Cities, Counties Take Aim At Florida Gun Law

April 13, 2018

Less than two months after a 19-year-old gunman shot dead 14 students and three faculty members at a Broward County high school, city and county officials in parts of Florida are pushing back against a state firearm law they say has created a chilling effect on their ability to respond to constituents’ demands.

Challenges to the 2011 “preemption” law, which bans local governments from imposing gun restrictions tougher than those in state laws, are just one of the ways local officials are fighting for stricter regulations in the wake of the Feb. 14 massacre at Marjory Stoneman Douglas High School in Parkland.

And Second Amendment proponents are firing back.

Leon County commissioners on Tuesday approved an ordinance, aimed at closing what is known as the gun-show “loophole,” that imposes a three-day waiting period and background checks for the private sales of weapons.

While the 2011 law bans local gun ordinances that go beyond state statutes, a 1998 constitutional amendment allows counties — but not cities — to impose up to five-day waiting periods and background checks on gun sales.

Seven counties — Broward, Hillsborough, Miami-Dade, Palm Beach, Pinellas, Sarasota and Volusia — already have ordinances requiring background checks and waiting periods for private gun sales. But the Second Amendment group Florida Carry has pledged to sue Leon County for including provisions that it says go beyond what the Constitution allows.

Meanwhile, three cities and a number of elected officials in Broward County this week filed a lawsuit challenging the 2011 law, arguing it hamstrings politicians in communities surrounding Parkland from being able to pass bans on detachable high-capacity magazines.

Coral Springs, Pembroke Pines, Coconut Creek and two officials from the cities allege in the lawsuit that provisions in the 2011 law violate the federal and state constitutions.

The plaintiffs believe a local ban on large-capacity magazines, used in a number of mass shootings across the country, would not violate the preemption law because the detachable devices are “optional firearm accessories.”

Lawyers for the cities argued the gun restrictions “will make their local communities safer — and might prevent or mitigate a future school shooting — without infringing on the right to keep and bear arms or violating the Firearms Preemption Law.”

But the local officials are worried that enacting such a prohibition could make them vulnerable to hefty penalties under the preemption law. Cities face the risk of lawsuits and potential damages of up to $100,000 and unlimited attorneys’ fees in each lawsuit. Public officials face removal from office and $5,000 fines.

The cities are asking a judge to declare the provisions “unconstitutional, unlawful and invalid” and are seeking an injunction preventing enforcement of the penalties.

“By threatening to punish local officials and their cities for quintessentially legislative acts like voting in favor of an ordinance, the state of Florida has improperly interfered with local democracy, establishing a system in which local officials’ legislative decisions are necessarily restrained by concerns about individual and municipal legal and financial liability instead of the safety and well-being of their constituents and communities,” lawyers for the plaintiffs argued in the 31-page complaint filed in Broward County circuit court.

Coral Springs Commissioner Dan Daley, a Marjory Stoneman Douglas High alum who wants to ban large-capacity magazines in his city and is a plaintiff in the lawsuit, called the “heavy handed” 2011 law one of “the most egregious” in the country.

“The current law has had a chilling effect on local leaders across this state who, because of the penalties, are hard-pressed to recommend even the most reasonable of gun reform measures in their own communities. The city of Coral Springs, and municipalities across this great state, have had enough and are standing up against this draconian law,” Daley said in a statement.

The lawsuit mirrors a broader challenge to the statute filed by 10 cities earlier this month in Leon County circuit court. Two cities, including Tallahassee, have since joined the suit, and Leon County also is considering joining the case.

The lawsuit contends the 2011 law, in part, violates constitutional limits on gubernatorial authority with respect to municipal officers, conflicts with the right of elected officials to legislative immunity and is “overbroad, in violation of local officials’ free speech rights.”

The legal challenges, and Leon County’s ordinance, are part of a nationwide response to the horrific Valentine’s Day shooting, which spawned demands for stricter gun measures, such as a ban on assault-style weapons.

“We expect cities and local officials in Florida and other states will continue to push back against limits on their ability to pass common-sense gun safety laws and protect their communities,” Eric Tirschwell, director of litigation at Everytown for Gun Safety Support Fund, told The News Service of Florida. Tirschwell is one of the lawyers representing the plaintiffs in the Broward County lawsuit.

But gun-rights groups maintain that the preemption law keeps Florida from having a patchwork of regulations that could put gun owners at risk as they travel in the state.

