UPDATED: Florida Attorney General Ashley Moody: Government needs no proof or evidence to prohibit a firearm purchase

UPDATE: I received a call and an email Saturday morning from Lauren Schenone, Director of Public Affairs for Florida Attorney General Ashley Moody.

The attorney general, she said, is personally reviewing the Lynch case.

“I wanted to follow up our on conversation last night and give you additional information that I have found regarding the case we discussed,” Schenone said. “The Attorney General was notified of this last night and is personally reviewing this case. Our office handles thousands of cases and our office was tasked with representing state agencies.”

PREVIOUS: Florida Attorney General Ashley Moody has just proven that — like her predecessor Pam Bondi — she is no friend of the state’s gun owners.

Moody’s position became crystal clear in her response to a show-cause order in the case Leonardo Lynch vs. Florida Department of Law Enforcement.

Lynch is an active-duty sailor stationed in Florida who attempted to buy a handgun last year.

FDLE informed the gun dealer that Lynch was prohibited from purchasing the weapon and Lynch appealed the denial.

New York state had an old NICS entry that showed Lynch, or someone with the same name, had been mentally committed, according to Sean Caranna, founder and executive director of Florida Carry, Inc.

New York refused to release any documents related to the NICS entry, which Caranna explained is not a disqualifier but more of a flag for further review. But FDLE took no action and said it does not have to even render a final decision in the case — ever — so no one gets to go to court for judicial review of the denial.

“All their decisions are never final,” Caranna told me. “If that’s the extent of our right to purchase firearms in the State of Florida, then we have a Constitutional crisis. Attorney General Moody needs to get her office under control.”

Neither Moody nor any member of her staff responded to calls and emails seeking comment for this story.

The arguments spelled out in Moody’s response are chilling, both for gun owners and anyone else who values personal liberties and freedoms.

Here’s a list of exactly what Moody is claiming in her response. The list was compiled by Florida Carry, Inc.

1. The Florida Department of Law Enforcement (FDLE) should not be required to produce any evidence or proof that an individual is a prohibited person prior to the denial of a constitutional right.

2. The Court should accept FDLE’s statement that a person is prohibited from purchasing firearms without any evidence to support FDLE’s claim.

3. FDLE can allege that a person is prohibited from purchasing firearms and is not required to offer any evidence that the purchaser is prohibited.

4. FDLE has full discretion as to whether a purchase denial is final, and the courts have no authority to require FDLE to issue a final decision almost a year later.

5. If a purchaser does have a right to the entry of a final decision by FDLE through mandamus the 1st DCA should exercise discretion and refuse to compel a final decision in this case because NY law prevents FDLE from obtaining proof of FDLE’s claims.

6. Compelling FDLE to render a final decision and granting appellate review would force FDLE to give purchasers an approval when FDLE is unable to prove they are a prohibited person.

7. A purchaser prohibited by FDLE cannot require FDLE to render a final decision that would be subject to judicial review.

8. A purchaser FDLE claims is prohibited has no right to appellate judicial review in a Florida court of FDLE’s decision.

9. A purchaser has an obligation to prove they are not a prohibited person even though FDLE has offered no evidence or documentation that the individual is prohibited.

10. A mental health record (that no evidence has been produced even exist) is a criminal history record. Despite a prior AG opinion regarding Florida mental health law that mental health issues should not be treated as criminal cases.

11. FDLE’s statutory authority to create rules for review of criminal history records applies to records that are not criminal history records as defined by Florida law.

12. The specific authority under the Brady Act to bring an action against a denying agency does not apply to a purchaser seeking appellate review of an FDLE denial.

13. FDLE is not subject to the Florida Administrative Procedures Act (APA) when it denies a person the fundamental right to purchase a firearm.

14. A person seeking to purchase a firearm is similar to a criminal seeking to seal or expunge their record.

15. Because the Legislature gave an express right to Concealed Weapon and Firearm License (CWFL) applicants to seek review under the APA but did not give that express right to denied purchasers, the purchaser has no rights under the APA.

