Florida Governor, AG ask appeals court to uphold preemption law, penalize local officials who regulate firearms

Lee’s note: This just in from the News Service of Florida:


November 25, 2019

Jim Saunders

TALLAHASSEE — Pointing to a “hierarchical relationship” with local governments, the state late Friday asked an appeals court to uphold a 2011 law that has threatened tough penalties if city and county officials approve gun regulations.

Lawyers in the offices of Attorney General Ashley Moody and Gov. Ron DeSantis filed a 42-page brief arguing that the 1st District Court of Appeal should overturn a circuit judge’s ruling that said parts of the law were unconstitutional.

Florida since 1987 has barred cities and counties from passing regulations that are stricter than state firearms laws, and the penalties in the 2011 law were designed to strengthen that “preemption.” The law, for example, could lead to local officials facing $5,000 fines and potential removal from office for passing gun regulations.

The brief filed Friday cited a “hierarchical relationship” between the state and local governments and said the Florida Constitution “subjugates local governments’ authority to that of 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.”

But as an indication of the potential legal stakes of the case, the Florida League of Cities and the Florida Association of Counties on Monday filed a document requesting approval to submit a friend-of-the-court brief on behalf of the dozens of local governments and officials challenging the law.

“The resolution of the question on appeal is of great importance to the League and FAC (Florida Association of Counties) and their memberships of diverse local governmental entities across the state of Florida,” the request said. “A determination that the penalty provisions are constitutional increases the threat of liability at significant cost to local government officials and will also have a chilling effect on individuals desiring to serve in local government.”

Local governments and officials filed three lawsuits challenging the 2011 law after last year’s mass shooting at Marjory Stoneman Douglas High School in Parkland that killed 17 people. The lawsuits were ultimately consolidated in Leon County circuit court.

Attorneys for the local governments wrote in a February court document that city and county officials had been urged to take actions after the Marjory Stoneman Douglas shooting. Those requests involved such things as requiring procedures or documentation to ensure compliance with background checks and waiting periods for gun purchases and requiring reporting of failed background checks.

But the attorneys said local governments refrained from going ahead with the proposals because of the potential penalties in state law. Along with officials facing the possibility of fines and removal from office, the law would allow members of the public and organizations to receive damages up to $100,000 and attorney fees if they successfully sue local governments for improper gun regulations.

Leon County Circuit Judge Charles Dodson in July found parts of the law unconstitutional, citing issues related to “legislative immunity,” which protects local government officials in their decision-making processes. He also pointed to the constitutional separation of powers, as judges could be asked to rule on penalizing local officials.

“Because local governments must have what amount to small legislatures, and because courts cannot interfere in legislative processes, neither this court, nor any other court in Florida, can enforce the civil penalty provisions (of the law) against local legislators,” Dodson wrote.

But the attorneys for Moody and DeSantis rejected such arguments in Friday’s brief, repeatedly citing the state’s authority over local governments.

“The state’s position is that the Legislature may penalize local officials for acting outside the scope of their authority because there is no ‘separation of powers’ doctrine that bars the Legislature from holding them accountable for their official actions,” the brief said.

Attorneys for the cities and counties will file a brief at the appeals court within the next month. But when the state began moving forward with the appeal in July, Jamie Cole, the lead attorney for the local governments, said he expected Dodson’s ruling to stand.

“Judge Dodson’s decision was well-reasoned, well-written and supported by decisions from the U.S. Supreme Court, Florida Supreme Court and Florida’s district courts of appeal,” Cole said at the time.



About Author

Lee Williams can’t remember a time in his life when he wasn’t shooting. Before becoming a journalist, Lee served in the Army and worked as a police officer. He’s earned more than a dozen journalism awards as a reporter, and three medals of valor as a cop. He is an NRA-certified law enforcement firearms instructor, an avid tactical shooter and a training junkie. When he’s not busy as a senior investigative reporter, he is usually shooting his AKs, XDs and CZs. If you don’t run into him at a local gun range, you can reach him at 941.284.8553, by email, or by regular mail to 1777 Main St., Sarasota, FL 34236. You can follow him on Twitter: @HT_GunWriter and on Facebook @The Gun Writer.


  1. In 1987, the Legislature enacted the preemption statute, §790.33 Florida Statutes. The reason was that since the state was now the issuer of concealed carry licenses valid statewide, the laws needed to be consistent within the state. The original statute declared all local ordinances regulating firearms and ammunition null and void, and simultaneously forbidding new ordinances. Naievely, the Legislature failed to attach penalties to the statute, believing the local governments would simply comply. They didn’t.

    In 2011, the Legislature was informed that it was being ignored, and over 300 local governments had ordinances on the books in defiance of statute. HB 45 was enacted and signed into law, applying strict penalties to the statute. Many local governments begrudgingly repealed offending ordinances, some of which are plaintiffs. Several refused, and continue to do so.

    Plaintiffs do not challenge preemption, but only the attached penalties. When all the rhetoric is boiled away, what’s left is that plaintiffs are admitting to the court they have, are, or will be violating the statute and don’t want to be punished for it. Essentially, they are requesting immunity from punishment for an offense they freely admit they wish to commit.

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