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By Lee Williams

If the gun-banners get their way, they’ll be importing more from Florida than just citrus.

A lawsuit now before the Florida Supreme Court seeks to dismantle the state’s powerful preemption statute, which safeguards all pro-gun laws in the Gunshine State, including the Castle Doctrine, the “Stand Your Ground” statute and shall-issue concealed carry.

Florida’s preemption statute prohibits anyone other than the state legislature from regulating firearms and ammunition. If a local government such as a city council, county commission or school board tries to create their own gun regulations, the preemption statute allows for their members to be removed from office and fined up to $5,000, which the statute requires them to pay personally, rather than with taxpayer dollars.

In addition, the local government can be liable for damages of up to $100,000 plus uncapped attorney’s fees. The law was passed in 1987, but it didn’t get teeth – legal penalties – until 2011. Without the preemption statute, anti-gun cities and counties could prohibit concealed carry, which would turn the state into a complex patchwork of gun-free zones.

More than 40 states have preemption statutes prohibiting local governments from regulating firearms. Six states – Arizona, Florida, Kentucky, Mississippi, Oklahoma and Texas – can penalize elected officials for violating their statutes.

Enter Nikki Fried

In June, Florida Agriculture Commissioner Nikki Fried and a coalition of liberal local governments petitioned the Florida Supreme Court to hear their lawsuit against the preemption statute. It was one of three lawsuits filed against the law after the 2018 Parkland massacre.

Fried’s request came a month after the 1st District Court of Appeals denied to certify the group’s “questions of great public importance,” which could have created a path to the Florida Supreme Court.

In essence, Fried and her group are asking the Florida Supreme Court to grant them immunity from the penalties they could face for violating the preemption statute. They don’t contest the statute, just the penalties, which they claim are unconstitutional, because the local lawmakers don’t want to be fined or fired for creating their own anti-gun regulations.

On Tuesday, Fried and her group filed a joint brief with the Florida Supreme Court, and a subsequent press release.

“Petitioners ask this Court to recognize a fundamental principle of democratic governance: local elected officials acting in their legislative capacities are entitled to the same immunities and protections historically afforded to all legislators in this country, and the judicial power of the state does not extend to impose financial liability on local governments for the performance of discretionary governmental functions. While the judiciary can, and should, exercise its power to determine whether a local law is preempted (and thus invalid), it may not punish local governments or their elected officials for their legislative actions as is contemplated by the Penalty Provisions. This Court should reverse the First District’s decision,” the petitioners’ joint brief states.

According to the press release, Fried’s coalition consists of Florida Rep. Dan Daly, a Democrat from Sunrise, two Democrat mayors, 30 cities and three counties. Amicus briefs, it says, will be forthcoming from Giffords, Brady and the League of Women Voters of Florida, which has become an extreme anti-gun group.

Challenging DeSantis

Those unfamiliar with the structure of Florida’s government may question why the state’s Agriculture Commissioner is challenging preemption. There are several reasons. Fried is the only elected Democrat holding statewide office and she is decidedly anti-gun. Her Agriculture Department oversees Florida’s licensing division, which operates the state’s popular Concealed Weapon and Firearm Licensing program.

As the elected official accountable for the CWFL program, Fried’s management has been abysmal and the subject of lawsuits. While she has claimed to be a gun owner and CWFL licensee, Fried also has a Florida medical marijuana card, despite the federal legal issues this creates.

The main reason Fried is fighting the preemption statute is due to her candidacy for governor. Some pundits believe her lawsuit is nothing more than a fundraising and publicity stunt in her race against Republican incumbent Gov. Ron DeSantis.

Fried did not respond to interview requests seeking her comments for this story.

The playbook

In her press release, Fried cites data from a scholarly paper written by two Columbia Law School professors titled: “Punitive Preemption: An Unprecedented Attack on Local Democracy.” One of the authors, Professor Richard Briffault, is described in his law school bio as “a leading thinker on ‘the new preemption,’ a critique of states that are increasingly passing ideological laws that override local ordinances. Working with the Local Solutions Support Center, he educates city and county government officials on how to respond to state preemption.”

