By Geoffrey P. Golub
Whichever side a person may fall on Florida’s Firearm Laws, all sides can agree that the law as written should be followed. Unfortunately, this is not always the case. That’s because a person’s juvenile criminal record is most likely not part of the criminal background check conducted by the Florida Department of Law Enforcement (FDLE) or by the Florida Department of Agriculture and Consumer Services (FDAC).
The forms that must be filled out to purchase a firearm and to obtain a Concealed Firearm License are devoid of any questions regarding a person’s Juvenile criminal record.(1) The forms are most likely devoid of those questions because the Florida Statutes that apply to criminal background checks conducted by FDLE and FDAC never mention the words “juvenile” or “delinquent,” or even the word, “minor.”(2)
And it is usually only when statutes specifically refer to Juvenile Criminal Records that they are used in the same manner as Adult criminal records.(3)
Florida Statute 790.23, sections (1)(b) and (d), states that it is unlawful and a second-degree felony punishable by fifteen (15) years in prison for any person under the age of 24 to possess a firearm, if they have been found in the courts of this state or any other state, territory or country to have committed a delinquent act that would be a felony if committed by an adult.(4)
A person does not have to be convicted of the delinquent act to violate this section.(5) A person commits a delinquent act if they are found guilty of committing the act after a non-jury trial, or if they plead guilty or no contest to committing the act, regardless of whether adjudication was withheld.
This would logically mean that a person under the age of 24 who has committed a qualifying delinquent act, should not be able to purchase a firearm at a gun store and certainly should not be able to obtain a Concealed Firearm License. However, this is not always the case.
When any person purchases a firearm from a licensed firearm dealer, they have to fill out a firearms transaction record, otherwise known as an E-Form 4473.6 This form is issued by ATF and was last revised in October 2016.
The form has a set of questions a person must answer. One of these questions is whether the person has ever been convicted of a felony. A conviction for a felony juvenile delinquent act is not considered a felony conviction under Florida law.(7) Therefore, a person answering, ‘no’ to that question who has only been convicted of committing a delinquent act that would be a felony if committed by an adult, would not be lying or falsifying the document.
In fact, even if a person were asked if they had ever been arrested for a felony and they had only been taken into custody for committing a delinquent felony act, they could truthfully answer, “no,” because when a juvenile is taken into custody by the police it is not usually considered an arrest.(8) In fact, for the most part committing a juvenile felony or misdemeanor delinquent act doesn’t even make a person a criminal.(9)
But that’s not the problem. The problem is nowhere in the E-Form 4473 is the person asked:
Are you under the age of 24, and if the answer is ‘yes,’ have you ever in the State of Florida or any other State, Country or Territory, pled guilty, or no contest or been found guilty by a Judge, of committing a delinquent act that would be a felony if committed by an adult, regardless of whether adjudication was withheld.
Once the form is completed, a phone call is placed by the dealer to FDLE. The Department runs a criminal record background check pursuant to Florida Statute, 790.065 Sale and Delivery of Firearms, and either approves the deal or rejects it.(10) As of October 2018, a person cannot purchase a firearm until three days have passed or the background check is completed, whichever is later.(11)
Florida Statute 790.65(2)(a) states in part that,
Upon receipt of a request for a criminal history record check, the Department of Law Enforcement shall, during the licensee’s call or by return call, forthwith: (a) Review any records available to determine if the potential buyer or transferee: 1. Has been convicted of a felony and is prohibited from receipt or possession of a firearm pursuant to s. 790.23.
Florida Statute, 790.065(2)(a) only refers to the sections of Florida Statute, 790.23 that prohibit a convicted felon from purchasing or possessing a firearm. It makes no mention of the sections of Florida statute, 790.23 that prohibit a person under the age of 24 from possessing a firearm if they have committed a qualifying delinquent act. And this is why FDLE most likely does not review a person’s juvenile record prior to approving the sale.
Without that review, a person under the age of 24 who is otherwise not allowed to possess a firearm has just bought one, and no one is the wiser. In fact, the person under the age of 24 may not even know they have done anything wrong, since nowhere on the form were they ever asked if they had committed a delinquent act that would be a felony if committed by an adult.