Marion Hammer, the National Rifle Association’s Florida lobbyist and a former president of the national organization, pointed the finger at a series of missteps by government officials who repeatedly ignored warning signs that 19-year-old Nikolas Cruz posed a threat to the community before Cruz used a semi-automatic rifle to shoot the students and faculty members in Parkland.

“Parkland had nothing to do with preemption. Parkland had to do with government officials failing to do their job, failing to deal effectively with a person with serious mental illness who clearly was a danger to himself or others,” she said in a recent telephone interview. “Allowing local governments to willy-nilly adopt gun control to pretend they’re doing something to cover their own deficiencies is ludicrous.”

The NRA, meanwhile, is challenging a new school-safety law passed last month in response to the Parkland massacre. The law, among other things, raised the minimum age from 18 to 21 and imposed a three-day waiting period for the sale of rifles and other long guns, such as the weapon Cruz legally purchased and used at his former school.

The age and waiting-period requirements already apply to buying handguns, but the NRA contends that raising the age to 21 for purchasing long guns is unconstitutional.

Sen. Bill Galvano, a Bradenton Republican who was instrumental in crafting the new law and who is slated to take over as Senate president after the November elections, told the News Service he doesn’t anticipate any changes to the 2011 preemption law coming from the Legislature.

“I have no indication that we’re going to go back and revisit simply because the lawsuits have been filed,” Galvano, a lawyer, said.

Florida’s Constitution “is more specific regarding the ability to regulate or curtail the Second Amendment rights that flow from the federal Constitution,” he said.

When asked what he would say to local officials who complain that the preemption law prohibits them from doing what their constituents want, Galvano pointed to the state law passed in March.

“That’s why we responded in such a comprehensive manner. Great time and diligence was taken in determining where we can make reasonable changes to gun-safety regulation without opening us up for a lawsuit,” he said. “It’s a balance, too. You still have the NRA suing on the other side.”

by Dara Kam, The News Service of Florida

Comments

9 Responses to “Cities, Counties Take Aim At Florida Gun Law”

  1. Supreme Court Ruling on This: on April 15th, 2018 11:16 pm

    From the Majority Opinion, Heller versus District of Columbia, 2008:

    Held: (that is, ruled.)

    (1) that the 2nd amendment right to own a firearm in the home for the purpose of self defense would exist even if the 2nd amendment did not. (short version: the 2nd amendment cannot be repealed.) reason: there is no reasonable way to keep firearms out of the hands of those who wish to do harm to others. since this is true and the delay of calling the police and waiting for their arrival is not practical, the right must exist so that society can peacefully exist.

    (2) the 2nd amendment is incorporated against the states. that is: states do not have the authority to override the amendment. cities and counties are automatically included in this prohibition against infringement.

    (3) the phrase “the right of the people” in 4 other places in the constitution refers to a right granted to the individual. by context in the document, “the right of the people” in the 2nd amendment refers to an individual right – that is: the argument by gun banners that the right only applies to members of a well regulated militia is invalid. (in this case, pro-ban side said the right only applied to members of the national guard!)

    (4) the argument “only applies to weapons in existence at the time of adoption” is specious and flies directly in the face of precedented case law which directly applies to the 1st, 4th, 5th, and 6th amendment. Therefore, the amendment *DOES* cover new weapons which did not exist at the time of adoption, the same way that the 1st amendment covers the internet, the 4th amendment covers wire taps, and the 5th amendment covers E-mail. *He listed the cases which expanded the coverage for the other rights.*

    (5) being necessary for the usage of a gun, any prohibition which makes ammunition hard to obtain will also be invalid.

    so…

    I do hope for all concerned that this helps.

  2. Rocky on April 15th, 2018 2:29 am

    Personally I think we all need to set our guns aside for a day, and take up axe handles. And, then we need to walk through all branches of government large and small, smacking elected representatives in the head, and see if MAYBE we can rattle some common sense back into them.

    The existing 2011 law was written to prevent a hodge podge of local gun laws, that would place law abiding citizens of the state of Florida in jeopardy every time they ventured out. It was designed to stop exactly what these morons are trying to create.

  3. Laughable on April 14th, 2018 10:40 pm

    I still find it amazing that the they are touting the “high capacity magazine” line, considering the shooter in south Florida did not use them (instead he had 15 ten round magazines). Not much media coverage on that fact either, go figure…

  4. David Huie Green on April 14th, 2018 6:53 pm

    REGARDING:
    “Gun laws need to be left up to the State of Fl, and kept consistent.”

