A Florida Supreme Court decision on guns defies reason
Florida legislators have made our state a needlessly dangerous place by encouraging people to buy, carry and use guns more carelessly than even in the Wild West, where the laws in towns like Abilene, Dodge City and Tombstone required visiting cowboys to disarm.
In modern Florida, however, no city can do that, or anything else, to regulate firearms. Any official who might try would face a $5,000 fine and be compelled to pay their own legal costs. But legislators can’t be sued for the road rage and neighborhood-quarrel shootings they fostered because they’re protected by the ancient common-law doctrine of legislative immunity, which is specifically guaranteed to Congress in the Constitution.
It’s the same privilege the Legislature stripped from local governments in a law the Florida Supreme Court upheld by a 5-1 vote Thursday. In so doing, the court showed itself to be as indifferent as the Legislature to irony, hypocrisy and common sense.
The damage goes beyond worsening Florida’s reputation for encouraging gun violence. It sets a precedent for holding city council members and county commissioners personally liable for anything else they might do to send some influential lobby scurrying to the Legislature for relief.
The potential consequences motivated 32 local governments, including Broward County, Miami-Dade, Miami, and the cities of Fort Lauderdale, Weston, Pembroke Pines, Pompano Beach, Boca Raton and Orlando, among many others, to join with former Agriculture Commissioner Nikki Fried in a legal attack on the punitive law. Other parties, including the gun lobby and its opponents, intervened.
The case was inspired by the 2018 massacre at Marjory Stoneman Douglas High School, where 17 students and staff died and 17 more were injured. The Legislature imposed some new restrictions — a rare defeat for the NRA and its gun lobby allies — but the potential of personal liability discouraged local governments from trying to do more.
Circuit Judge Charles Dodson ruled for the local governments. The First District Court of Appeal overruled him, and now so has the Supreme Court.
Justice Jorge Labarga, dissenting as he often does on this court, quoted with approval Dodson’s conclusion: “Because local governments must have what amounts to small legislatures, and because courts cannot interfere in legislative processes, neither this court, nor any other court in Florida, can enforce the civil penalty provisions … against local legislators.”
That’s a particularly dangerous weapon in light of the state Legislature’s unrelenting assault on home rule powers supposedly guaranteed to local governments in the Florida Constitution.
It began in 1987
The 1987 law preempting to the state “the whole field of regulation of firearms and ammunition” is only the most extreme preemption law among many. Another such state law bars any new local ordinances regulating vacation rentals. Sen. Ileana Garcia, R-Miami, is attempting to amend that law to allow localities to require contact information from owners.
The gun preemption law is the only one with financial penalties for local officials who might try to buck it, but a precedent has now been set for other preemption laws, perhaps including Gov. Ron DeSantis’ campaign against face-masking and vaccination requirements.
A prominent lawyer not involved in the case advises us that what worries him the most is a potential threat to school boards that might offend the private and charter schools the Legislature favors. The lawyer said he can imaging a preemption law with penalty provisions against school boards.
Not satisfied with the 1987 law, the gun lobby ordered the Florida Legislature in 2011
to add the financial penalties, and as (almost) always, lawmakers did as they were told.
Fewer will serve
Attorneys for the Florida League of Cities and the Florida Association of Counties told the court that an increasing threat of liability will discourage people from serving in government.
The preemption law has an exception for “zoning ordinances that encompass firearms businesses along with other businesses,” but they must not be designed to regulate guns. That means that a controversial rezoning application by a gun shop had better be approved, or zoning board members could be held personally liable for denying it.
Lawyers for Fried and the local governments argued eloquently on principle. The penalty provisions, they argued, “are an unprecedented attack on fundamental principles of democracy under the guise of preemption.”
They cited a 1988 U.S. Supreme Court decision that said local officials in the Massachusetts
mill town of Fall River couldn’t be sued personally for a budget cut that targeted a particular employee.
“The exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability,” Justice Clarence Thomas wrote. Notably, Justice Ruth Bader Ginsburg and the court’s other liberals agreed in a unanimous decision.
With that in mind, Weston and the others should appeal to the federal courts if they can. State courts no longer care to protect the people from a Legislature that answers to a constituency other than the people of Florida.