Class Action Lawsuit Against Florida Cops Not Alowing U 2 by A Gun

IN THE CIRCUIT COURT,
SECOND JUDICIAL CIRCUIT,

IN AND FOR
LEON COUNTY, FLORIDA
CASE NO.
DIVISION:
CHRISTOPHER PRETZER
an individual; MARK L. WOOD,
an individual; RICHARD A.
BARSKY; and FLORIDA CARRY,
INC., a Florida not-for-profit corporation
Plaintiffs,
and
RICK SWEARINGEN, individually

and in his official capacity, and
FLORIDA DEPARTMENT OF
LAW ENFORCEMENT
Defendants.
______________________________/
COMPLAINT
Plaintiffs CHRISTOPHER PRETZER, MARK L. WOOD, RICHARD A.
BARSKY and FLORIDA CARRY, sue RICK SWEARINGEN, individually and in
his official capacity, and FLORIDA DEPARTMENT OF LAW ENFORCEMENT
and states:
1. This is a Complaint for injunctive and declaratory relief and for
damages in excess of $15,000.00.
Parties
2. Plaintiff Christopher Pretzer is an individual residing in Charlotte
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County Florida.
3. Pretzer holds a valid Florida Concealed Weapon Firearms License
(CWFL).
4. Mark L. Wood, is an individual residing in Volusia County, Florida,
and holds a valid CWFL
5. Richard A. Barsky is an individual residing in Palm Beach, County
Florida, and holds a valid CWFL.
6. Plaintiff, Florida Carry, Inc., (“Florida Carry”), is a Florida not for
profit corporation existing under the laws of Florida.
7. Florida Carry’s purpose is to advance the fundamental civil right of all
Floridians to keep and bear arms for self-defense as guaranteed by the Second
Amendment to the United States Constitution and the Constitution of Florida's
Declaration of Rights.
8. Members of Florida Carry have had their right to purchase firearms
delayed for more than three days by the actions of Defendants as set forth herein.
9. Rick Swearingen is the Commissioner of the Florida Department of
Law Enforcement.
Background facts
10. The Florida Department of Law Enforcement is an agency of the State
of Florida.
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11. FDLE is responsible under Florida and federal law for the processing
of background checks related to the purchase of a firearm from licensed dealers in
the state of Florida
12. A person engaged in the business of selling a firearm is required to
obtain a Federal Firearms License (FFL).
13. FDLE established a division within FDLE called the Firearms
Purchase Program (FPP) to handle the processing of background checks pursuant
to Sec. 790.065, Fla. Stat.
14. Each resident of the state of Florida has the fundamental, enumerated
rights to keep and to bear arms. McDonald v. City of Chicago, 561 U.S. 742
(2010).
15. The rights to keep and bear arms necessarily include a corresponding
right to purchase a firearm.
16. Without the right to purchase a firearm the rights to keep and to bear
arms are meaningless.
17. The rights to keep and bear arms may be denied to certain persons
based on factors not applicable to Plaintiffs herein.
18. A person who is convicted of a felony as that term is defined by
Florida law loses the right to keep and bear arms.
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19. A person who has lost the rights to keep and bear arms will be
identified throughout this Complaint as a “prohibited person”.
20. A prohibited person may belong to one or more categories of
prohibited persons, i.e. be a convicted felon and be the subject of a domestic
violence or other injunction against violence or stalking.
21. A person who is not a member of any category of prohibited persons
has an unquestioned right to keep and to bear arms in defense of themselves and
the lawful authority of the state of Florida.
22. If the state seeks to deny the exercise of a constitutional right, it is the
state’s burden to justify its denial of that right.
23. It is the burden of FDLE to obtain competent substantial evidence
prior to the denial of a fundamental enumerated right.
24. If FDLE cannot meet its burden, it is not allowed to deny the exercise
of an enumerated fundamental right through indefinite delay.
25. Prior to losing the right to keep and bear arms, any person is entitled
to certain procedural and substantive due process protections under the
Constitution of the United States and the State of Florida.
26. When a person who is not a prohibited person seeks to purchase a
firearm and is denied the exercise of that right through indefinite delay, that person
suffers a denial of their constitutional right for any period of delay.
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27. The delay or denial of the exercise of a constitutional right, cannot be
fully compensated by the payment of monetary damages. See, Ezell v. City of
Chicago, 651 F.3d 684, 699 (7th Cir. 2011).
28. Additionally, a person whose fundamental, enumerated, constitutional
rights are denied through indefinite delay has a right to substantive and procedural
due process to vindicate their right without undue hardship or delay.
29. When an individual seeks to purchase a firearm from an FFL, federal
and Florida law requires the FFL to conduct a background check to determine the
eligibility of the purchaser. 1
30. The FFL is required to complete ATF Form 4473 (Firearms
Transaction Record), promulgated by FDLE. State v. Watso, 788 So.2d 1026 (Fla.
2d DCA 2001).
31. The FFL submits information to the FDLE FPP, pursuant to Sec.
790.065, Fla. Stat., and waits for a response from FDLE.
32. Form 4473 has a box for a control number that must be entered on the
4473 prior to the transfer of a firearm from the FFL to the purchaser.
33. A control number is required by federal law to be included on the
