Florida revamps lawsuit challenging federal "gun show loophole," cites lower attendance
TALLAHASSEE — Florida this week revamped a lawsuit that challenges a new federal rule requiring more gun sellers to be licensed and run background checks on buyers, in part pointing to lower attendance at gun shows.
Lawyers for the state raised the gun-show issue because they said the rule is reducing tax revenue from purchases of admission tickets. Biden administration attorneys last month argued that an initial version of the lawsuit should be dismissed because the state had not shown legal standing — an issue that lost tax revenue could address.
The revised lawsuit, filed Monday in federal court in Tampa, said the state's "asserted injury — lost tax revenue — is clear and ongoing."
"Ordinarily, gun shows in Florida during the summer months of June, July and August enjoy high attendance rates — often hosting thousands of people at a single show," lawyers in Attorney General Ashley Moody's office wrote. "But since the challenged rule went into effect on May 20, attendance at these summer gun shows across the state has decreased precipitously. In some parts of Florida, total attendance at such shows have dropped by as much as 50 percent, costing the state revenue from the 6 percent sales tax it would have earned on each admission ticket."
Moody filed the initial version of the lawsuit May 1, shortly after the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives finalized the rule. The rule is an outgrowth of a 2022 federal law, known as the Bipartisan Safer Communities Act, that made changes to the longstanding background-check system.
When the rule was finalized, the Biden administration said it was designed to close "loopholes" in the system that requires licensed gun dealers to run background checks. An overview posted on the White House website said "a growing number of unlicensed sellers continue to sell firearms for profit to complete strangers they meet at gun shows and online marketplaces, which has been a critical gap in the background check laws."
In part, the rule changed a definition of being "engaged in the business" as a firearms dealer who needs to be licensed, according to a motion filed last month by U.S. Department of Justice attorneys seeking to dismiss the initial version of the lawsuit. The revised definition applies to a "person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms. The term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of the person's personal collection of firearms."
Justice Department attorneys argued in the motion that the definition closely tracks the 2022 law. But Florida contends the rule violates what is known as the federal Administrative Procedure Act, saying in the revised lawsuit that the "Biden Administration now seeks to exploit the minor changes to federal law enacted in the BSCA (Bipartisan Safer Communities Act) to implement President Biden's preferred policies by executive fiat."
While most states rely on the FBI to conduct background checks, the Florida Department of Law Enforcement handles checks in Florida.
In both the initial and revised versions of its lawsuit, the state's attorneys argued that the rule would force the FDLE to conduct more background checks, requiring more resources. But in trying to show Florida has legal standing, the revised lawsuit added the gun-show tax issue issue and said the rule could pressure the state to change background-check laws.
The revised lawsuit said Florida has "enacted a statute in reliance on the status quo, and defendants have disrupted that status quo through implementation of an unlawful regulation."
But in the motion to dismiss the initial version of the lawsuit, Justice Department attorneys said Florida "has made the voluntary decision to add a layer of bureaucracy" and, as a result, does not have standing to challenge the rule.
"The Federal Bureau of Investigation operates the federal firearms background check system and offers full background check services to states for free," the motion said. "The majority of states rely on the FBI to conduct background checks, and those states incur no costs or burdens relating to background checks. The federal government has not forced Florida to conduct background checks; Florida has voluntarily taken on that burden."
After the revised lawsuit was filed, U.S. District Judge Charlene Edwards Honeywell on Tuesday issued an order that said the motion to dismiss the initial version was moot.