    Actually, the Second Amendment forbids any infringement of the right to keep and bear arms. It doesn’t limit itself to Congress or the Federal Government.

    The laws which exist are only lawful because the Supreme Court says they are — which the Constitution allows them to do. The Supreme Court can’t exceed its power since the Construction calls it SUPREME. Of course, that power really only extends to issuing opinions/rulings which still requires the Executive Branch to carry out for anything to happen.

    David for good laws

  5. M in Bratt on April 13th, 2018 8:51 pm

    Gun laws need to be left up to the State of Fl, and kept consistent. If cities and counties are allowed to pass their own laws, the law abiding citizens won’t be able to keep up with what the law is in an area they are passing through.Imagine if you will, Santa Rosa County, or Gulf Breeze passing their own gun laws. An Escambia resident could possibly get in deep trouble while just going home from work in Escambia County to his home on the beach while possessing a firearm in a legal fashion in Escambia Co. All one needs to do is look at the statistics, the highest rate of gun related crimes are in the areas with the strictest gun regulations.

  6. Sedition on April 13th, 2018 7:56 pm

    Amendment II

    A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

    This should apply to states and the nation as a whole. The courts “opinions” should be null and void because the Bill of Rights limits GOVERNMENT, not the people. The courts, the third branch of government, has usurped power it does not legally have, much like the states have.

  7. Mr. Nobody on April 13th, 2018 10:59 am

    Well I say that the law abiding citizens will follow the rules imposed on them regardless of how they feel about the rule because they don’t want to go to jail. However criminals will not. So if the criminals use a weapon during the commission of a crime and police protection is 3-5 min away what are those law abiding citizens supposed to do to protect themselves? If we are in a public place and the majority of the law abiding citizens are carrying a weapon concealed and an active shooter situation occours then the situation would be stopped before the police ever arrive. If you don’t carry a weapon and someone next to you does and they stop the threat I’d be willing to bet the outlook of guns wouldn’t be so bad. We could always deputize everyone who wants to carry. No uniforms just a badge and permission to carry. I bet half of Florida would be on the police team. Sometimes the best deterrent is a show of force.

  8. jp on April 13th, 2018 9:58 am

    Anyone that has spent much time in South Florida will see that it is more like a South American country than the US. Spanish is the language most heard. Californians mostly in the north are wanting to split off and form a separate state from the loonies in the south part of the state.
    I propose that Florida be split at the Apalachicola River with the south and east portion be called the state of Portiflorida, or what ever people like George Soros suggest. The western portion is the only part that remotely resembles the old Florida, and that wasn’t bad.
    It is obvious to anyone that hasn’t been in a coma that guns and magazines were not the problem with the last or any mass shootings, and that futher gun and magazine restrictions will not stop a crazy, determined person.
    London citizens have no guns and has now passed NY City in assaults – with knives that they now want to ban. Also check out Australia’s gun and other violence since they confiscated virtully all guns.
    Oh, and Porta Rico is not a safe place to visit either with their gun restrictions that the drug and gang people ignore.
    Then check the history of any and all countries that confiscated guns.
    If the 2nd Amendment is abolished or weakened the rest of our Constitution will rapidly follow.
    In south FL the liberal gun banners were well organized and well financed before the school shooting, just waiting for an opportunity.
    It was a sad day when our Senator Broxson voted for, and Govonar Scott signed the knee jerk law FL now has, and will do nothing to curb violent acts. I can see that Scott wants to be elected to a statewide office, but not Broxson’s vote?

  9. Avis on April 13th, 2018 2:24 am

    Most gun owners and even NRA supporters do not oppose the restriction of deadly weapons in the hands of criminals and other evil doers. The problem comes in to play when the precedent is set with the most minute restriction toward that end. It’s like a tiny pin hole in the dam. There’s just no stopping it from there. There is a group, and we all know who they are, that wants complete and absolute disarming of Americans whether law abiding or criminally insane. Only the law abiding would comply with such a law. Law enforcement cannot keep pace with the criminals as it is, try to imagine if they lose the help of the silent (armed) majority what a circus it would be. I think its best to leave things like they are and let it play out. Constantly ringing the bell of discontent about guns this, guns that, only gives hope to the criminal that he will soon operate with impunity and he can finally be in charge of us all with his illegal guns. Nope, I think I’d rather have it and not need it than to need it and not have it.





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