Form 4473 retained by the dealer that creates a record of the transaction and proof
of the background check.
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This Process is codified in Florida law in Sec. 790.065(2)(c)(1-8)
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34. The Control number is issued by FDLE FPP to the FFL
35. FDLE is required to respond to the FFL as to whether the person is
legally allowed to purchase the firearm and issue a control number to be entered on
Form 4473. Sec. 790.065, Fla. Stat.
36. Prior to the passage of Public Law 2018-3 (Marjory Stoneman
Douglas High School Public Safety Act), FDLE would give the licensed seller of a
firearm one of three responses in regard to a background check performed for the
purchase of a firearm; A (Approved, with control number), N (Non-Approval, with
control number), or a CN Conditional Non-Approval, with control number).
37. Upon the receipt of an Approved decision, the FFL can release a
firearm to the purchaser, subject to any waiting period mandated by state law.
38. If the FFL receives a Non-Approval the FFL cannot release the
firearm.
39. If the FFL receives a Conditional Non-Approval, the FFL cannot
transfer the firearm.
40. Pursuant to Sec. 790.065, FDLE must provide a Conditional Approval
number to the FFL if FDLE cannot determine the disposition of the basis for the
Conditional Nonapproval within 24 working hours. Sec. 790.065(2)(c)(2), Fla.
Stat.
41. In practice, a Conditional Approval number was not issued by FDLE.
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42. Instead of issuing a Conditional Approval number, the FFL would
write the Conditional Approval number on ATF Form 4473 and release the firearm
after the federally required three day wait.
43. “24 working hours” is defined in the statute as “8 a.m. to 5 p.m.
Monday through Friday, excluding legal holidays.” Sec. 790.065(2)(c)(2), Fla.
Stat.
44. Regardless of the response to the FFL from FDLE, a control number
was issued with all responses prior to March 2018.
45. If upon the expiration of the 24 working hours, the dealer does not
receive a notice from FDLE converting the Conditional Non-Approval to a Non-
Approval, FDLE “shall” provide the FFL with a Conditional Approval number.
Sec. 790.065(2)(c)(5), Fla. Stat.
46. However Federal law does require that a person with a Conditional
Approval not receive the firearm for three days, not including the day of purchase
or the day of pickup.
47. Once it has the Conditional Approval and the passage of the federally
mandated three days, the FFL may release the firearm to the purchaser if it has still
not received a Nonapproval from FDLE.
48. The FFL uses the previously issued control number to complete the
FDLE promulgated form.
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49. FDLE is allowed by law to continue to investigate any conditional
approvals to reach a final determination. Sec. 790.065(2)(c)(7), Fla. Stat.
50. A failure by FDLE to complete its research within three days means
the purchaser can take delivery of the firearm from the FFL, unless FDLE can
prove that the person is prohibited from purchasing a firearm.
51. In approximately March 2018 or shortly thereafter, FDLE established
and implemented new procedures for the processing of background checks.
52. Under its new procedures, FDLE has taken the position that after
March 9, 2018, it has been relieved of its obligation under Sec. 790.065, Fla. Stat.
to complete the processing of background checks for firearms purchases within 24
working hours.
53. Instead of timely completing background checks as required by Sec.
790.065, FDLE has stated that there is no time limit for it to complete a
background check. (Ex. A, Excerpted audio of Call with FDLE).
54. Sometime after March 8, 2018, FDLE FPP eliminated the Conditional
Non-Approval response and ceased issuing Conditional Nonapprovals and
Conditional Approvals required by Sec. 790.065, Fla. Stat
55. Post March 8, 2018 the three possible responses from FDLE are; A
(Approval), N (Non-Approval) or D (Decision Pending).
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56. Instead of complying with Sec. 790.065 and its time limitations, the
FPP began to respond with A (Approved), D (Denied), or DP (Decision Pending).
57. A control number is issued for Approved and Denied responses.
58. No control number is issued for a Decision Pending response.
59. By its decision to cease issuing control numbers for some
transactions, Defendants violated the provisions of Sec. 790.065, Fla. Stat.
60. By deciding to no longer issue a control number for some
transactions, Defendants promulgated or enacted a policy, rule or regulation
without the authority to do so and in direct contravention of Sec. 790.33, Fla. Stat.
61. By failing to issue a control number, Defendants denied Plaintiffs the
right to purchase a firearm even after the time mandated by law for Defendants to
complete the required background check.
62. FFLs are prohibited by federal law from transferring any firearm to a
purchaser without a control number.
63. A Decision Pending means the seller cannot release the firearm to the
purchaser until FDLE converts the Decision Pending to an Approval.
64. FDLE has repeatedly and consistently failed and refused to issue
control numbers with Decision Pending responses.
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65. The failure to issue a control number prevents the FFL from
completing FDLE’s promulgated form, thereby indefinitely delaying individuals’
