As lawyers for Gov. Ron DeSantis and Attorney General Ashley Moody defend a state law dealing with local gun regulations, Agriculture Commissioner Nikki Fried is backing cities and counties that argue the law is unconstitutional.
Fried’s attorneys Tuesday filed a brief arguing that the 1st District Court of Appeal should uphold a circuit judge’s decision that sided with the cities and counties.
The law, passed by the Republican-controlled Legislature in 2011, threatens tough penalties — including fines and potential removal from office — if local elected officials approve gun regulations. Fried’s brief said the law violates constitutional immunities provided to elected officials as they make policy decisions.
“The act of governance requires independent judgment and discretion on the part of those individuals who are the decision-makers. Immunity is a necessary shield for government and its officials when it exercises this discretion to promote the public good,” attorneys for Fried, the only statewide elected Democrat, wrote. “Without immunity from liability, officials would be tempted to vote for what is safest for them personally, rather than what is best for their community.”
Florida since 1987 has barred cities and counties from passing regulations that are stricter than state firearms laws, a concept known as “preemption” of local gun laws. The 2011 law was designed to strengthen the preemption by adding penalties, such as the possibility of local officials facing $5,000 fines and potential removal from office for passing gun regulations.
Dozens of cities, counties and local elected officials challenged the 2011 law last year after the mass shooting at Marjory Stoneman Douglas High School in Parkland. They argued that the potential penalties had made local officials afraid to move forward with gun-related measures that might not be preempted by the 1987 law.
Leon County Circuit Judge Charles Dodson in July found parts of the 2011 law unconstitutional, citing issues related to “legislative immunity,” which protects local government officials in their decision-making processes. He also pointed to the constitutional separation of powers, as judges could be asked to rule on penalizing local officials.
Lawyers for Moody and DeSantis took the case to the Tallahassee-based 1st District Court of Appeal and argued that Dodson’s ruling should be overturned.
“The trial court’s decision is premised on unsupported theories of immunity inconsistent with the constitutional supremacy of the state’s authority over its counties and municipalities,” the lawyers for Moody and DeSantis argued in a brief last month. “If allowed to stand, the decision will not only invite the development of a patchwork regulatory regime in the area of firearms but also render the Legislature impotent to deter power grabs by local officials in other areas.”
The challenge to the law initially named Fried’s predecessor, former Agriculture Commissioner Adam Putnam, as a defendant, along with other state officials. That was because the Department of Agriculture and Consumer Services helps carry out gun laws through its role in issuing concealed-weapons licenses.
After Fried was elected in November 2018 and took office in January, she remained a defendant in the case and argued that “the Department of Agriculture (and the commissioner specifically) is an improper defendant and should therefore be dismissed” from the challenge, according to a document filed in circuit court by the state.
But Fried did not join the other state officials in appealing Dodson’s ruling. Her brief Tuesday argued that the 2011 law violates constitutional separation of powers because it could lead to judges trying to weigh the thinking of local elected officials who pass gun-related measures.
“Just as the judiciary may not intrude into the legislative process by compelling an ‘inquiry’ into the legislative process at the state level, the judiciary similarly lacks the power to do so at the local level,” the brief said. “If the penalty provisions … were upheld, courts across the state would be required to intrude into the legislative process in direct contravention of the state Constitution, as the statutes require the courts to inquire as to the individual legislator’s intent, to determine if there is a ‘knowing and willful violation’ of the (preemption) statute.”
The National Rifle Association, which has filed a brief supporting the 2011 law, contends the penalties are needed because of local officials violating the l987 preemption law. In an email to NRA members Thursday, Marion Hammer, the organization’s longtime Florida lobbyist and former national president, said cities, counties and local officials in the case “think they are above the law.”
“Being elected to office doesn’t mean they have immunity from being held accountable for intentionally breaking the law,” Hammer wrote. “Being elected means they must be held to at least the same standard of conduct as those who trusted them with their vote.”
The challenge to the penalties law involves 30 cities, three counties and more than 70 elected officials, according to a brief filed Monday by the local governments. That includes cities such as Miami Beach, Fort Lauderdale, West Palm Beach, Orlando, St. Petersburg, Gainesville and Tallahassee.
The Monday brief said local governments have considered approving several gun-related measures that they believe are not preempted by the 1987 law. Those measures include such things as requiring the reporting of failed background checks, barring the sale of large-capacity detachable magazines and restricting possession of firearms at certain government-owned or government-operated facilities.
–Jim Saunders, News Service of Florida
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Paula says
Need to vote out all Fl state legislators opposed to local control.
Molan F. Labe says
Hey Fried…….. How about WE the PEOPLE’s Rights ? Don’t try and be another liberal snake trying to sink your fangs into OUR CONSTITUTION. WE the PEOPLE don’t like you !!!!!!