In her lawsuit, Fried clearly took a page from Professor Briffault’s anti-preemption playbook, as she incorporated several of his suggestions that show how local officials should fight what Briffault calls “punitive preemption,” namely, challenging the statute’s constitutionality based upon the First Amendment, and by arguing that “coercive financial penalties could be inconsistent with home rule.”

If Fried’s lawsuit is successful, it will serve as a template for anti-gun groups in other states who seek to overturn their preemption statutes.

 

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This story is part of the Second Amendment Foundation’s Investigative Journalism Project and is published here with their permission.

 

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37 COMMENTS

  1. “the judicial power of the state does not extend to impose financial liability on local governments for the performance of discretionary governmental functions.”

    The whole purpose of the law is to make rights violations non-discretionary, you stupid b1+ch!

    • Thank You!
      My asshole govenor the pole smoking bitch decided to screw preemption in my state.
      Polis just made it easier for localities to screw conealed carriers all over the state while doing nothing to stop criminals.

      • Laws like these are a start, but a miniscule one.

        A common criminal who violates your rights by stealing three of your guns would face three counts of theft; if he took three guns each from three people, he’d face nine (likely decades of prison time).

        A public official who violates a right commits thousands of crimes (guns taken, plus people who want them but have been denied the opportunity). That’s not even taking into account the fact that the person violating all those rights is being paid BY THE VICTIMS for the specific purpose of protecting them!

        No fine, and no prison term servable within a human lifetime could possibly address that magnitude of evil. The only just consequence for local violators of Constitutional rights would be something Roman: protracted, public, and excruciating.

  2. I am not sure how you would otherwise enforce preemption if you did not penalize the one responsible for the adverse action. I rule my house, the town rules my neighborhood, the county rules the towns (Sometimes), the state rules all the people of the state and land not appropriated by town or county.

  3. Illinois Democraps:
    We are proud of our FOID card system & arduous concealed carry laws & fees

    Florida Democraps:
    Oh! Hold my beer…

  4. Speaking is one thing, but passing a law in violation of a pre-emption statute, a legislative not an individual act, does not implicate First Amendment issues.

  5. If the officials believe they should not be penalized, then all the court has to agree to is a revision. It needs to add the following: Any laws imposing upon the Rights of citizens that State Law prohibits, are Null and Void. In addition, any penalties or lawsuits that any locale or entity of the state files upon a citizen for violating their invalid laws, is Null and Void.

  6. Nikki “The Gas Pump Lady” Fried is another in the long line of Demorat hyper hypocrites spawned from the loins of Satan. She won elected office (results split 50/50%) by a margin of 6000 votes. She holds a personal CWL & a Florida marijuana card… and no one holds her responsible for this legal oxymoron.
    Florida RINOS have wet dreams about her.

    So big thanks go out to all you New Yorkhole-ites that relocated to Florida, to escape the communistic state of oppression that is NY, and brought your politics with you.

    Disgraced Gov. Como and her should get together and spawn a child that could rule the earth.

    I think I need a Snickers bar…

    • A buddy of mine was at a gun show in Bradington last weekend. He saw a guy wearing a T-shirt that said, “Don’t NY my Florida.”
      On another note. I’ve seen people sneer at Fried because she heads the Dept. of Agriculture and question what that has to do with CCW. The full title is …and Consumer Services. It is one of the most powerful offices in Florida. Are you a contractor, electrician, plumber, physical therapist, barber, etc. Your license comes from Fried’s office. Gas pump lady? Weights and Measures. Everything from the gas pump to your butcher’s scales. Yep, that’s her’s too. The list goes on. Disregard her, and her office, at your peril.

      • Been to “Bradenton” a bunch of times but never heard of BRADINGTON, where is that located? Meanwhile DeSantis does a press conference from “Brandon” Honda in “Brandon” FL.. Keep rubbing it in Gov../

      • Hey, GF –

        Can any of your LE contacts help in getting Fried’s carry permit revoked since she has a mary-jane card?

        That’s an instant ‘prohibited person’ mark that would help in defeating her at the polls…

        • Geoff, that’s a good question. I’ll ask around, but my influence pretty much ends at the county line. Of course, nothing prohibits that information from being shouted from the watchtower.

        • Nikki Fried accomplishes more in an hour then you ever will over the course of your entire worthless existence.

        • Hey, ‘real man’?

          Nikki Fried is more man you’ll ever be, and far more woman than you’ll ever get.

          What a loser you are!!! 😉 😉 😉

      • How did she get the office? It must have been some serious political horse trading going on. Or she outdid Kameltoe in her servicing.

        • How did she get the office?

          She automatically got the Dem vote and the Fried family has a “presence” in South FL through “Daddy’s” law firm… Note that she won by a mere 6000 votes of over 8,600,000 votes cast… DeSantis only won by 5000 votes in the same election against a highly flawed opponent…

    • {Fried}

      “She holds a personal CWL & a Florida marijuana card… and no one holds her responsible for this legal oxymoron.”

      Any way to ‘get the ball rolling’ on that?

      • Any way to ‘get the ball rolling’ on that?

        In FL you can hold both it is not unlawful but the problem arises when she purchases a firearm.. Either she “falsifies” her 4473 or she is denied the purchase because she admits to violating Federal drug laws… The case would be has she PURCHASED a firearm since she started using medical marijuana and how did she answer 21 (c)… The problem arises with the wording, in FL under State law she is NOT an illegal user of marijuana however in the eyes of the ATF she IS… The ATF’s firearms application is pretty straightforward. If you use cannabis in a legal or illegal fashion and answer truthfully on the application, you likely will not be approved to purchase the weapon however with the clear protections now in place for qualified patients within Florida, the likelihood of any state or local interference involving concealed carry permits and medical marijuana patients is slim and the patient’s right to carry arms for self defense will most likely be affirmed within the courts should there ever be a challenge.

  7. Well, the funnest part of this story is that Fried’s signature is on my FL CWL. That’s about it.

    Not gonna lie. I find her candidacy limp. All she talked about this summer was COVID, but now she doesn’t have much else. As mentioned in the article, she doesn’t even do her own job well and isn’t currently the top Dem candidate for Gov.

  8. (1) importing more from Florida than just citrus.: FL primarily EXPORTS citrus from the state although more Orange groves disappear every year and many retailers DO sell citrus products produced in places outside the state…..
    (2) Firearm Licensing program.: There is no Firearm “licensing” program in FL.
    (3) the judicial power of the state does not extend to impose financial liability on local governments for the performance of discretionary governmental functions.: How does “performance of discretionary governmental functions” allow for passing laws and regulations that conflict with State statutes that the litigants themselves do not contest. Don’t fire me, don’t fine me for passing a law that is in violation of the statute? The fines and penalties were put in place as a deterrent since the only other alternative would be endless court battles in an already overloaded system…
    (4) Fried is fighting the preemption statute due to her candidacy for governor.: The places this action will help Fried are in parts of FL (like Broward County) that are already Blue, it’s sure as Hell not going to change anyone’s mind where I live…
    (5) local officials should fight what Briffault calls “punitive preemption,” namely, challenging the statute’s constitutionality based upon the First Amendment.: How does the 1st Amendment apply to a local government writing legislation in violation of a States Constitution or laws, statutes and regulations passed by that States duly elected legislature? If Fried wants to engage Constitutional rights under 1A she must also recognize citizens rights under 2A and question a local governments rights to pass laws in direct conflict with US and State Constitutions…

    • “They don’t contest the statute, just the penalties”
      Then why do we have to pay a fine for speeding?
      Are local governments too stupid to abide by a law and thus avoid any penalty?

  9. Somehow I get the feeling they’d have a completely different opinion if a city or county defied a punative preemptive law that forbids local governments from banning abortion.

