Court upholds state law that threatens tough penalties for local gun regulations

In a win for Republican lawmakers and the National Rifle Association, an appeals court Friday upheld a 2011 state law that threatens tough penalties if city and county officials approve gun-related regulations.

A three-judge panel of the 1st District Court of Appeal rejected a challenge to the NRA-backed law by 30 cities, three counties and more than 70 local officials. A Leon County circuit judge in 2019 found that parts of the law were unconstitutional, spurring Attorney General Ashley Moody and Gov. Ron DeSantis to appeal.

Florida since 1987 has barred cities and counties from passing regulations that are stricter than state firearms laws, and the penalties in the 2011 law were designed to strengthen that "preemption." The law, for example, could lead to local officials facing $5,000 fines and potential removal from office for passing gun regulations.

Local governments and officials filed three lawsuits challenging the 2011 law after the February 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland that killed 17 people. The lawsuits were ultimately consolidated in Leon County circuit court.

The local governments and officials did not challenge the underlying 1987 preemption law but contended the penalties in the 2011 law were unconstitutional. Friday’s ruling focused on arguments that the 2011 law should be rejected because of two legal concepts known as "government function immunity" and "legislative immunity."

Judge Susan Kelsey, writing for the appellate panel, rejected the arguments and pointed to the state’s "superior authority in this context."

"Taken together, Florida’s Constitution and statutes limit counties’ and municipalities’ powers of self-government by requiring consistency with legislatively-enacted general and special laws," Kelsey wrote in a 14-page opinion joined by Chief Judge Stephanie Ray and Judge Brad Thomas. "As the trial court correctly noted and appellees (the local governments and officials) do not dispute, the Florida Legislature likewise is authorized to enact general laws preempting all regulation in an area of the law. As this case illustrates, the Legislature has exercised its preemption authority with respect to firearms and ammunition."

At least part of the issue involving government function immunity involved whether local governments were protected by the constitutional separation of powers. But Kelsey wrote that then-Circuit Judge Charles Dodson "erred in elevating the separation of powers doctrine over the state’s superior legislative authority validly exercised in this case."

"Appellees argue that entities adopting firearm or ammunition regulations stricter than the Legislature’s are properly exercising their rights to discretion in governance, and that immunity derived from the separation of powers doctrine shields the exercise of that discretion," Kelsey wrote. "The trial court accepted this reasoning, but we reject it."

The legislative immunity issue included whether local officials could face penalties such as fines for decision-making that occurs in their official capacity.

"The Florida Legislature has the authority to abrogate legislative immunity," Kelsey wrote. "It has done so here, because state preemption in this field necessarily and directly deprives local governments and agencies, and their officials, of any authority or discretion to contravene, exceed, or evade the Florida Legislature’s regulation of the entire field of firearms and ammunition. In this field, the Legislature has withdrawn all legislative authority from local governments and agencies to make policy decisions. No immunity can exist for local or agency enactment of provisions in violation of state preemption and thus beyond the scope of state-delegated authority."

Attorneys for the local governments wrote in a 2019 court document that city and county officials had been urged to take actions after the Marjory Stoneman Douglas shooting. Those requests involved such things as requiring procedures or documentation to ensure compliance with background checks and waiting periods for gun purchases and requiring reporting of failed background checks.

But the attorneys said local governments refrained from going ahead with the proposals because of the potential penalties in state law. Along with officials facing the possibility of fines and removal from office, the law would allow members of the public and organizations to receive damages up to $100,000 and attorney fees if they successfully sue local governments for improper gun regulations.

During the case, local governments said the 2011 law had a "chilling effect" on their ability to enact ordinances aimed at reducing gun violence. But in a friend-of-the-court brief, NRA attorneys wrote that local governments and officials "are not above the law and should be held accountable when they violate the law."