Florida Court Says Onus Not On Applicant Over Background Check Issues

AP Photo/Andrew Selsky, File

The background to background checks, known as NICS checks goes back to the 90’s. When the federal system was implemented, a couple of caveats popped up in the provisions of the law. One of the things that was allowed to stay in place was a state’s ability to handle the background checks when a person purchases a firearm. The state would handle engaging with the FBI on the NICS system rather than the FFL directly. In some cases these states, known as point-of-contact states, the system actually runs better. In others, not so much. A recent lawsuit in Florida had a lower decision reversed and remanded to be reconsidered. From an email from Florida Carry we have the following:

In a decision issued Wednesday, Florida’s First District Court of Appeal told FDLE to do its own legwork when questions arise during background checks of potential firearm purchasers, because it’s not the responsibility of the would-be purchaser to chase down potentially disqualifying out-of-state records, which may not even be accurate.
In Lynch v. Florida Department of Law Enforcement, Leonardo Lynch appealed a determination by the Florida Department of Law Enforcement that he was prohibited from purchasing a firearm. The appellate court concluded that FDLE erred, and the three-judge panel reversed and remanded the case.
The case is a major win for Florida Carry, Inc., which appealed the case on Lynch’s behalf, and for Florida gun owners and gun dealers.
The conflict began with Lynch being denied the ability to purchase a firearm. Florida, being one of the point-of-contact states, found Lynch to allegedly be ineligible because of something in his background. It turned out what was found was false and did not pertain to Lynch. FDLE was making the claim it was Lynch’s responsibility to clear his name, rather than the responsibility lying with the state.
From the decision:
Mr. Lynch challenges the Florida Department of Law Enforcement’s (FDLE) determination that he was prohibited from purchasing a firearm. After examining federal and state law as well as the record, we conclude FDLE erred. Accordingly, we reverse and remand for proceedings consistent with this opinion.
Upon learning that FDLE had given the FFL a nonapproval number, Mr. Lynch sought to appeal his nonapproval in accordance with Florida Administrative Code Rule 11C-6.009(8).
Upon receiving Mr. Lynch’s appeal, FDLE wrote him a letter informing him of the reason why he was not approved. The NICS system indicated Mr. Lynch was prohibited from receiving a
firearm in accordance with Title 18 United States Code section 992(t)(4).∗ Mr. Lynch was prohibited from receiving a firearm based on mental incompetency records or a court-ordered
substance abuse treatment record. If he believed he was not the subject of the record(s), he would need to contact the owner of the record(s) in New York. The letter included the contact information for the owner of the record(s). It also informed him that if he was the subject of the record, but believed he should be relieved of the collateral consequences of the record(s), he would still need to contact the owner of the record to determine the process he needed to follow to be relieved of those consequences. FDLE informed Mr. Lynch that he could submit additional records showing that he was relieved of those collateral consequences or that he was not the subject of the record(s) and initiate a reappeal. Mr. Lynch states that he has never been adjudicated incompetent or subject to court ordered substance abuse treatment.
FDLE cannot make the determination that a person’s constitutional right to purchase a firearm has been stripped away based solely on a hearsay document such as an NICS printout. Id. at 281. Rather, when a potential buyer appeals a nonapproval based on NICS results, it is incumbent upon FDLE to request the underlying records “to help determine whether the potential buyer . . . is the same person as the subject of the record.” § 790.065(2)(a)4.f. Accordingly, we reverse and remand for further proceedings in accordance with this opinion.
This may not seem like a big deal, but it is. The fact that Lynch was never adjudicated incompetent or subject to court ordered substance abuse treatment should not have to be proved by him. In the United States, we’re innocent until proven guilty. Yes, that applies to criminal law. However, the same precepts should apply when it comes to rights. We’re deemed able to exercise our rights until suitable proof is provided noting the contrary? The responsibility to prove that should be on the state at all times. If that were not the case, point-of-contact states, if they wished, could create so much red tape that there would be a de facto ban on the purchase of firearms. In states that would be considered “shall issue” in the purchase of firearms, with or without a permitting scheme, they could effectively be “no issue” through bureaucratic red tape if they wished. This win helps set precedent that citizen’s rights can’t be arbitrarily usurped over “hearsay”.
I had a chance to talk to Eric Friday, the attorney representing Florida Carry and Lynch. This is what he had to say about the case:

The abusive practices of this rogue agency to deny citizens their constitutional rights must stop. It is past time to hold government officials personally responsible when they violate both the Constitution and the law to deprive citizens of their fundamental rights.

FDLE’s guilty until proven innocent policy was a clear violation of the Second Amendment and Florida law. I am grateful that the First DCA saw through FDLE’s baseless claims and is requiring FDLE to follow the law.

Unfortunately the case is not over. Even though FDLE has been violating my client’s civil rights for more than three years without any evidence, the court’s ruling gives FDLE one more chance to produce the non-existent evidence that FDLE already admitted it cannot obtain.

Until rogue agencies like the FDLE, fully recognize that the right to bear arms is a fundamental liberty interest that cannot be denied based on conjecture, hearsay, and unsupported allegations, Florida Carry will continue to fight in the courts and the legislature to guarantee the rights to keep and to bear arms, that is supposed to be the birthright of all Americans.

Florida Carry should be proud of this win. Their efforts are appreciated for all the work they do in the Gunshine State, as well as the eddies they cause across the nation. This will give people the proper relief they deserve when their character/background is being challenged.

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