Steve Robinson says
Bravo, Ms. Fried!
Dennis says
Face it, the democrats don’t want citizens to own guns. They will chip away your 2nd amendment right until it is gone. Take a look at what is happening in Virginia. The democrats hate the constitution and are driving God out of America.
Agkistrodon says
Yet people of her very own political persuasion want everyone to believe impeachment is about saving the Constitution. I reckon they do not understand what “shall not be infringed” means. She will be a “one and done” type.
Don says
Civil War is nearing. Division between Conservatives and Liberals is reaching a point of eruption. Mark my words, you try and destroy OUR Constitution, you will pay the ultimate price .
Dave says
If we the people of flagler county wish to ban all concealed carry within our borders, that should be our constitutional right!
Agkistrodon says
Sorry Dave, the US Constitution says different. And very soon so will the majority of the US Judiciary as well, to include the Supreme Court. Elections have consequences, remember that gem?.
NRA says
Within the borders of your own home you can ban anything you want. Of course you can still call someone with a gun to take care of you if need be.
Mike Cocchiola says
Do you even know what the issue is? Nikki Fried is trying to return the authority to local governments to enact gun-related regulations to protect our citizens. And, in fact, “WE the People” elected her and we do like her very much.
Jason says
Actually it’s not, see heller v. DC for the ruling.
The second amendment of the constitution prevents the government from taking away the right of the people to keep and BEAR arms, or so it says.
Molan F. Labe says
The Florida Agriculture Commissioner was a named defendant in the lawsuit filed by 30 Florida cities and counties who argued that local government officials should be allowed to intentionally violate state law with no accountability or punishment.
Agriculture Commissioner Nikki Fried filed a motion with the lower court asking to be dismissed as a defendant in the litigation. The Court DENIED her request — after all, she’s a Cabinet member and she took an oath to support, protect, and defend the Constitution and Government (laws) of the State of Florida.
The case is now before the 1st District Court of Appeals and, rather than uphold her oath, Nikki Fried SWITCHED SIDES and has filed a brief against the state. Commissioner Nikki Fried is arguing that it’s OK for local governments to intentionally break the law and not be punished.
I’m curious how Commissioner Fried can justify this sudden shift and shirking of her duties. She was not a Plaintiff in the trial court. She only became a Defendant in a lawsuit that was filed against her predecessor after she took office. She is also a Cabinet Member who took the oath of office to support, protect, and defend the state. Now, instead of doing her job to defend the state, she is attacking the laws of the government that she swore an oath to support, protect, and defend.
Further, she has used state resources (lawyers and staff paid with public funds) to draft a brief against the state and the laws created by the State Legislature. In other words she is using YOUR TAX DOLLARS against a state law that protects YOU from politically motivated actions against you by local governments.
I’m certain the legislature didn’t intend to fund briefs against state laws.
So, it strikes me that Agriculture Commissioner Nikki Fried’s brief was a political stunt because she SWITCHED SIDES and filed a brief AGAINST the Legislature’s state law that she is supposed to defend.
Moreover, Fried’s attack on the constitutionality of the law when two other cabinet members are defending the constitutionality of the law certainly seems at odds with her duty to uphold the law.
Given Fried’s own questionable conduct, it seems quite clear why she supports allowing public officials to violate the law without fear of being punished for illegal conduct.
Randy Jones says
Mr. Sanders, in his essay, tells us the Agriculture Commissioner is advocating a patchwork of laws across Florida that will effectively make a person unsure as to whether they are in violation of local laws. How ’bout we allow some counties/cities to restrict the privilege of operating a motor vehicle on public right of ways to only those persons who are 19 years old or older? There is no difference in what she is proposing and what I just proposed. We have “preemption” laws for one purpose – to prevent mayhem. A reasonable person might suggest that elected “officials” who choose to defy Florida Statues are violating the law and, at the least, should be removed from office.
Pogo says
@Gun nuts are
gun nuts.
Agkistrodon says
Yes cause it is insane to be for the US Constitution. I hear words hurt to, and sometimes kill, perhaps it is time to repeal the first amendment too eh……you do not get to pick and choose My rights.
Dave says
You can still have guns. Just not carry them around our streets, concealed or otherwise. Also no need for any automatic or semi automatic gun.
Agkistrodon says
That is an interesting statement Dave, especially when the definition of “to bear arms” s literally “to carry a FIREARM”. I didn’t make that the definition Dave, people who specialize in the English language did. In addition, “to bear” carries the connotation of “being responsible for at all times. When my firearm is on my side, I am fully responsible for it and it is SECURED, unlike being left at home. For the record, no gun safe or lock is 100 percent secure.