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Florida law inspires confusion over whether 'straw-buyer' of weapon can be charged

OLDSMAR — Local law enforcement officials continue to grapple with Florida's firearm possession laws as they seek a way to punish the buyer of a gun investigators say was used in an Oldsmar double murder.

The Pinellas County Sheriff's Office and Pinellas-Pasco State Attorney's Office said last week that there was no way to bring charges against the gun purchaser, a friend of the alleged shooter, under existing state law. Instead, the buyer's case is being referred to the federal Bureau of Alcohol, Tobacco and Firearms.

But as they delve into state criminal law, prosecutors and sheriff's investigators say they are finding a more complex situation than expected.

The Tampa Bay Times asked Pinellas Sheriff Bob Gualtieri this week about a provision in Florida statutes that appears to apply to so-called "straw purchases" of guns for people who are barred from owning them.

According to a brief passage in the Florida statutes' section on firearms, Chapter 790, "Any person who knowingly acquires a firearm through purchase or transfer intended for the use of a person who is prohibited by state or federal law from possessing or receiving a firearm" commits a felony.

At first glance, the statute seems to cover the case of Benjamin Bishop, the 18-year-old man sheriff's deputies have charged with first-degree murder in the Oct. 28 shooting of his mother, Imari Shibata, and her boyfriend, Kelley Allen. Bishop wasn't eligible to buy a gun because he had a criminal record, so he asked a friend, also 18, to buy the weapon for him. Authorities have not disclosed the friend's identity, citing an ongoing investigation.

Gualtieri and Beverly Andringa, a senior prosecutor in the State Attorney's Office, said they had not heard of the law and were unaware of any cases where it had been applied.

Gualtieri said that was an oversight at his office and he was trying to determine how his detectives had initially missed the statute. Their review of state law on firearms, he said, "wasn't thoroughly done."

However, after they reviewed the statute the Times referenced, authorities said the law still was not sufficiently clear to arrest Bishop's friend — even though, according to Gualtieri, the friend was present when a firearms dealer initially refused to sell Bishop a 12-gauge shotgun. The friend, he said, returned later with Bishop's money to buy the firearm for him.

The sticking point, Andringa said, is the word "knowingly" in the statute. She said her office has found no cases where the statute has been invoked, and no case law to explicate how much the friend would have had to know about the specific prohibitions on Bishop's purchase of a gun.

It is not necessarily enough, she said, that the friend knew in general terms that Bishop couldn't legally buy a firearm.

Said Andringa, "How do you prove that the kid who bought the gun knew that Bishop was prohibited by state law" from owning a weapon? "We've got to prove that."

A similar Florida statute penalizing any firearm purchaser "who willfully and knowingly provides false information or false or fraudulent identification" has effectively been eviscerated by case law.

In 2001 the 2nd District Court of Appeal ruled that even a convicted felon who had lied about his criminal background when buying a gun could not be prosecuted, since the state Legislature had not sufficiently outlined the specific information a gun buyer needed to present.

Laura Cutilletta, a senior staff attorney at the Law Center to Prevent Gun Violence in San Francisco, said Florida's statute contains "ambiguity" and should be rewritten to more clearly outlaw straw-buying of weapons.

"This is one of the many things that Florida needs to shore up" in its gun restrictions, she said.

A gold-standard law exists in California, she said, where the straw-buyer ban states, "No person, corporation, or dealer shall sell, loan, or transfer a firearm to any person whom he or she knows or has cause to believe is not the actual purchaser or transferee of the firearm," and specifically penalizes "intent to violate" a gun-ownership restriction.

"It turns on the fact that you're trying to avoid stricter requirements," Cutilletta said of the California law.

Peter Jamison can be reached at pjamison@tampabay.com or (727) 445-4157.

Florida law inspires confusion over whether 'straw-buyer' of weapon can be charged 11/08/12 [Last modified: Thursday, November 8, 2012 11:35pm]

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