right to purchase and take possession of a firearm.
66. This denial of rights through indefinite delay occurs regardless of
whether FDLE possesses competent substantial evidence on which to base its
denial of the exercise of a fundamental enumerated right.
67. Nothing in Florida or federal law authorizes a Decision Pending
response.
68. In operation and as a matter of practice, FDLE FPP has replaced the
Conditional Nonapproval and Conditional Approval responses with Decision
Pending.
69. A Decision Pending presumably indicates that FDLE claims to have
reason to believe that the purchaser of a firearm might be a prohibited person.
70. While it is possible that the purchaser is a prohibited person, it is only
a possibility.
71. If FDLE was able to establish at the time of its response that the
purchaser was in fact prohibited, FDLE would issue a Denial.
72. While the phrase ‘Decision Pending’ appears nowhere in Florida or
federal law, the change of the language used is not the issue.
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73. Since March 2018, FDLE has used the Decision Pending response to
deny through indefinite delay, the right of law-abiding Floridians to purchase
firearms.
74. Sec. 790.33, Fla. Stat., preempts any state agency, including FDLE,
from promulgating, enacting, or enforcing any ordinance, regulation, rule,
measure, directive, enactment, order or policy.
75. As it is express, field preemption, Sec. 790.33, Fla. Stat., also
preempts any co-regulation even if consistent with state law. Arizona v. United
States, 567 U.S. 387, 401 (2012)(“Where Congress occupies an entire field, as it
has in the field of alien registration, even complementary state regulation is
impermissible. Field pre-emption reflects a congressional decision to foreclose any
state regulation in the area, even if it is parallel to federal standards”).
76. Sec. 790.33 has as its purpose, “to provide uniform firearms laws in
the state; to declare all ordinances and regulations null and void which have been
enacted by any jurisdictions other than state and federal, which regulate firearms,
ammunition, or components thereof; to prohibit the enactment of any future
ordinances or regulations relating to firearms, ammunition, or components thereof
unless specifically authorized by this section or general law” Sec. 790.33(2)(a),
Fla. Stat.
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77. Sec. 790.33 has the additional purpose, “to deter and prevent the
violation of this section and the violation of rights protected under the constitution
and laws of this state related to firearms, ammunition, or components thereof, by
the abuse of official authority that occurs when enactments are passed in violation
of state law or under color of local or state authority” Sec. 790.33(2)(b), Fla. Stat.
78. Despite the express field preemption of any regulation by FDLE
regarding the processing of firearm purchases, FDLE has enacted policies, rules, or
regulations regarding the purchase of firearms.
79. The policies, rules, or regulations enacted by FDLE with the
knowledge of Swearingen or under his authority have caused Plaintiffs and class
members to be denied their fundamental right to keep arms through indefinite
delay of the exercise of their rights.
80. Plaintiffs’ and class members have been offered no opportunity to
determine the:
a. factual basis on which Defendants are depriving them of their rights.
b. legal basis on which Defendants are depriving them of their rights.
c. evidentiary basis on which Defendants are depriving them of their
rights.
81. Plaintiffs and class members have been denied a constitutional right
without procedural due process.
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82. Plaintiffs and class members have been denied a constitutional right
without substantive due process.
83. The denial of Plaintiffs’ and class members’ procedural and
substantive due process rights has been as a direct result of policies, rules, or
regulations enacted or enforced by Defendants.
Instant Facts
Plaintiff Pretzer:
84. On or about March 12, 2019, Plaintiff Christopher Pretzer sought to
purchase a firearm from a Federal Firearms Licensee (FFL) in Charlotte County,
Florida.
85. A Background Check was conducted by the seller through FDLE
pursuant to federal and Florida law.
86. The FFL handling Pretzer’s transaction conducted a background
check on Pretzer as required by Sec. 790.065, Fla. Stat.
87. The background check resulted in a Decision Pending response from
FDLE.
88. FDLE refused to issue a control number to the FFL from whom
Pretzer was purchasing his firearm.
89. Three months later Mr. Pretzer is still awaiting a resolution of his
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decision pending determination from FDLE.
Plaintiff Wood
90. In late January 2019, Plaintiff Christopher Wood sought to purchase a
firearm from a Federal Firearms Licensee (FFL) in Volusia County, Florida.
92. The FFL handling Wood’s transaction conducted a background check
on Wood as required by Sec. 790.065, Fla. Stat.
FDLE.
94. FDLE refused to issue a control number to the FFL from whom Wood
was purchasing his firearm.
95. Subsequent to receiving his decision pending, Wood hired and paid
attorney Noel H. Flasterstein to obtain and submit documentation to FDLE that he
was not a prohibited person in the form of a certified record from the Clerk of
Court for Orange County, Florida.
96. The record provided to FDLE by letter dated February 13, 2019
demonstrated that Wood was placed on probation on October 22, 1998 for a period
