case but is watching it closely.

Summary of the Florida Attorney General’s Official Position (embedded below) on the Purchase of Firearms:

1. The Florida Department of Law Enforcement (FDLE) should not be required to produce any evidence or proof that an individual is a prohibited person prior to the denial of a constitutional right.

2. The Court should accept FDLE’s statement that a person is prohibited from purchasing firearms without any evidence to support FDLE’s claim.

3. FDLE can allege that a person is prohibited from purchasing firearms and is not required to offer any evidence that the purchaser is prohibited.

4. FDLE has full discretion as to whether a purchase denial is final, and the courts have no authority to require FDLE to issue a final decision, even almost a year later.

5. If a purchaser does have a right to the entry of a final decision by FDLE through mandamus the 1st DCA should exercise discretion and refuse to compel a final decision in this case because NY law prevents FDLE from obtaining proof of FDLE’s claims.

6. Compelling FDLE to render a final decision and granting appellate review would force FDLE to give purchasers an approval when FDLE is unable to prove they are actually a prohibited person.

7. A purchaser prohibited by FDLE cannot require FDLE to render a final decision that would be subject to judicial review.

8. A purchaser that FDLE claims is prohibited has no right to appellate judicial review of FDLE’s decision in a Florida court.

9. A purchaser has an obligation to prove they are not a prohibited person even though FDLE has offered no evidence or documentation that the individual is actually prohibited.

10. A mental health record (that no evidence has been produced even exist) is a criminal history record. Despite a prior AG opinion regarding Florida's mental health law stating that mental health issues should not be treated as criminal cases.

11. FDLE’s statutory authority to create rules for review of criminal history records applies to records that are not criminal history records as defined by Florida law.

12. The specific authority under the Brady Act to bring an action against a denying agency does not apply to a purchaser seeking appellate review of an FDLE denial.

13. FDLE is not subject to the Florida Administrative Procedures Act (APA) when it denies a person the fundamental right to purchase a firearm.

14. A person seeking to purchase a firearm is similar to a criminal seeking to seal or expunge their record.

15. Because the Legislature gave an express right to Concealed Weapon and Firearm License (CWFL) applicants to seek review under the APA, but did not give that express right to denied purchasers, the purchaser has no rights under the APA.

Sean Caranna | Executive Director
Florida Carry, Inc.

 

Source: https://www.ammoland.com/2019/09/fl-ag-moody-gun-purchases-can-be-denied...