Wednesday, October 24, 2018

Judge clears way for challenges to Florida's preemptive gun law

Posted By on Wed, Oct 24, 2018 at 11:11 AM

click to enlarge PHOTO VIA MICHAEL SAECHANG/FLICKR
  • Photo via Michael Saechang/Flickr
A circuit judge has given a boost to more than 30 local governments challenging a 2011 state law that threatens stiff penalties for city or county officials who approve gun restrictions.

Leon County Circuit Judge Charles Dodson last week refused a request by Attorney General Pam Bondi’s office to dismiss three consolidated lawsuits that contend the 2011 law, which threatens penalties such as removal from office, is unconstitutional. Local governments challenged the law after the February mass shooting at Marjory Stoneman Douglas High School in Broward County, as at least some cities and counties looked at approving gun-related measures.

The Legislature passed the tough penalties in 2011 as a way of enforcing a decades-old law that gives control of gun regulation to the state rather than local governments —- a concept known as state “preemption.” The 2011 law, in part, threatens removal from office and fines for city and county officials who pass restrictions that violate the older preemption law.

But in court documents, attorneys for the cities and counties argued that the penalties are unconstitutional on a series of grounds and have had a “chilling effect” on local officials considering gun restrictions.



“Plaintiffs have asserted a number of proposed regulatory and legislative actions that they wish to take,” said an August court document filed by attorneys for the local governments. “Regardless of how confident city or county officials are that they have the authority to take the proposed actions and that these actions would not violate the preemption law, they nevertheless have been prevented from pursuing them any further due to their fear that defendants or private parties may interpret their actions as violating the preemption law.”

Bondi’s office in July filed a motion on behalf of the state and several state officials to dismiss the consolidated cases, in part arguing that there was no “justiciable case or controversy” because the penalties have not been enforced.

“Plaintiffs do not allege that any of the defendants named in these actions (or any other state official) has ‘actually threatened’ them (or anyone else) with enforcement of the challenged provisions,” the motion said. “Instead, plaintiffs allege only that because they wish to enact and enforce ordinances that may be preempted … they are convinced that they may, at some indeterminate point in the future, be threatened with enforcement by some entity or individual they do not identify. Accordingly, these actions should be dismissed for lack of a justiciable case or controversy.”

But in a seven-page order issued last week, Dodson rejected the motion to dismiss the allegations against the state, Bondi, Florida Department of Law Enforcement Commissioner Rick Swearingen and Agriculture Commissioner Adam Putnam.

Dodson granted dismissal against three other defendants —- the state auditor general, the Broward County state attorney and the Broward County sheriff. Dodson noted that Gov. Rick Scott has also been named as a defendant but was not part of the motion to dismiss by Bondi’s office. Bondi’s motion said Scott had other legal counsel.

“The attorney general, the FDLE commissioner and the agriculture commissioner are the state officials who administer and enforce the state’s regulatory scheme for firearms, which is protected by the preemption and penalty provisions,” Dodson wrote. “The relief sought in these cases … would have direct consequences on these defendants’ duties.”

The local governments involved in the challenges are primarily in South Florida but also include cities such as Tallahassee, Gainesville, Orlando and St. Petersburg. The National Rifle Association filed a friend-of-the-court brief in July supporting the motion to dismiss the cases.

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