of one year. (Ex. B).
97. There is no record indicating that Wood failed to satisfactorily
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complete the conditions of his probation.
98. Four months later Mr. Wood is still awaiting a resolution of his
Plaintiff Barsky
99. On or about October 2018, Plaintiff Richard. A. Barsky sought to
purchase a firearm from a Federal Firearms Licensee (FFL) in Palm Beach County,
Florida.
101. The FFL handling Barsky’s transaction conducted a background
check on Barsky as required by Sec. 790.065, Fla. Stat.
FDLE.
103. FDLE refused to issue a control number to the FFL from whom
Barsky was purchasing his firearm.
104. Subsequent to receiving his decision pending, Barsky hired attorney
Noel H. Flasterstein to obtain and submit documentation to FDLE that he was not a
prohibited person in the form of a certified record from the Clerk of Court for Palm
Beach County, Florida.
105. The record provided to FDLE by letter dated November 19, 2018
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demonstrated that Barsky was arrested in 2009, but the State Attorney entered a
“No File” on the case. (Ex. C).
106. Seven months later Mr. Barsky is still awaiting a resolution of his
Process
107. Upon information and belief, on or about March 9, 2018, Defendants
instituted new procedures and policies for the processing of background checks for
persons attempting to purchase a firearm.
108. Defendants have enacted a policy of denying individuals the right to
purchase firearms without competent substantial evidence that the individual is a
prohibited person.
109. Defendants rely solely upon hearsay database entries to delay or deny
persons who are lawfully entitled to purchase a firearm.
110. The policy established by Defendants has no definite time period
within which a decision will be reached.
111. The policy established by Defendants does not provide for any
administrative or judicial review of the delay regardless of its length.
112. The policy established by Defendants does not comport with the
substantive or procedural due process right to purchase a firearm under Article I,
Sec. 8 of the Florida Constitution.
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113. During a phone call with FDLE FPP on April 2, 2019, FDLE
representatives notified Pretzer that FDLE was under no obligation to approve or
disapprove his purchase. (Ex. A).
114. During that same call FDLE informed Pretzer that there was no
timeline within which FDLE was obligated to complete the processing of his
Background Check.
115. During that same call FDLE informed Pretzer that the process could
take thirty days or more.
116. Under FDLE’s new policy, rule, or regulation, a person who gets a
Decision Pending is held in limbo.
117. The purchaser has no right to a hearing, no right to review, and no
right to know what evidence or basis FDLE has or is relying on to indefinitely
delay the citizen’s right to purchase.
118. The person whose rights are being denied has no process for
administrative review of the decision nor any way to know the exact nature of the
basis for FDLE’s denial of their rights through delay of the purchase.
119. FDLE is not in possession of any evidence that would establish
Pretzer, Wood, Barsky, or any class member is a prohibited person.
120. If FDLE possessed competent substantial evidence that Pretzer,
Barsky, Wood, or any class member was a prohibited person it would be obligated
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by law to issue a denial of the purchase.
121. A denial would trigger Plaintiffs’ and any class member’s right to a
review of their criminal history records review and correction and knowledge of on
what information FDLE was denying the individual their civil rights.
122. To the extent FDLE is in possession of any evidence that would lead
FDLE to conclude that any Plaintiff or class member is a prohibited purchaser, it
has an obligation to afford the individual substantive due process and procedural
due process if it delays their right to purchase a firearm for a period longer than
three days.
123. Each of the actions taken by FDLE to deny individuals their right to
purchase a firearm was taken knowingly and willfully, and deprived class members
of their fundamental right to purchase a firearm.
124. The knowing and willful nature of FDLE’s actions is demonstrated by
FDLE’s knowledge that it is compelled to comply with Sec. 790.065.
125. Any deviation from the provisions of Sec. 790.065 due to the
existence of contrary policies, rules, or regulations promulgated by FDLE is a
violation of Sec. 790.33, Fla. Stat.
126. All of the actions undertaken as alleged herein were under the
jurisdiction of Defendant Swearingen in his capacity as the Commissioner of
FDLE.
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127. As the appointed official responsible for the management of FDLE,
Defendant Swearingen is the person under whose jurisdiction the knowing and
willful violations of Sec. 790.033 occurred.
Class Action
Plaintiffs reallege paragraphs 1 through 130 as if set forth in full and further
alleges:
128. This action is brought on behalf of a class of individuals.
129. The class is defined as all persons who are persons not prohibited by
Florida or federal law from purchasing a firearm, who since March 9, 2018 have
attempted to purchase a firearm from a Federal Firearms Licensed dealer, and who
had their purchase of a firearm delayed for more than three business days, and
who:
a. Have had their right to purchase a firearm delayed without an
