Florida Supreme Court upholds firearms preemption statute that was challenged by the City of Gainesville

BY JENNIFER CABRERA

TALLAHASSEE, Fla. – Yesterday, the Florida Supreme Court upheld a Florida statute that imposes penalties, including fines and removal from office, on local government officials who pass firearms ordinances that differ from state laws. The statute was challenged by the City of Gainesville and 29 other Florida cities, Leon County, Broward County, Miami-Dade County, former Agriculture Commissioner Nikki Fried, and several individuals.

Florida Statute 790.33

The statute, originally passed in 1987, declared that the state legislature is the only entity in Florida that can regulate firearms and ammunition, “to the exclusion of all existing and future county, city, town, or municipal ordinances” or any local regulations. It declared all existing local firearms ordinances or regulations null and void. The penalties were added in 2011.

However, following the Valentine’s Day shooting at Marjory Stoneman Douglas High School in 2018, cities and counties began defying the statute and passing local ordinances. Alachua County, for example, passed an ordinance in 2018 that increased the waiting period for purchasing firearms to five days (state law provides for a three-day waiting period). At the time, former County Commissioner Robert “Hutch” Hutchinson said, “I would hope the other counties would do the same thing, somebody had to be first.” The ordinance is still on the books, making the County vulnerable to lawsuits under the statute.

Lawsuits filed in 2018

A number of cities and counties filed lawsuits challenging the statute, and those cases were consolidated into the City of Weston v. State of Florida case that was just decided by the Florida Supreme Court.

The issue in the case was whether the doctrines of legislative immunity and governmental function immunity prohibit fines and penalties imposed against local governments and officials, and Justice Ricky Polston’s opinion, signed by five of the other justices, held that neither doctrine prohibited the penalties. Justice Jorge Labarga wrote a dissent to Polston’s opinion, and Justice Renatha Francis, who was appointed in 2022, did not participate. 

City of Gainesville, current Mayor, former Mayor, and two former Commissioners joined the lawsuit

At the April 15, 2021, Gainesville City Commission meeting, former City Attorney Nicolle Shalley asked the commission whether they wanted to continue with the case after an appellate court’s ruling went against them. During the discussion, then-Commissioner and current Mayor Harvey Ward said, “It is not a question of simply preempting. It is a question of going entirely nuclear on any local government who has the temerity to pass anything regarding firearms or ammunition. It is a massive legislative overreach. And has been since it was passed.”

Then-Mayor Lauren Poe added, “It’s not just a fine. You can be removed from office, and even comes with jail time. And more than that, it’s the precedent that if the state legislature can remove officials from office or fine or imprison them for doing their jobs, for doing what the people who elected them want them to do, asked them to do, it is a gross intimidation within the democratic process. So this is about much more than guns.”

The city commission voted unanimously to continue supporting the lawsuit, and Ward, Poe, former Commissioner Adrian Hayes-Santos, and former Commissioner David Arreola said they wanted to continue to be named individually in the lawsuit; Alachua Chronicle has submitted a public records request to determine how much the City spent on the lawsuit.

Order and dissent

Justice Polston’s order quoted a precedent from a previous case that “legislative immunity does not shield individuals who knowingly and willfully act contrary to or beyond the limits of state law.” He also wrote that “Local governments, including counties and municipalities, are creatures of the State without any independent sovereignty” and “It is not a core municipal function to occupy an area that the Legislature has preempted, and local governments have no lawful discretion or authority to enact ordinances that violate state preemption.”

Justice Labarga wrote in his dissent that the statute imposes penalties on local officials for “knowing and willful” violations of the statute, which is “an impermissible judicial intrusion into the official’s legislative thought process, and it undermines the official’s ability to effectuate the constituents’ will.”