Legal loophole creates confusion over prosecution of teens with guns

President Biden, in a prime-time address last week, called on Congress to ban semiautomatic “assault style” rifles – or at least raise the age for legal purchase from 18 to 21.

He was reacting to the spate of horrific and heartbreaking mass shootings that killed 22 people, most of them children, on May 24 at a Texas elementary school and 10 on May 14 at a Buffalo, New York, supermarket. The same night the president spoke on June 2, two women were shot and killed in front of a church in Ames, Iowa – my hometown – by a gunman who then killed himself, police said.

Meanwhile, Iowa lawmakers have been confused about whether current law allows 16- and 17-year-olds to carry handguns without fear of prosecution.

During debate on the final night of the legislative session, lawmakers said they had been told a loophole created by a law approved last year had made it “impossible to prosecute” a 16- or 17-year-old for possessing a firearm.

As part of an omnibus budget bill, lawmakers passed a provision May 24 aimed at closing the “loophole.” It takes effect upon enactment, so that issue will presumably be fixed as soon as the governor signs the bill. But larger questions remain.

“We wouldn’t have to close the loophole if last year this Legislature didn’t make it easier to access firearms without background checks,” Rep. Chris Hall, a Sioux City Democrat, said. “… Those are the unintended consequences of when politics take priority over good public policy.”

Last year, Republicans in the Legislature made Iowa a “permitless carry” state by doing away with the requirement that handgun buyers obtain a permit and submit to a federal background check. Federally licensed dealers would still have to carry out a background check on buyers. But for private sales from unlicensed sellers, buyers could escape any kind of background check.

Apparently, some law enforcement officials have been telling House Republicans this created a loophole for 16- and 17-year-olds caught with a gun.

“That was a big whoops with the original legislation and it’s good to fix it,” Rep. Mary Wolfe, D-Clinton, said during debate of House File 2589, even though she told me later in an interview she wasn’t convinced a loophole actually existed.

Rep. Steven Holt, R-Denison, the chairman of the Judiciary Committee, said in an interview Monday that prosecutors raised the issue after last year’s bill was approved to eliminate the need for a weapons permit. He said while they weren’t sure, it appeared it left the juvenile justice prohibition on carrying a firearm without a parallel crime for adults.

“So what public safety came back to us this session and said was that we’re a little concerned, we’re not sure, based on how the law is reading now, that we can … really take a weapon away from a juvenile that was, let’s say 16 or 17, because there is no commensurate crime for an adult,” Holt said.

“Honestly, I mean, I don’t think it occurred to a number of us that you know, this was going to be an issue because we had discussions with with the minority party about the importance of making sure that there weren’t any unintended consequences with constitutional carry,” Holt said.

Once prosecutors identified a potential issue, Holt said lawmakers want back immediately to fix it, “because obviously we don’t believe somebody 17 years of age should be driving around with you know, a handgun in their car or whatever.”

Frankly, I’m surprised Holt persuaded his fellow Republicans in the Legislature it was necessary to fix the law. In 2017, they made it legal for children to fire guns, with adult supervision. They’ve allowed people walking around with loaded weapons to shoot and kill anyone they think is threatening them under a “stand your ground” law, regardless of whether they were actually in danger and whether they could have avoided trouble by walking away. It’s just fine to carry firearms in the State Capitol. This year, they passed a bill allowing the use of AR-15s and similar high-powered weapons of war for deer hunting, for heaven’s sake. Common sense has left the building.

Was there really a loophole?

The fix-it provision approved last month would specifically make it a delinquent act to possess a firearm as a minor, which is a serious misdemeanor. But I talked to three lawyers who said it was already illegal for a minor to possess a firearm. Wolfe speculated that this was aimed at prosecuting older teenagers in adult court, but other lawyers I talked to weren’t aware of any barrier to that under current law.

So either Republican lawmakers created a potentially serious loophole with last year’s bill – or they rammed through a “fix” that was at best unnecessary and at worst, carries its own unintended consequences.

One of those potential consequences came up during debate that night. Wolfe pointed out on the floor that it would be a violation of state law for lawmakers to debate the amendment without first obtaining a minority impact statement. Since 1993, state law has required a correctional impact statement for legislation that creates new crimes or higher criminal penalties. The analysis, to be done by nonpartisan legislative staff before the legislation is debated on the floor, would estimate the bill’s potential for increasing Iowa’s disproportionate share of racial minorities who are incarcerated.

Lawmakers ignore requirement for minority impact report

House Speaker Pat Grassley, R-New Hartford, ruled Wolfe’s point out of order, saying in effect that the Legislature wasn’t bound by its own law, according to Wolfe.

Holt said he didn’t think a correctional impact statement was needed because the law wasn’t aimed at minorities.

“And my response to that was simply be this is not a racial issue,” Holt said. “We don’t believe that someone under 18 years of age should possess a firearm, we don’t care what color they are. And so that was the reason we did the legislation,” he said.

The law doesn’t specify that legislation creating a new crime or penalty be targeted at a racial group, however. It says a correctional impact statement must be attached to “any bill, joint resolution, or amendment which proposes a change in the law which creates a public offense, significantly changes an existing public offense or the penalty for an existing offense, or changes existing sentencing, parole, or probation procedures.”

It’s debatable at this point whether the juvenile gun update actually created a new crime or penalty – but there were several other provisions in the amendment that clearly did. One of those was creation of a new crime of assisted reproduction fraud, aimed at cases where a baby conceived through in vitro fertilization ends up being the biological child of the doctor or someone other than the parents’ chosen sperm donor. Another was a provision increasing the penalty for dependent adult abuse that results in death.

Wolfe, who is a defense attorney, and other lawyers have told me the failure to produce a correctional impact statement could make these laws vulnerable to challenge in court. It’s hard to predict whether this could actually set a criminal free. Chances are, the only real opportunity for censure is in the court of public opinion.

Hall, speaking on the floor, pointed out the hypocrisy of the majority party deciding the laws they pass do not apply to them.

“We are disavowing the laws that we have written at the same time that we’re asking the citizens of Iowa to follow new ones. It’s poorly thought out,” he said.

To say the least. But should someone succeed in getting one of these laws thrown out because legislators who passed them didn’t follow the law, I suspect the GOP majority will blame “activist” judges and not their own slapdash and irresponsible lawmaking. The people who will suffer are those victims or loved ones who are denied justice because the people in power think they’re above the law.