opportunity for hearing; or
b. Have had their right to purchase a firearm delayed without an
opportunity to review evidence against them; or
c. Have had their tight to purchase a firearm delayed without FDLE
possessing competent substantial evidence they are a prohibited
person; or
d. Have had their right to purchase a firearm delayed without an
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opportunity to challenge the admissibility of alleged information or
evidence in the possession FDLE, on which FDLE is relying to delay
the purchase; or
e. Have had their purchase delayed for more than three days, but have
since been issued an approval; or
f. Have had their right to purchase a firearm delayed for any reason not
specifically provided for by law.
130. The exact number of members is unknown to Plaintiff but is known
and ascertainable by the records of the Defendants.
131. Upon information and belief, the number could be in the thousands
based on the number of background checks performed by FDLE for the purchase
of a firearm since March 9, 2018 which may have resulted in a delay in excess of
three days for the purchaser to obtain their firearm.
132. The number of proposed class members makes separate joinder of
each class member impracticable.
133. Separate joinder would require the Court to adjudicate each
individual’s right to keep and bear arms.
134. Class certification will allow the Court to identify any policy
established by FDLE that impermissibly identifies individuals as prohibited
persons when they are not or when FDLE lacks competent substantial evidence
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that the individual is a prohibited person.
135. All proposed members of the class present similar issues of law and
fact, in that each has had their right to purchase and take possession of a firearm
delayed by the actions of FDLE.
136. Each of the class members is otherwise qualified to purchase and
possess firearms.
137. Alternatively, FDLE lacks competent substantial evidence on which
to base its denial of the exercise of a constitutional right by the class member.
138. All proposed members of the class are persons whose right to
purchase a firearm in order to exercise their fundamental enumerated rights to keep
and bear arms was denied through indefinite delay of their rights for a period
exceeding three days due to action or inaction by FDLE.
139. All proposed members of the class are persons who were required to
wait more than the three days provided for by federal law to exercise their right to
bear arms.
140. All proposed members of the class are persons who were delayed their
right to purchase a firearm contrary to the provisions of Sec. 790.065.
141. All proposed members of the class have been adversely affected by
rules, policies regulations, or procedures implemented by the Florida Department
of Law Enforcement Firearms Purchase Program.
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142. All class members like Pretzer, Wood, and Barsky, have had their
right to purchase a firearm delayed without competent substantial evidence on
which to do so.
143. All class members, like Pretzer, Wood, and Barsky, have been denied
any type of administrative review or judicial remedy for the denial of their rights.
Count 1- Violation of Sec. 790.33, Fla. Stat. by FDLE in promulgating policies,
rules, or regulations ultra vires.
Plaintiff realleges paragraphs 1-143 as if set forth in full and further alleges:
144. FDLE has promulgated regulations in violation of Sec. 790.33.
145. FDLE’s sole rule making authority, as it relates to the purchase of
firearms, is the authority to promulgate rules and procedures for a person denied
the right to purchase to request a criminal history records review.
146. FDLE has no authority to promulgate rules beyond those set forth by
statute, in relation to approving or denying the purchase of a firearm.
147. FDLE has established a policy, rule, or regulation that a person may
not receive a firearm until FDLE has completed it background check mandated
under Sec. 790.065.
148. FDLE has established an additional policy, rule, or regulation, that it
will complete said background check within its own time frame.
149. FDLE has established a policy, rule, or regulation that it may take as
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long as it wishes to complete said background checks.
150. FDLE has established a policy, rule, or regulation prohibiting FFL
dealers from releasing firearms to lawful purchasers while it completes its
background check.
151. None of the policies, rules, or regulations are within the authority of
FDLE to promulgate. See, Sec. 790.33, Fla. Stat.
152. By promulgation of said policies, rules, or regulations, Pretzer, Wood,
and Barsky, and class members have been denied their fundamental enumerated
right to purchase a firearm in a timely manner and without indefinite delay.
153. The delay in the right to exercise their fundamental right to keep arms,
has harmed Plaintiff and class members.
154. Class members have suffered actual non-economic damages, through
the denial of their constitutional rights as a result of FDLE’s ultra vires
promulgation of polices, rules, or regulations.
155. One of more class members have suffered actual economic damages
by hiring an attorney to seek to expedite the review of their pending decision, by
providing records to FDLE.
156. Despite providing documents demonstrating that the information
relied upon by FDLE is inaccurate or incomplete, one or more class members
