People exercising their right to keep and bear arms shouldn’t have to worry about whether or not they’re violating an obscure local ordinance when they cross a local boundary. That’s one reason every state has some form of firearms preemption law — some more protective than others.

While Florida’s preemption laws are clear, many local governments chose to ignore them. They’ve kept illegal ordinances on the books even when threatened with prosecution. The legislature has responded by creating penalties for individuals in local governments who violate the preemption law.

From citylab.com:

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 Sunshine State sued the city of Tallahassee to remove restrictions that violate the state preemption law. Mayor Anrew Gillum (above), considered a rising star in the Democrat party who spoke at the Democrat national convention, has openly defied the preemption statute. He’s challenging it in court.

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’s the state legislators’ duty 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.

Elected officials do not have immunity to violate people’s 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 contends that local officials don’t have the authority to vote to violate individual rights. Those who do so can be held to account. And voting to put someone’s rights in danger is little different than arresting someone for exercising their civil rights. It may be a few months before the case is decided.

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

Gun Watch

RELATED ARTICLESMORE FROM AUTHOR

82 COMMENTS

  1. Zip code should not be a factor in people excersizing their constitutional, civil and human rights. And if it takes federal troops to enforce those rights, then that’s what they’re for.

        • Florida’s gov can actually recreate the state guard any time he feels like it. Doubt Skeletor has the balls to do it and pull a Coolidge though.

      • If the .gov will not protect and enforce the constitution and human rights then we have neither. Where does it say that your rights are dependent on zip code? Where does it say that the .gov has no right to enforce your rights?

        Why even have a constitution and claim human rights if every petty tyrant in every town can just do as he pleases?

      • Actually, yes, that us part of what they’re for. In fact, we just had a federal official take an oath to preserve, protect and defend tbe Constitution. You may have heard about it? It was in a couple of the newspapers.

        Anyway, the second amendment is the law of the land and it is incorporated upon the states. Just like Ike sending in troops to enforce degregation in Little Rock, Trump could do the same in Florida to protect firearms freedom.

        Now, I’m not suggesting that would be the best course of action, only that it is an available and lawful course of action. Reall, this mayor’s open defiance of black lettet law is sufficient for me to remove him from office, were I the Governor of Florida. Cities are political subdivisions of the state. They don’t get to just defy state action and waste taxpayer money in court because they didn’t get their way in the election.

      • There are other “troops” at the disposal of the Federal government besides the military. I don’t think it would take much to unseat a traitorous city official.

      • For the record:

        “The Posse Comitatus Act is a United States federal law (18 U.S.C. § 1385, original at 20 Stat. 152) signed on June 18, 1878 by President Rutherford B. Hayes. The purpose of the act – in concert with the Insurrection Act of 1807 – is to limit the powers of the federal government in using federal military personnel to enforce domestic policies within the United States. It was passed as an amendment to an army appropriation bill following the end of Reconstruction, and was subsequently updated in 1956 and 1981.
        The Act only specifically applies to the United States Army and, as amended in 1956, the United States Air Force. While the Act does not explicitly mention the United States Navy and the United States Marine Corps, the Department of the Navy has prescribed regulations that are generally construed to give the Act force with respect to those services as well. THE ACT DOES NOT APPLY TO THE ARMY NATIONAL GUARD AND THE AIR NATIONAL GUARD UNDER STATE AUTHORITY FROM ACTING IN A LAW ENFORCEMENT CAPACITY WITHIN ITS HOME STATE or in an adjacent state if invited by that state’s governor.” [Emphasis mine]

        Source: https://en.wikipedia.org/wiki/Posse_Comitatus_Act

        • Thank you…amazing how so called “conservatives” want to invite the Fedcoats into a local/state controversy at the drop of a hat.

    • And yet the federal government is violating ALL of our rights under the second amendment according to Title 18, U.S.C., Section 242.

      • And yet the people tolerate it. Why? The masses have been “educated” in a state/fed ran institutions that reinforces ignorance and complicity.

  2. A “rising star” in the Democratic Party who refuses to obey a law he doesn’t happen to like? Why, this is absolutely unprecedente ……. Oh, wait a minute. I guess it’s not unprecedented, is it?

  5. There are certain types who are by nature petty tyrants. I think they start on condo and homeowner association boards and work their way up to city council and the mayor”s office. They just get off on being able to tell people what to do. (I say this as a former city councilman and city court judge). With some folks, the title or the robe go to their head.
    As the great Constitutional scholar Bernard P. Fife, said,:’NIP IT! