Gun legislation

Misfire: How Florida failed to close gun-show loophole

 

After the killing of three deputies and a little boy, Florida voters demanded background checks for private gun sales. And then, the whole thing fizzled.

What the Florida Constitution

and local ordinances say

‘Each county shall have the authority to require a criminal history records check and a 3- to 5-day waiting period, excluding weekends and legal holidays, in connection with the sale of any firearm occurring within such county. For purposes of this subsection, the term “sale” means the transfer of money or other valuable consideration for any firearm when any part of the transaction is conducted on property to which the public has the right of access. Holders of a concealed weapons permit as prescribed by general law shall not be subject to the provisions of this subsection when purchasing a firearm.’


What is the ‘gun-show loophole?’

Commonly used by advocates of stricter firearm regulations, the term “gun-show loophole” is in some ways misleading. Any licensed firearms dealer who appears at a gun show is required by federal law to perform the same background checks — searching criminal histories and mental-health records — they perform at a retail location.

However, unlicensed private sellers are not obligated under federal law and the laws of most states to run background checks, at gun shows or anywhere else. Since private sellers often set up at gun shows, this exemption has become known as the gun-show loophole.

The Florida Constitution allows counties to require background checks for sales “on property to which the public has the right of access,” language that targets gun shows. One sticking point in gun-control debates at the state and national level is how to regulate private sales outside gun shows, which are frequently arranged through classified ads or take place among acquaintances.


More information

— Amendment 12 to the Florida Constitution, approved by 72 percent of state voters in 1998.


Tampa Bay Times

It was a rare moment in American public life: A killer’s shooting spree had claimed lives young and old, giving rise to a burst of political will to strengthen gun laws.

In November 1998, Florida voters overwhelmingly approved an amendment to the state Constitution that allowed counties to mandate background checks for private gun sales — closing the so-called “gun-show loophole.”

Public support for universal background checks had surged over the summer after Tampa resident Hank Earl Carr, a volatile ex-felon who acquired a stockpile of firearms despite his criminal record, fatally shot three law enforcement officers and a 4-year-old boy. The constitutional amendment passed with 72 percent of the vote.

With their newly granted authority, Florida’s most populous urban counties, including Miami-Dade, Broward and Palm Beach counties, rushed to enact ordinances regulating gun shows. From a distance, it looked like a bracing example of voters making their will known on an issue that confounds politicians.

The reality is different. Despite the amendment’s passage and counties’ actions, the requirements for criminal record checks on private gun sales are virtually unenforced in Florida.

Law enforcement officials, government attorneys and gun-show organizers say the ordinances are ignored in the seven counties — encompassing almost half of Florida’s population — that currently have them.

Sheriff’s deputies and police officers have responsibility for seeing that the background checks are conducted, but acknowledge they do little to ensure compliance. Gun-show organizers say private sellers typically disregard the laws.

“Nobody’s checking anything,” said Randie Rickert, organizer of the Hernando Sportsman’s Club gun show.

Hernando County passed an ordinance closing the gun-show loophole in 1999 and repealed it in 2009. During the decade the law was on the books, it was ignored at the club’s gun show, Rickert said.

“It’s a feel-good law,” he said. “It had no impact on anything.”

The regulations’ ineffectiveness appears to have several causes. One is inconvenience. While they are required to perform background checks on buyers, private gun sellers in counties with local gun-show laws have no easy way of doing so, critics of the ordinances say.

Officials say the lack of enforcement is also due, paradoxically, to an absence of public concern about the voter-approved background checks.

A 2011 state law that restricted counties’ authority to regulate guns also led many law enforcement officials to believe — mistakenly, according to attorneys familiar with gun laws — that county ordinances closing the gun-show loophole were voided.

On the whole, it is an unexpected fate for a campaign that created a meaningful measure of gun regulation in a state famously averse to infringement on Second Amendment rights.

“It’s a great disappointment,” said former Orange County Mayor Linda Chapin, who was part of the effort to amend the state Constitution.

Brian Malte, director of mobilization for the Brady Campaign to Prevent Gun Violence, named for a White House press secretary gravely wounded in the assassination attempt on President Ronald Reagan, said local officials’ failure to enforce their gun-show ordinances “is not only troublesome, it’s dangerous.”

The lack of background checks for private sales is “a recipe for disaster,” he said, preserving access to guns for convicted felons and the dangerously mentally ill.

“When you have 72 percent of Florida voters saying they want to be able to have background checks at gun shows, they expect it’s being done,” Malte said. “And when they find out it’s not being done, I expect there will be a call to action.”

While disappointing to gun-control advocates, the state’s experience might be instructive. This month the U.S. Senate, acting in the wake of another tragic shooting, is expected to consider legislation that would close the gun-show loophole nationally.

Tragedy, reaction

On May 19, 1998, Hank Earl Carr, 30, killed his girlfriend’s 4-year-old son with a rifle shot to the head. Before the day was done, he would also shoot to death two Tampa detectives who tried to arrest him, Rick Childers and Randy Bell, and a Florida Highway Patrol trooper, James Crooks. He ended by taking his own life.

Carr had done prison time on charges including assault, burglary and violently resisting police, and was barred under federal law from owning guns. However, police determined through weapons traces that he bought many guns through private sales.