continue to be denied their fundamental right to obtain a firearm.
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157. FDLE has knowingly and willfully promulgated or enacted these new
rules, policies, and regulations without any statutory authority to do so.
WHEREFORE, Pretzer, Wood, and Barsky, on behalf of themselves and all
class members similarly situated requests:
a. A Declaratory Judgement that FDLE is prohibited from delaying
purchases of firearms for more than three days;
b. A Declaratory Judgment that FDLE is required to complete all
background checks as mandated in Sec. 790.065;
c. A Declaratory Judgment that any FDLE policy, rule, or regulation
extending the time to complete a background check beyond three days
was created without authority and in violation of Sec. 790.33, Fla.
Stat.
d. A Declaratory Judgment that FDLE is prohibited from promulgating
any policy, rule, or regulation regarding the purchase and transfer of
firearms, not specifically authorized by the Florida Constitution or
general law.
e. A Declaratory Judgment that the actions of FDLE as set forth herein
were a knowing and willful violation of Sec. 790.33, Fla. Stat.
f. Injunctive relief ordering FDLE to strictly comply with the provisions
of Sec. 790.065, including but not limited to issuing a control numbers
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with all responses to background check requests by FFLs.
g. Injunctive relief ordering FDLE to restore its prior policy of issuing
only the responses mandated by the Legislature in Sec. 790.065, Fla.
Stat.
h. An award of damages in the amount of $100.00 per day in actual non-
economic compensatory damages to each class member for the
deprivation of their fundamental right to purchase and possess
firearms, if their rights were delayed in excess of three days, not
including the date of purchase or the required date of delivery.
i. An award of damages in the amount of any attorneys’ fees, restocking
fees, or other economic damages suffered by any class member plus
interest as provided by statute for the loss of use of their money.
j. An award of attorneys’ fees for bringing this action.
k. All other relief deemed just and equitable by the Court.
Count 2- Violation of Sec. 790.33, Fla. Stat. by FDLE in promulgating policies,
rules, or regulations contrary to express state law.
Plaintiff realleges paragraphs 1-143 as if set forth in full and further alleges
158. FDLE has promulgated or instituted new policies, rules, or regulations
on or after March 9, 2018.
159. The new policies, rules, or regulations, include:
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a. The elimination of the Conditional Nonapproval response mandated
by Sec. 790.065;
b. Not issuing a Conditional Nonapproval number with all delayed
background check responses as mandated by Sec. 790.065;
c. Creating a new response, Decision Pending, which is not authorized
by Sec. 790.065.
d. Ignoring the requirement of Sec. 790.065 that all verification of
delayed background checks be completed within 24 working hours.
e. Ignoring the requirement to provide FFLs with a conditional approval
number if the department is unable to determine disposition
information within the allotted time period. Sec 790.065(2)(c)(5), Fla.
Stat.
160. The new policies, rules, or regulations are directly contrary to the
provisions of state law.
161. Regardless of any authority FDLE might possess to promulgate
policies, rules, or regulations for some purposes, no policies, rules, or regulations
may be enacted or enforced in direct contravention of express statutory obligations.
162. Sec. 790.065, Fla. Stat. is the controlling statute which imposes
certain time obligations, and duties to act, toward those attempting to purchase a
firearm.
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163. By its promulgation, or enactment of new policies, rules, or
regulations after March 9, 2018, FDLE has directly contradicted state law and has
denied class members their fundamental rights to certain processes under state law.
164. The promulgation or enactment of a policy, rule, or regulation directly
contrary to the laws of the state governing the purchase of firearms is a violation of
Sec. 790.33, Fla. Stat.
165. FDLE has knowingly and willfully. promulgated or enacted these new
rules, policies, and regulations in direct contravention of the provisions of Sec.
790.065.
c. A Declaratory Judgment that any FDLE policy, rule, or regulation
extending the time to complete a background check beyond three days
was is contrary to the provisions of Sec. 790.065 and in violation of
Sec. 790.33, Fla. Stat.
d. A Declaratory Judgment that FDLE is prohibited from promulgating
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any policy, rule, or regulation regarding the purchase and transfer of
firearms in contravention of Sec. 790.065, Fla. Stat.
were a knowing and willful violation of Sec. 790.33, Fla. Stat.
Stat.
k. All other relief deemed just and equitable by the Court
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Count 3- Violation of Sec. 790.33, Fla. Stat. by FDLE in enforcing a policies,
rules, or regulations not provided for in Sec. 790.065 against individuals
attempting to purchase firearms resulting in a delay and denial of the exercise
of a constitutional right.
Plaintiff realleges paragraphs 1-143 as if set forth in full and further alleges
166. FDLE has promulgated or instituted new policies, rules, or regulations
on or after March 9, 2018 that it is enforcing against Pretzer, Wood, Barsky and