    • Or gay “marriage”, or banning trannies from entering the city limits or running for public office… Or maybe a citizen review board to oversee the actions of public school board issues like, say, Minneapolis has that oversees the police. Lots of room for hippocracy here.

  10. the way i see it she should get the fine for meddling with the preemption statute. by removing the teeth from the law a patchwork of restrictions will appear, so fine her.

  11. Guys, Florida has its issues but I just concluded a firearms deal. No government interference. Federal or state. A Winchester 9422M and a Remington 788 in .308. Got them for a song.

  12. Although nowadays there are lots of versatile food delivery services, their assortments can’t always be described as healthy. Unfortunately, the low sodium meal delivery modern food market is overflowing with poor quality and sometimes even dangerous items. No wonder the Moink meal delivery service compares favorably with its rivals. The firm provides its clients with first-rate ethically sourced meat.

  13. South Floridas East Cost is a heavily concentrated nest of communists. Mayors, Sheriffs, City Police, School Boards, and citizens are mostly all Gun hating communists. These cities are all parties in the lawsuit against the preemption laws. If they win the region will collectively ban most all repeating rifles, standard capacity magazines, ban gun shops, certain ammunition types, and make CCW illegal. I live behind the lines in the region and while there are many pro gun citizens, numerous ranges, and lots of gun sellers that matters little as the communists still control the election outcomes. Should the communists win then we become outlaws. A vote against the cities by moving north will will not harm the property tax revenues as the real estate market is booming. Property values have skyrocketed. Which makes moving from Communist South Florida to a shady spot in American North Florida an attractive idea.

  14. A financial penalty for interfering with a citizens exercise of rights is a pretty soft punishment. Let’s offer a deal to change it to prosecution of the legislators for deprivation of rights under color of the law. Section 242 of Title 18 of the US Code. The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

    I think that is a fair compromise. Just make sure that Florida has a similar statute so it can be prosecuted in the state rather than at the federal level. Writing it would be straight forward.

  15. Fried is doing in Florida exactly what Leticia James is attempting in NYS with her NRA lawsuit. Both want to run for governor and both need some form of leverage they feel will help them rise above the other candidate.

    In James’ case, where both viable candidates (her and Hochul) are both very similar in leftist points of view, it might help. (If Hochul would “remember” her previous principles where gun owners are concerned, I believe it would put an end to James ascension.)

    Fried, on the other hand, faces an increasingly popular governor in DeSantis and Floridians should expect many more attempts at craziness as she looks for some sort of leverage. Lawsuits are relatively cheap to file and the news media will scream the filing.

    As for the suit against Florida’s pre-emption law, those kinds of things are expected, just as individuals or entities can bring suit against, say, Roe v Wade. These “questions” will never be answered, once-and-for-all. A shoot-down at the next level in the courts could be quite a set-back for Fried, a court letting it proceed to the next level might tend to bring some additional notoriety.

    The real problem here is that American taxpayers (Floridians, in this case) are forced to defend themselves and their liberties from a government that is using their tax monies against them in an effort to diminish the power of the people and increase that of the governing body. It will always be the case- if one believes in freedom, it is not free, and government will always seek to expand both size and power. So, some of us end up “giving until it hurts”. The alternative is losing everything. It’ be nice to get some real help and it must come from as many freedom-loving Americans as possible- we don’t seem to have foreign donors like Soros, or a cretin like Bloomberg.

    We should accept the filing of the lawsuit, beat it down and then be certain to rub Fried’s, and everyone else’s nose in it for a long time. This is the tactic the Left has been using for years to promulgate their agenda. After weighing the evidence and video proof, does anyone truly believe that Kyle Rittenhouse, or the McCloskeys, should have really been charged, let alone prosecuted, by those whose salaries are paid by the people that should’ve protected them in the first place???

    Get involved, but go somewhere beyond just commenting on the internet to like-minded people…

    • Hey!! No “awaiting moderation” comment on the above… TTAG must think it’s OK on its surface. WHOO-EE! 🙂

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