Unlike licensed gun dealers, private sellers aren’t required by federal or Florida law to perform background checks on buyers. Since unlicensed sellers often congregate at weekend gun shows, the lack of mandatory criminal record checks for their transactions is called the “gun-show loophole.” (Licensed dealers who appear at gun shows are still required to perform background checks.)

Several months before Carr’s rampage, the state’s Constitution Revision Commission had given preliminary approval to Amendment 12, which sought to close the gun-show loophole. The measure, after approval by voters, altered the Constitution to allow counties to require criminal record checks for all gun sales on “property to which the public has the right of access.” The language targeted sales at gun shows, which are often held at county fairgrounds and convention centers.

“It was just the right thing to do. Having that loophole is crazy,” said former Florida Attorney General Bob Butterworth, who served on the commission.

The amendment also permitted counties to establish waiting periods of up to five days on private sales — an extension of the state’s existing three-day waiting period.

With the Carr case fresh in mind, roughly 2.7 million voters supported Amendment 12 in November 1998. At least 11 counties eventually passed ordinances requiring background checks or waiting periods for private gun sales, though some — including Hernando, Citrus, Orange and Charlotte — later repealed them.

“Frankly, I don’t even remember it being that terribly controversial,” said Sallie Parks, who was chairwoman of the Pinellas County Commission when the ordinance was passed.

Today, seven counties — Miami-Dade, Broward, Palm Beach, Pinellas, Hillsborough, Sarasota and Volusia — have ordinances requiring background checks for private gun sales.

Those counties have 8.8 million residents, or 45 percent of Florida’s population, making the effects of the county ordinances potentially far-reaching. But performing background checks on all gun sales is not as easy as it sounds.

‘A simple thing’

Unlike licensed firearm dealers, the private sellers regulated by county gun laws have no direct access to buyers’ criminal histories.

Doing background checks on private gun buyers involves several steps, according to Florida Department of Law Enforcement spokeswoman Gretl Plessinger. The private seller must first sign the firearm over into the inventory of a licensed dealer. The dealer then conducts the background check.

For a $5 fee, FDLE checks the potential purchaser’s name in a database that tracks nationwide criminal records, lists of people declared “mentally defective” in court and individuals subject to domestic violence restraining orders.

If the buyer is not approved, the dealer must also perform a background check on the seller before returning the gun. If the seller is not approved, the dealer takes control of the weapon.

Even some law enforcement officials suggest the ordinances were poorly thought out.

About five years ago, concerned about the large number of private sales at local gun shows, the Palm Beach County Sheriff’s Office looked into stepping up enforcement of its background-check mandate, said spokeswoman Teri Barbera.

The agency asked an attorney at the federal Bureau of Alcohol, Tobacco, Firearms and Explosives to examine the local law. The lawyer’s “unofficial” opinion: It was “written very poorly and would be problematic to prosecute,” Barbera said.

Among the problems Barbera cited were the inability of private sellers to directly conduct background checks on gun buyers and inconsistencies with federal law. She said deputies settled on asking gun-show promoters to display the county ordinance on a sign.

“We do not believe anyone was ever charged” with violating it, she said.

It is unclear whether the ordinances were applied more vigorously in the early years after counties adopted them.

“I’ve never heard of one person ever being accused of it, arrested for it, or anything,” said Victor Bean, who puts on gun shows in Miami-Dade County.

While he does not require them to perform background checks, Bean said he always advises private sellers to size up their customers as best they can.

“It’s a doggone good idea to make sure you know who you’re selling that gun to,” he said.

Survivors’ views

The gun-show loophole remains a matter of public interest in Florida. Earlier this year, the Pasco County Commission briefly considered passing an ordinance requiring background checks for private gun sales, only to table the matter.

On Wednesday, Hillsborough County commissioners began a discussion about potentially banning assault rifles and requiring universal background checks. Unmentioned was that the county already has an ordinance requiring background checks for private gun sales that is not being enforced.

Debate is also taking place in Washington, where President Barack Obama supports closing the gun-show loophole nationally. Like Florida’s 1998 debate, the present national conversation was spurred by a spasm of gun violence: the fatal shooting of 20 children and six adults in December at Sandy Hook Elementary School in Newtown, Conn.

Gun-control advocates point to states where the laws have already been adopted without widespread problems.

According to the San Francisco-based Law Center to Prevent Gun Violence, background checks are required for some or all private gun sales in California, Connecticut, Maryland, Pennsylvania, Rhode Island and the District of Columbia.

But universal background-check proposals have bred skepticism, sometimes in unexpected places.

Mike Crooks, a 67-year-old Clewiston rancher, lost his 23-year-old son, Highway Patrol trooper James Crooks, in Carr’s shooting rampage. But Crooks said he has grown suspicious of calls for further gun regulation. He blames a lax criminal justice system for letting Carr out of prison, rather than inadequate oversight of firearms.

“I’m real skeptical of any new gun laws,” Crooks said.

Not everyone touched by Carr’s violence agrees.

Kacey Bell, a 25-year-old Fort Myers resident, was 10 when Carr killed her father, a Tampa police officer. She supports universal background checks at the national level, and said she sympathizes with survivors of the Sandy Hook school shooting who want to see gun laws reformed.

“I’ve been personally affected by [gun violence], so I know how those people feel who lost a loved one,” Bell said. “People are getting their hands on a gun who shouldn’t.”

Florida counties that require background checks should “obviously” enforce them, she said.

“I think if they did that to begin with, my father might still be alive.”

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

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