class members.
167. The new policies, rules, or regulations, include:
a. The elimination of the Conditional Nonapproval response mandated
by Sec. 790.065;
b. Not issuing a Conditional Nonapproval number with all delayed
background check responses as mandated by Sec. 790.065;
c. Creating a new response, Decision Pending, which is not authorized
by Sec. 790.065.
d. Ignoring the requirement of Sec. 790.065 that all verification of
delayed background checks be completed within 24 working hours.
e. Ignoring the requirement to provide FFLs with a conditional approval
number if the department is unable to determine disposition
29
information within the allotted time period. Sec 790.065(2)(c)(5), Fla.
Stat.
168. The new polices, rules, and regulations are being enforced against the
class representatives and members of the class to deprive them of their
fundamental right to purchase firearms.
169. The enforcement of these polices rules and regulations have deprived
class representatives and class members of constitutional rights recognized by the
Second Amendment to the Constitution of the United States, and Art. I, Sec. 8 of
the Florida Constitution.
170. The constitutional rights of Plaintiffs are further protected against
state agency interference by the provisions of Sec. 790.33, Fla. Stat.
171. The violation of the Plaintiffs’ and class members’ rights as a result of
enforcement of polices, rules, and regulations against Plaintiffs and class members
has resulted in damage to Plaintiffs and class members.
172. FDLE has knowingly and willfully enforced its rules, policies, and
regulations against Plaintiffs and class members.
173. Plaintiffs and class members have suffered actual damages, bot
economic and non-economic as a result of FDLE’s enforcement of policies, rules,
and regulations
30
c. A Declaratory Judgment that the enforcement of any FDLE policy,
rule, or regulation extending the time to complete a background check
beyond three days is contrary to the provisions of Sec. 790.065 and in
violation of Sec. 790.33, Fla. Stat.
d. A Declaratory Judgment that FDLE is prohibited from enforcing any
policy, rule, or regulation regarding the purchase and transfer of
firearms in contravention of Sec. 790.065, Fla. Stat.
were to enforce a preempted policy, rule, or regulation and that such
enforcement was a knowing and willful violation of Sec. 790.33, Fla.
Stat.
31
Stat.
k. All other relief deemed just and equitable by the Court
Count 4- Violation of Sec. 790.33, Fla. Stat. by Defendant Swearingen in
promulgating policies, rules, or regulations ultra vires.
Plaintiffs reallege paragraphs 1 through 157 as if set forth in full and further
alleges,
174. Swearingen is the Commissioner of FDLE and held such position at
all times relevant to this Complaint.
175. Swearingen was appointed as the administrative agency head FDLE.
176. All of the actions by FDLE alleged herein were knowing and willful
32
by FDLE.
177. As the administrative agency head, Swearingen should be fined for
the violations that occurred under his jurisdiction.
178. As the administrative agency head, Swearingen knowingly and
willfully violated the provisions of Sec. 790.33 by allowing new policies, rules and
regulations regarding the purchase, sale and transfer of firearms to be enacted
without any authority for his agency to enact the polices, rules, or regulations.
179. As the administrative agency head the actions taken under Swearingen
resulted in the denial of Plaintiffs’ and class member’s constitutional right to
purchase firearms.
WHEREFORE, Plaintiffs seek a judgment that:
a. The knowing and willful violations of Sec. 790.33, Fla. Stat., by
FDLE occurred under the jurisdiction of Swearingen;
b. Swearingen be assessed a civil fine of not more than $5,000.00
pursuant to Sec. 790.33(3)(c), Fla. Stat.
c. Swearingen knowingly and willfully violated the provisions of Sec.
790.33, Fla. Stat., while acting in his official capacity for an entity
enacting a rule or regulation in violation of Sec. 790.33(3)(e), Fla.
Stat.
33
promulgating policies, rules, or regulations contrary to express state law.
Plaintiffs reallege paragraphs 1 through 143 and 158 through 165 as if set
forth in full and further alleges,
180. Swearingen is the Commissioner of FDLE, and held such position at
by FDLE.
willfully violated the provisions of Sec. 790.33 by allowing new policies, rules and
regulations regarding the purchase, sale and transfer of firearms to be enacted that
were contrary to the provisions of Sec. 790.065, Fla. Stat.
purchase firearms.
34
pursuant to Sec. 790.33(3)(c), Fla. Stat.
enacting a rule or regulation in violation of Sec. 790.33(3)(e), Fla.
Stat.
enforcing a policies, rules, or regulations not provided for in Sec. 790.065
against individuals attempting to purchase firearms resulting in a delay and
denial of the exercise of a constitutional right.
Plaintiffs reallege paragraphs 1 through 143 and 166 through 173 as if set
forth in full and further alleges,
186. Swearingen is the Commissioner of FDLE and held such position at
by FDLE.
35
willfully violated the provisions of Sec. 790.33 by enforcing policies, rules and
regulations regarding the purchase, sale and transfer of firearms that were contrary
to the provisions of Sec. 790.065, Fla. Stat.
purchase firearms.
pursuant to Sec. 790.33(3)(c), Fla Stat.
enforcing a rule or regulation in violation of Sec. 790.33(3)(e), Fla.
Stat.
Plaintiffs demand trial by jury on all issues so triable.
36
Dated this 13th day of May 2019
Kingry & Friday, PLLC
/s/ Eric J. Friday
ERIC J. FRIDAY, ESQUIRE