Takeaways

I would like to give our new attorney general the benefit of the doubt, but allowing a response like this to be filed with the court — over her name — is damning.

It’s indicative of either very poor staff work or a complete lack of respect for the Second Amendment, which Attorney General Moody took an oath to support and defend.

I hope this case is resolved quickly.

Mr. Lynch took an oath too, when he joined the Navy.

The State of Florida should respect, if not honor, his oath by letting this sailor buy a pistol.

It’s the least we can do.

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About Author

Lee Williams can’t remember a time in his life when he wasn’t shooting. Before becoming a journalist, Lee served in the Army and worked as a police officer. He’s earned more than a dozen journalism awards as a reporter, and three medals of valor as a cop. He is an NRA-certified law enforcement firearms instructor, an avid tactical shooter and a training junkie. When he’s not busy as a senior investigative reporter, he is usually shooting his AKs, XDs and CZs. If you don’t run into him at a local gun range, you can reach him at 941.284.8553, by email, or by regular mail to 1777 Main St., Sarasota, FL 34236. You can follow him on Twitter: @HT_GunWriter and on Facebook @The Gun Writer.

15 Comments

  1. It’s not that Florida Attorney General Ashley Moody is no friend of the 2nd Amendment, she is fighting very hard to keep the awful BAWN amendment off the ballot.
    It’s more that she is cought between a rock and a hard place , walking a tightrope between two badly written laws that work in opposition. On one hand keeping guns out of the hands of the insane as required by law and HIPPA which requires privacy for the mental health records. And keeps those locked down. Then add uncooperative NY state and it’s virtually impossible for FDLE to comply with the law.

    • HIPAA explicitly permits the dissemination of protected information for court orders, court-ordered warrants, subpoenas, and administrative demands. An investigation of an attempted purchase by a prohibited person should qualify as a legitimate law enforcement investigation.

  2. A lawsuit against the FL AG and FDLE should be filed in Federal Court. Violation of civil rights without due process – 42 USC 1983 action.

    • In America, we are innocent until PROVEN guilty. The burden of proof lies on FDLE and the AG. anything less is tyranny.

      • And the politicians wonder why we don`t want to give an inch on any gun legislation, this right here is the reason .Imagine how they would treat us if we were unarmed.

  3. Our RIGHT is not granted to us by the constitution or the government, our RIGHTS are bestowed upon us by our creator and are not up for discussion. That being said anytime you have to ask permission to exercise a RIGHT it is no longer a RIGHT and therefore becomes a “privilege”. Once you combine this with the driver’s license PRIVILEGE it is a lot easier to connect the dots. This transference from RIGHT to privilege is the basis of tyranny, ANY/ALL gun “laws” are an infringement and therefore should be nullified.

    Get your head out of your feelings and you will realize this is the truest statement you have read in a long time, now what are YOU going to do about it?

    • Ha ha! You are 100% correct. Driving is not; contrary to missouri state highway patrol, and all the other missouri, hired gun slingers, a privilege! Any more than carrying self defense weapons, is a privelege! We have the god given right to carry any weapon, that we can carry. I can’t carry a tank, a cannon, nor an F-16. But I can carry knives, swords, bow and arrows, hand grenades, dynamite, bazookas, and any firearm manufactured. Constitutionaly, if I can carry it. I can, keep and bear (carry) it!

  4. I believe that your perspective is a misinterpretation of the AG’s motion. The motion clearly states that the decision to deny approval is in a holding pattern. Denial was in compliance with Florida Law based on a denial flag issued off a record in New York state, not Florida.

    When the plaintiff filed an appeal, the matter was put on hold until the plaintiff contacted the reporting agency, or the FBI to correct the errant record. The state of Florida has NO authority to force a New York agency to correct an errant record. Only the New York agency, or the FBI, which can change the NICS record, have the authority to do so.

