FL: Tallahassee Mayor Claims Power to ignore State Law

Mayor Gillum Image from Youtube

In Florida, the State government has chosen to protect residents rights to keep and bear arms by restricting the actions that local governments can take.  This is call preemption, and it means that only the State can pass laws restriction the carry, possession, and use of guns.  It insures that the laws regarding guns and firearms use are uniform across the state. People exercising their right to keep and carry weapons will not have to guess about whether they are violating an obscure local ordinance when they cross some unmarked local boundary. Every state has some form of firearms preemption law on the books. Some are more protective than others.

Many Florida local governments chose to ignore the law. They kept illegal ordinances on the books, and even threatened prosecution of individuals, although the ordinances themselves were illegitimate.

The Florida legislature responded by providing penalties for individuals in local governments who chose to ignore and violate the preemption law. From citylab.com:

The mayor refers to the law as “super-preemption.” Like state preemption laws across the country, including North Carolina’s notorious H.B. 2, Florida’s firearms statute forbids city or county governments from passing certain local policies—in this case, laws regulating the sale or use of firearms. But Florida’s law goes much further: It opens up local government officials to lawsuits, penalties, fees, and even removal from office for even attempting to pass a bill contravening state law.

Recently, the city of Tallahassee was sued to remove laws that violate the preemption ordinance from their books.  It is a remedy the preemption law provides to bring cities that openly defy the law into compliance.  Mayor Gillum has chosen to openly defy the preemption statute and challenge it in court. Mayor Gillum is a rising star in the Democrat party.  He spoke at the Democrat national convention.

From wfsu.org:

The first district court of appeals must consider whether the city went afoul of the law when it left a pair of provisions regulating gun use on the books. Eric Friday, general counsel for the gun rights organization Florida Carry says the law is clear.

“These officials took swore an oath and took a job to follow the laws of Florida and the’ve chosen not to do so. They have chosen, or they have stated here, that they want to continue to regulate fire arms whether the legislature tells them they can or cannot,” Friday says.

But city attorneys argue the state’s preemption law violates city commissioners’ rights under the state constitution. Lauren Lennon says that’s because it violates the commissioners’ legislative immunity by carrying penalties and fines, even allowing them to be personally sued based on how they vote.

It is the duty of state legislators to keep local officials in check. Local governments are creatures of the State. States are independent of the Federal government because of the structure of the Constitution, where the checks and balances in the power structure are defined. States have some powers, but not unlimited. The federal government has some powers, but not unlimited. Individuals have rights, but not unlimited. Local governments are creatures of the State.

Elected officials do not have immunity to violate peoples rights. That principle has been well established in federal law, in Title 18, U.S.C., Section 242. From justice.gov:

TITLE 18, U.S.C., SECTION 242

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

In the Florida pre-emption case, the State of Florida is saying that local officials do not have the authority to vote to violate individual rights, and that they can be held to account if they do so.  Voting to put someone's rights in danger is a little different than arresting someone for exercising their rights. It is the predicate act to doing so.

It may be a few months before the case is decided in the courts.

©2016 by Dean Weingarten: Permission to share is granted when this notice is included.

Link to Gun Watch