Florida Bar No.: 0797901
1919 Atlantic Blvd.
Jacksonville, FL 32207
Telephone: (904) 722-3333
Service@ericfriday.com
Efriday@ericfriday.com
Law Offices of Noel H. Flasterstein

Noel H. Flasterstein
Florida Bar No.: 189553
1700 S. Dixie Hwy, # 501
Boca Raton, FL 33432
813-919-7400
NHFLaw@hotmail.com
37
EXHIBIT A
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EXHIBIT B
EXHIBIT C

Class Action Lawsuit Against Florida Cops Not Alowing U 2 by A Gun

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Class Action Lawsuit Against Florida Cops Not Alowing U 2 by A Gun

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IN THE CIRCUIT COURT,

SECOND JUDICIAL CIRCUIT,

RICK SWEARINGEN, individually

Plaintiffs CHRISTOPHER PRETZER, MARK L. WOOD, RICHARD A.

BARSKY and FLORIDA CARRY, sue RICK SWEARINGEN, individually and in

his official capacity, and FLORIDA DEPARTMENT OF LAW ENFORCEMENT

1. This is a Complaint for injunctive and declaratory relief and for

damages in excess of $15,000.00.

2. Plaintiff Christopher Pretzer is an individual residing in Charlotte

3. Pretzer holds a valid Florida Concealed Weapon Firearms License

4. Mark L. Wood, is an individual residing in Volusia County, Florida,

and holds a valid CWFL

5. Richard A. Barsky is an individual residing in Palm Beach, County

Florida, and holds a valid CWFL.

6. Plaintiff, Florida Carry, Inc., (“Florida Carry”), is a Florida not for

profit corporation existing under the laws of Florida.

7. Florida Carry’s purpose is to advance the fundamental civil right of all

Amendment to the United States Constitution and the Constitution of Florida's

8. Members of Florida Carry have had their right to purchase firearms

9. Rick Swearingen is the Commissioner of the Florida Department of

10. The Florida Department of Law Enforcement is an agency of the State

of background checks related to the purchase of a firearm from licensed dealers in

the state of Florida

12. A person engaged in the business of selling a firearm is required to

obtain a Federal Firearms License (FFL).

13. FDLE established a division within FDLE called the Firearms

Purchase Program (FPP) to handle the processing of background checks pursuant

to Sec. 790.065, Fla. Stat.

right to purchase a firearm.

arms are meaningless.

based on factors not applicable to Plaintiffs herein.

18. A person who is convicted of a felony as that term is defined by

Florida law loses the right to keep and bear arms.

identified throughout this Complaint as a “prohibited person”.

20. A prohibited person may belong to one or more categories of

prohibited persons, i.e. be a convicted felon and be the subject of a domestic

violence or other injunction against violence or stalking.

21. A person who is not a member of any category of prohibited persons

the lawful authority of the state of Florida.

state’s burden to justify its denial of that right.

23. It is the burden of FDLE to obtain competent substantial evidence

prior to the denial of a fundamental enumerated right.

of an enumerated fundamental right through indefinite delay.

to certain procedural and substantive due process protections under the

Constitution of the United States and the State of Florida.

26. When a person who is not a prohibited person seeks to purchase a

suffers a denial of their constitutional right for any period of delay.

fully compensated by the payment of monetary damages. See, Ezell v. City of

Chicago, 651 F.3d 684, 699 (7th Cir. 2011).

28. Additionally, a person whose fundamental, enumerated, constitutional

due process to vindicate their right without undue hardship or delay.

29. When an individual seeks to purchase a firearm from an FFL, federal

eligibility of the purchaser. 1

30. The FFL is required to complete ATF Form 4473 (Firearms

790.065, Fla. Stat., and waits for a response from FDLE.

33. A control number is required by federal law to be included on the

of the background check.

35. FDLE is required to respond to the FFL as to whether the person is

Form 4473. Sec. 790.065, Fla. Stat.

36. Prior to the passage of Public Law 2018-3 (Marjory Stoneman

purchase of a firearm; A (Approved, with control number), N (Non-Approval, with

control number), or a CN Conditional Non-Approval, with control number).

39. If the FFL receives a Conditional Non-Approval, the FFL cannot