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Lawyers: Fort Lauderdale is misinterpreting gun law

by William Hladky

An apparent misreading of state law by the Fort Lauderdale Police has kept officers from enforcing a Broward County ordinance that requires criminal background checks on gun buyers at gun shows.

Two legal experts have told BrowardBulldog.org that the Police Department is wrong to believe that a state statute enacted last year invalidates the county background checks ordinance. Similarly, the Hillsborough County Attorney said in a memo this month that his county continues to have the "authority to require criminal background checks."

The 1998 Broward County ordinance says criminal background checks must be done on gun buyers when sales occur "on property to which the public has a right of access." A violation is a misdemeanor.

"I think the police have it wrong."

But Fort Lauderdale Police spokeswoman Det. DeAnna Greenlaw said the county ordinance no longer is in effect due to Florida Statute 790.33, enacted in 2012. That statute declares any city or county ordinance that regulates gun possession and sales "null and void."

The Fort Lauderdale Police Department's legal position is important. Broward's two largest gun shows, sponsored by Ohio-based Suncoast Gun Shows and North Lauderdale's Trader Ritch, are held in Fort Lauderdale.

Legal experts say the city's legal interpretation is wrong. They say the law the city cites is trumped by an amendment to Florida's Constitution, passed by voters in 1998, that gives counties the option to enact background check ordinances like Broward's.

"Each county shall have the authority to require a criminal history records check…in connection with the sale of any firearm…when any part of the transaction is conducted on property to which the public has the right of access," the amendment says.

'Police have it wrong'

Robert Jarvis, a constitutional law professor at Nova Southeastern University, explained that the null-and-void statute has no impact on the county's ordinance because it is rooted in the state constitution.

"A statute cannot nullify a constitutional vision," Jarvis said. "I think the police have it wrong."

"You have a right to bear arms, but the state has a right to regulate," Jarvis said. "When it comes to the Second Amendment, to firearms, a lot of misinterpretation and misinformation exists."

Andrew McClurg, a firearms policy expert and law professor at the University of Memphis, agreed.

Jarvis "is certainly correct that a constitution trumps a statute. That's a basic principle of constitutional law," said McClurg, adding that the amendment appears to grant Florida's counties the authority to enact background check ordinances.

The profile of Broward's ordinance may rise with the U.S. Senate's recent defeat of efforts to close loopholes and strengthen the federal background check law for gun buyers.

Broward State Attorney's spokesman Ron Ishoy said in an email that his office was unable to find "any time where a law enforcement agency in Broward has brought us a case involving Broward County ordinance sec. 18-97."

Nevertheless, Fort Lauderdale Mayor John P. "Jack" Seiler said in an interview that his city is enforcing the background check ordinance through another state statute, 790.065, regarding "the sale and delivery of firearms."