Friday, April 27, 2018
Public safety

State law sowed confusion over background checks at gun shows

While enforcement of county laws mandating background checks at gun shows never seems to have been zealous, it became even less of a priority in 2011.

That's when the Florida Legislature passed a law that threatened local government officials with removal from office or fines up to $5,000 if they adopted gun laws stronger than state regulations.

The National Rifle Association-backed bill put bite into an existing Florida law that "pre-empted" local governments from challenging the state on gun regulation. It caused a cascade of changes to county firearm laws, as local officials scrambled to make sure they weren't liable.

But according to several attorneys familiar with local and state gun laws, state pre-emption has no effect on county ordinances that close the so-called gun-show loophole.

That's because the 2011 state law contained an exception for local gun ordinances "expressly provided by the state Constitution." Counties' right to require background checks and waiting periods on private gun sales was inserted in the state Constitution through a 1998 amendment approved by Florida voters.

"The Legislature could not override something in the Constitution, much as they would like to sometimes," said Assistant Miami-Dade County Attorney Jess McCarty.

McCarty's reading of state law was seconded by officials in the Hillsborough and Pinellas county attorney's offices, as well as Pinellas Sheriff Bob Gualtieri, who is a lawyer.

Nevertheless, many other officials in the seven counties with active background-check ordinances said they believed all county ordinances on gun sales became null and void when the 2011 state law went into effect.

Sheriff's deputies, police officers and even prosecutors interviewed for this story repeatedly cited the state pre-emption law as one reason for their current lack of enforcement of local laws closing the gun-show loophole.

Peter Jamison can be reached at [email protected] or (727) 445-4157.

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