Florida Statute 790.065(2)(a)(1) should be amended to read:
upon receipt of a request for a criminal history record check, the Department of Law Enforcement shall, during the licensee’s call or by return call, forthwith: (a) Review any records available to determine if the potential buyer or transferee: 1.Has been convicted of a felony or is under the age of 24 and has committed a delinquent act that would be a felony if committed by an adult, and is prohibited from receipt or possession of a firearm pursuant to s. 790.23.
What’s even scarier is that same person in the example above can also obtain a license to carry a concealed firearm because nowhere on Florida’s application for a Concealed Weapon or Firearm License, provided by FDAC as revised in 7/16, is a person asked the question about being under the age of 24 and having committed a delinquent act. (12)
In fact, Florida Statute, 790.06 section (2)(d) license to carry concealed weapon or firearm, the very statute that the application is based upon, states that an applicant
(d) Is not eligible to possess a firearm pursuant to s. 790.23 by virtue of having been convicted of a felony.
Florida Statute 790.23(1) sections (a)(c)and (e) refer to a person not being able to possess a firearm if they are a convicted felon. However, Florida Statute, 790.06 mentions nothing about a person being ineligible to obtain a license for committing a delinquent act pursuant to Florida Statute, 790.23 sections (1)(b) and (d). And this is why, when a criminal background check is conducted by FDAC, a person’s juvenile criminal record is most likely not included in that check.
Florida Statute 790.06 section (2)(d) should be amended to read that an applicant,
(d) Is not eligible to possess a firearm pursuant to s. 790.23 by virtue of having been convicted of a felony or by virtue of being under the age of 24 and having committed a delinquent act that would be a felony if committed by an adult.
The application for a Concealed Firearm License does require a person to swear that they have been furnished a copy of chapter 720, Florida Statutes relating to firearms and weapons, and that they are knowledgeable of the provisions therein. But the percentage of people who actually read all of those provisions is probably about the same percentage of people who actually read the “terms and conditions” for something they are buying or applying for prior to clicking that they have read them all in the allotted box.
The people who have read all of the provisions and actually understood them all, would be familiar with Florida Statute, 790.23 regarding people under the age of 24 who have committed a qualifying delinquent act not being allowed to possess a firearm.
But why should anyone have to be familiar with those provisions, when it is obvious that the people who work for ATF, The Florida Department of Law Enforcement and the Florida Department of Agriculture and Consumer Services are most likely not familiar with those provisions, and the very statute that governs who is not eligible to receive a license makes no mention of Florida Statute, 790.23 sections (1)(b) and (d)?(13)
The irony in all of this, is that a person could be prosecuted by the State of Florida for violating Florida statutes, 720.23 sections (1)(b) or (d) even though the same state of Florida allowed them to not only purchase a firearm, but even gave them a license to conceal it. The sadder irony is a young person not otherwise qualified to possess a firearm could commit a mass shooting with a firearm that he is licensed to carry concealed.
If the two applications were revised to add the question,
Are you under the age of 24, and if the answer is ‘yes,’ have you ever in the State of Florida or any other State, Country or Territory, pled guilty, or no contest or been found guilty by a Judge, of committing a delinquent act that would be a felony if committed by an adult, regardless of whether adjudication was withheld,
and if Florida Statutes, 790.06 and 790.065 were amended as previously stated, then juvenile background checks would hopefully be conducted, and this problem would be solved.
Of course for this statute to be properly enforced, a background check would also have to include every state’s juvenile records and every territory and every country’s juvenile records. But perhaps that is asking too much.
Geoffrey P. Golub is a sole practitioner in Melbourne, Florida. He was admitted to the practice in November, 1993 after earning his A.B. at Washington University in St. Louis. and a J.D. from University of Miami School of Law. He spent two-and-a-half years as an Assistant Public Defender with the 18th Judicial Circuit in Brevard County. He is a Florida Board certified criminal trial lawyer.
This article originally appeared in Florida Defender, the magazine of the Florida Association of Criminal Defense Lawyers and is reprinted with permission.