Can cities in the state of Florida essentially ignore the state’s firearm preemption law that leaves gun regulation up to the state legislature? Absolutely, or so argue attorneys for a number of local politicians across the state that are challenging a 2011 law that allows officials to be fined or removed from office if they willfully violate the state’s preemption statute.
The state’s First District Court of Appeals heard arguments in that challenge on Monday, after a district court judge ruled back in July of 2019 that the 2011 law ruled the law to be unconstitutional, while upholding the underlying firearms preemption statute approved by lawmakers in 1987. In essence, the decision rendered the preemption law utterly toothless, which is why Attorney General Ashley Moody, Gov. Ron DeSantis appealed the decision to the First District.
Edward Guedes, representing the elected officials who originally filed suit against the 2011 law, argued in court Tuesday that local lawmakers should enjoy “absolute legislative immunity” for their official actions, even if doing so clearly violates state law.
“We are at a very important threshold, that once we cross it, local democracy becomes meaningless,” Guedes said.
But Judge Brad Thomas appeared unconvinced.
“Let’s go back to my hypothetical, where the local government knowingly passes an ordinance in violation of state law, imposes a 60-day potential jail time on a citizen, a citizen is arrested and put in jail under a county ordinance that was clearly preempted. Does the Legislature not have the right to prevent that kind of evil?” he asked.
“Not at the expense of constitutional principles,” Guedes replied.
It’s absolutely absurd that the legislature wouldn’t have the authority to prevent the abuse of the law, particularly at a time when advocates of police reform (including a lot of local officials) are arguing for more accountability for officers who willfully violate the law. Accountability to the law doesn’t just apply to law enforcement. It applies to public officials as well, and any lawmaker that would abuse their position by willfully passing a law that they know violates state statute doesn’t deserve to be in office in the first place.
According to the Sun-Sentinel newspaper, Florida Solicitor General James Percival agreed that the 2011 has a chilling effect on local lawmakers, and said that’s by design. The legislature told localities back in 1987 not to pass local gun laws, but some localities refused to get the message.
“If you think about what the Legislature was really trying to do here, what they were really trying to do is they are saying, ‘We don’t want to force individual citizens to have to go to court every time a local government passes something that is close to the margins. We want to shift the burden to local governments.’”
Cautious optimism is probably in order if you’re hoping for a good ruling from the appeals court, but regardless of which way the decision goes the loser is likely to appeal to the Florida Supreme Court to make a final determination about the legality of the law. Admittedly, I’m biased, but to me this is a no-brainer. A law that cannot be enforced is a non-entity, so if the state’s preemption law is to mean anything at all, then there must be consequences for those who willfully violate it in their official capacity. The state’s preemption law needs teeth if it is to mean anything at all, and the legislature was well within its powers to put those teeth in place.