Cities & Counties Take Aim At State Gun Law

By on April 13, 2018 in News Service of Florida

Florida – 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.”

Photo courtesy Freedom_Studio and Shutterstock.com.

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