By John Haughey | The Center Square
Florida local governments got a partial victory against state preemption in July when a state judge ruled imposing penalties on municipal officials for approving firearms ordinances and failing to rescind obsolete gun restrictions is unconstitutional.
But while Leon County Circuit Judge Charles Dodson's decision nixed punitive measures in the state’s preemption law, he also upheld the state Legislature’s right to prohibit local governments from adopting their own gun regulations.
Florida has barred cities and counties from passing firearms regulations stricter than state laws since 1987. With the support of the National Rifle Association (NRA), the Republican-controlled Legislature amended the law in 2011 to include penalties of up to $5,000 and removal from office for local officials who pass stricter gun regulations.
The amendments also allow citizens and organizations to sue for damages up to $100,000 and attorney fees if they successfully sue local governments for “improper” gun regulations.
Dodson found parts of the law violated constitutional “legislative immunity” and said it could present a potential conflict of interest in the constitutional separation of powers because judges could be asked to rule on penalizing local officials.
Gov. Ron DeSantis and state Attorney General Ashley Moody disagree and are appealing Dodson’s ruling before the 1st District Court of Appeal.
In a brief, they argued preemption is necessary to sustain the “hierarchical relationship” between the state and local governments and said the Florida Constitution “subjugates local governments’ authority to the Florida Legislature.”
“The trial court’s decision is premised on unsupported theories of immunity inconsistent with the constitutional supremacy of the state’s authority over its counties and municipalities,” the brief said. “If allowed to stand, the decision will not only invite the development of a patchwork regulatory regime in the area of firearms but also render the Legislature impotent to deter power grabs by local officials in other areas.”
In a friend-of-the-court brief, NRA attorneys wrote the punitive measures give needed teeth to the state’s 1987 preemption law “to ensure the exercise of the fundamental Second Amendment right is not infringed by local government.”
The NRA maintains “many local governments knowingly and contemptuously violated state preemption law to infringe the exercise of this fundamental constitutional right by many Florida citizens. Local governments and their officials are not above the law and should be held accountable when they violate the law. The Florida Legislature acted well within its powers to institute the challenged penalty provisions.”
On Dec. 29, attorneys representing 30 Florida cities, three counties and more than 70 elected officials filed a brief that describes the 2011 changes to the 1987 state preemption law as an “unnecessary and unconstitutional overreach” that violates constitutional legal immunities accorded local officials.
“These immunities underscore our republican form of government in which citizens choose their elected officials, who are then duty-bound to represent their constituents’ interests through legislative and regulatory initiatives,” the brief said. “Without immunity from liability, officials and localities are understandably likely to refrain from acting on matters they reasonably believe are both permissible and in the interest of their constituents, for fear of professional and financial ruin if it is later determined their belief was mistaken.”
The legislature’s authority over local governments is “not limitless,” the brief states, noting many Florida local governments have been thwarted from adopting gun control measures in the wake of the 2018 Valentine’s Day shooting at Marjory Douglas High School in Parkland.
“However, appellees have not voted on or enacted such restrictions – even when they believe that such actions would not be preempted – because they fear that such actions could possibly be interpreted after the fact as violating the preemption law, thereby subjecting them to the severe punishments of the penalty provisions,” the brief said.
The Florida League of Cities (FLC) and the Florida Association of Counties (FAC) are among those filing friend-of-the-court briefs on behalf of local governments and elected officials.
At least three bills relating to state preemption in gun laws have been pre-filed for the 2020 legislative session, which begins Jan. 14.
Companion Senate-House measures – Senate Bill 134 filed by Sen. Annette Taddeo, D-Miami, and House Bill 6009, filed by Rep. Dan Daley, D-Sunrise – seek to repeal the entire 1987 law.
SB 134 has been referred to the Senate Infrastructure & Security, Judiciary and Rules committees while HB 6009 has been assigned to the House Criminal Justice and Local, Federal & Veterans Affairs subcommittee and Judiciary Committee. Both await first hearings.
Rep. Cindy Polo, D-Hialeah, filed HB 885 on Dec. 9. It seeks to add language that states preemption does not automatically preclude a “county, agency, municipality, district, or other entity from adopting an ordinance that regulates the sale of firearms or ammunition on property that is owned by that county, agency, municipality, district, or other entity.”
“Local government should be able to determine whether or not they want a gun show held in their city,” Polo said in a statement. “They should be trusted enough to determine what is best for their communities. I live across the street from a venue that hosts gun shows on a regular basis, and although this bill won’t fully curb gun violence, I believe it’s a stepping stone in the right direction.”