People exercising their right to keep and bear arms shouldn’t have to worry about whether or not they’re violating an obscure local ordinance when they cross a local boundary. That’s one reason every state has some form of firearms preemption law — some more protective than others.
While Florida’s preemption laws are clear, many local governments chose to ignore them. They’ve kept illegal ordinances on the books even when threatened with prosecution. The legislature has responded by creating penalties for individuals in local governments who violate the preemption law.
Like state preemption laws across the country, including North Carolina’s notorious H.B. 2, Florida’s firearms statute forbids city or county governments from passing certain local policies—in this case, laws regulating the sale or use of firearms. But Florida’s law goes much further: It opens up local government officials to lawsuits, penalties, fees, and even removal from office for even attempting to pass a bill contravening state law.
Recently, the Sunshine State sued the city of Tallahassee to remove restrictions that violate the state preemption law. Mayor Anrew Gillum (above), considered a rising star in the Democrat party who spoke at the Democrat national convention, has openly defied the preemption statute. He’s challenging it in court.
The first district court of appeals must consider whether the city went afoul of the law when it left a pair of provisions regulating gun use on the books. Eric Friday, general counsel for the gun rights organization Florida Carry says the law is clear.
“These officials took swore an oath and took a job to follow the laws of Florida and the’ve chosen not to do so. They have chosen, or they have stated here, that they want to continue to regulate fire arms whether the legislature tells them they can or cannot,” Friday says.
But city attorneys argue the state’s preemption law violates city commissioners’ rights under the state constitution. Lauren Lennon says that’s because it violates the commissioners’ legislative immunity by carrying penalties and fines, even allowing them to be personally sued based on how they vote.
It’s the state legislators’ duty to keep local officials in check. Local governments are creatures of the state. States are independent of the federal government because of the structure of the Constitution, where the checks and balances in the power structure are defined.
Elected officials do not have immunity to violate people’s rights. That principle has been well established in federal law, in Title 18, U.S.C., Section 242. From justice.gov:
TITLE 18, U.S.C., SECTION 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
In the Florida pre-emption case, the state contends that local officials don’t have the authority to vote to violate individual rights. Those who do so can be held to account. And voting to put someone’s rights in danger is little different than arresting someone for exercising their civil rights. It may be a few months before the case is decided.
©2016 by Dean Weingarten: Permission to share is granted when this notice is included.