The Florida Supreme Court heard arguments last week in a challenge to a 2011 state law surrounding guns. A preemption law passed in 1987 says municipalities cannot have gun regulations stricter than those passed by the state. The 2011 law boosted penalties for such occurrences -- and that’s what has local governments upset.
“As a past elected official, it's a very dangerous place to put in place fines for local officials to do their job,” says Gil Ziffer. He was a Tallahassee City Commissioner when he and other city leaders were sued in 2014 over a local gun policy. It had to do, in part, with firing a gun in parks and on city property.
“Since we weren't enforcing it because we hadn't enforced it since the preemption, we as a group decided and voted to just not remove it, which of course upset them very much,” Ziffer says, referring to Florida Carry and the Second Amendment Foundation, the gun rights groups that sued. A lower court and an appeals court sided with the City of Tallahassee since the gun policy was no longer being enforced.
The case now before the state’s high court began after the mass shooting at Parkland’s Marjory Stoneman Douglas High School in 2018. City and county officials wanted to take action at the local level, but the law says they can be fined $5000 and even removed from office for doing so.
Ziffer, who was president of the Florida League of Cities at the time, notes the 2011 law also allows citizens and organizations to receive attorney fees and damages if they successfully sue local governments for improper gun regulations.
“This whole process that we're going through with the Legislature is really scary, because right now it has to do with guns,” Ziffer says. “What happens if they choose to, let's say fine people, because (of) every mask that they find somebody wearing because that particular city said you should wear masks (against state law)? They get fined $5,000 each. When does all this end?”
Tallahassee is now among more than 30 municipalities along with dozens of individuals challenging those punishments before the state Supreme Court. Plaintiffs allege the law violates a type of legal immunity granted to local leaders and governments. The law was struck down by a Leon County circuit judge in 2019, and last year, an appeals court overturned the ruling.
“Local officials should not be held accountable financially, personally, for anything that they do in the course of their everyday business,” Ziffer says.
Arguing for the State in the case now being weighed by the Florida Supreme Court, Chief Deputy Solicitor General Daniel Bell pointed to the Florida Legislature’s authority over local governments.
“The state Legislature has the authority to legislate in any area not prohibited to it, like speech or religion. So, it's plaintiffs’ burden to identify a provision of the Constitution that restricts the Legislature's power to adopt penalties like this, and there simply isn't one,” Bell said.
Under the hierarchy established in the Florida Constitution, Bell added, “There's no reason the Legislature wouldn't be able to provide penalties for its statute, just like any other statute.”