    Further, neither the AG nor the FDLE can compel release of detailed information that forms the basis of the denial from the recording agency because that agency is prohibited from releasing that information under New York laws, which govern the functioning of the recording agency.

    The AG is acting within it’s authority, and under the mandates of State Statute, and has clearly stated that the purchase denial is NOT a permanent denial and will be amended once the plaintiff has corrected the record and provides the FDLE with the documentation.

    This suit is a challenge that belongs in a New York court, not a Florida one. And all it does is attempt to force a ruling that can be misapproriated to further disenfranchise gun rights in Florida.

    I would expect this kind of action from the left, not the right.

    • How can it possibly disenfranchise Floridians for Florida to say “no evidence to support denial has been presented, therefore purchase is approved”?

      If NY has this evidence, it is incumbent upon them to provide it.

      Just as you can’t get a grand jury indictment if you refuse to provide supporting evidence that a crime has been committed and the suspect MIGHT be at fault.

    • Scott Johnston on

      ” and has clearly stated that the purchase denial is NOT a permanent denial and will be amended once the plaintiff has corrected the record and provides the FDLE with the documentation.”

      Do you not understand due process at all? The Plaintiff in this case has an assumption of innocence before the bar. That assumption of innocence means that the FDLE must show evidence of the plaintiff’s guilt and barring that goal line being crossed with tangible admissible evidence of that guilt no assumption of guilt may be made.

      Saying that the denial is not permanent is quite akin to the Judgements against citizens of the Crown whereby a person could be accused of a crime and thrown in prison without trial until such time as it suited the King to bring him before the court. This is the very reason we have Due Process in this country. To prevent the government from being able to stall a case long enough that the plaintiff sues for mercy. Its why we have Habeas Corpus Writs. Show the proof or drop the action.

      Individual rights (the second amendments enumeration of same is at case here) are never up for interpretation by the government (be that National or State or Local Government see Heller vs. DC, McDonald v Chicago, Cruikshank v United States). They exist externally to the constitution as an individual right that is fundamental (i.e. Initia). Like gravity or electromagnetic force it is a constant impermeable singular and directed force that society has no method to adjudicate or reform. You can say G (Gravitational Constant) is whatever you like but it will by all other observers who are honest forever be 6.67408 × 10^-11 m^3/kg^-1/s^-2. It does not change with respect to location nor invocation nor desire. It is immutable. The individual right to keep and bear arms is likewise fundamental and immutable.

      Sorry the AG has it wrong in this case. Whats more the error is itself a criminal act that the FDLE is engaging in.

  5. Most wanna-be authoritarian societies start their confiscation regimens saying the same things and then turn around and allow firearms only to “politically reliable” citizens…

  6. However, if someone were to purchase the pistol for Mr Lynch, the state would allege it was a straw purchase. In order to get a conviction, the state would have to prove that Lynch is a prohibited person. Until then, he isn’t prohibited from possessing a firearm. With that being the case, it isn’t a crime to purchase one for him.

    That is also the underlying fault with the 4473. They ask if you are the actual purchaser, and answering yes means the dealer can’t sell to you, even though purchasing a firearm on behalf of someone else isn’t a crime unless the final purchaser is a prohibited person. In this case, Lynch is not prohibited.

  7. paul Vincent zecchino on

    A ‘mental health record’ is the same as a criminal record? What sort of ‘mental health record’? Are we to understand that persons who suffer from, say, very common depression, and who responsibly seek treatment, are now to be classed as criminals?

    If not, what is this AG trying to say? Because her diktats sound like something from soviet union, not Florida.

    Why isn’t she going after the corrupt Broward Sheriff and his crooked, Obama-stooge, school superintendent for allowing the Parkland shooting?

    If this isn’t stopped, Florida will become South New Jersey.

    What is going on here? Is Nikki Fried blackmailing these officials into getting on her confiscatory side?

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