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Judge Clears Way For Local Governments to Challenge State Ban on Stricter Gun Restrictions

| October 23, 2018

gun law challenge

Can they do that? (© FlaglerLive)

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.

–Jim Saunders, News Service of Florida

13 Responses for “Judge Clears Way For Local Governments to Challenge State Ban on Stricter Gun Restrictions”

  1. Michael Cocchiola says:

    Local authorities must have legal discretion to enact sensible local restrictions, within the framework of state law, on the carrying and use of guns. Each community may have different situations and local regulations and ordinances must be allowed to reflect these differences,

  2. Agkistrodon says:

    The problem with LOCAL admin making laws/restrictions on firearms is it makes it hard for LAW ABIDING people who exercise their right to carry have to navigate around the state. That may inherently be WHY these localities want to, set their own rules. Perhaps we should have different drivers licenses by county, with completely different rules for any given county. And some counties could REFUSE to honor licenses from “other” counties……………….

  3. Dave says:

    If for some odd reason you feel the need to carry a concealed weapon, then you should only be carrying that weapon concealed in your own county that approves it. It Is your responsibility as a concealed carrier to know the laws where you are traveling. Most counties will be making concealed carry illegal soon.

  4. Concerned Citizen says:

    While I support the 2nd Amendment to a certain extent and have a concealed permit I also respect the right of a business to not allow fire arms. Your concealed permit doesn’t give you the right to carry as you please. There are limitations and as an owner of a CCP you are required to abide by those.

    I wouldn’t carry into a financial institution for obvious reasons and if I wanted a steak and they said no guns then I can go without for the hour or so it takes to eat.

    The second amendment has become more of a political platform anyways. It was written during the time that most house holds had muskets and you were required to serve time in the state militia.

    It was written during the forming of a new government to keep the government in check. It’s highly doubtful that the average citizen is going to rush out into the street and quell an “invasion” with that trusty M4 and all those glamorous accessories.

    When it comes to the 2nd amendment and the right to carry I’m more concerned with all those “law abiding” owners who buy a ton of weapons but you never see them go to the range or train with what they have.

  5. Agkistrodon says:

    CCP are issued BY THE STATE, NOT counties or business’. Business do NOT make laws.

  6. Agkistrodon says:

    #Dave, NO county issues Concealed Carry Permits. The Florida Dept Of Agriculture Does, and that is the STATE. You should know what you are talking about before you desire to set rules.

  7. Dave says:

    Yes the state issues the license for concealed carry, but what we are talking about is jurisdictions creating their own laws to follow in regards to said concealed carry. And even further pertaining to specific buisness rules within that county. So will it be that difficult to follow the rules depending on where you are traveling within the state?

  8. Trailer Bob says:

    First I would like to say, IF northerners wish to move to the south, then make sure you can live with the ways of your new state. There are fifty states and you can choose which ever one fits your beliefs the best. But, don’t move here and start telling us we should change to suit your former upbringing. I take offense at the though that I, as a CCP holder, should be judged by some business owners beliefs on guns. Now some facts…FBI statistics show that in 2016, there were 374 murders committed by guns, 1,604 by using knives or cutting instruments, 472 committed by use of blunt objects, and 659 caused by fists, hands, or feet. So shouldn’t we be going after the tools that have killed the most people via murder? Look at the facts, the numbers from the FBI, and tell me you are not using hysterics instead of logic. Have a nice day, and don’t get mugged.

  9. Agkistrodon says:

    That is a matter for the STATE and Federal. When you allow locals to add to it “clouds” the water. Clarity is the name of the game. I know up North, they allow Counties to do this. That ends with a “good ole boy” system, where one person gets to decide who and who does NOT get to exercise their rights. Then after four years, someone else gets elected and they decide. NO thank you. The STATE does a fine job. Just because YOU don’t exercise your right, that is YOUR choice. YOU don’t choose for others. That is the State’s job.

  10. Agkistrodon says:

    @Dave After all would YOU want the Flagler town manager being in charge of issuing permits for firearms? I rest my case.

  11. Dave says:

    Agkistrodon ,no absolutely not, not sure why u would even ask that, the state gives permits for guns as they should, but I am ok with a county vote on restrictions for the guns that the state issues licenses for.

  12. Randy Jones says:

    What if Flagler County preempted state law regarding the issuance to driver licenses? Would it be OK to enact local laws that stipulate only those persons between the age of 21 and 75 are allowed to operate a motor vehicle? What if Flagler County preempted state law regarding the legal age for possession and purchase of alcoholic beverages? Would it be OK s to enact local laws that would allow 14 year olds to buy Vodka? What if Flagler County decided to legalize possession of heroin, methamphetamine and crack? Be very careful in deciding which “legal precedents” you support.

  13. Dave says:

    Randy a few of your examples are complete silliness which show despreatness in your arguement, these things first must be voted on locally to be enacted, and then if the people vote to have things changed then so be it, its what the majority wanted

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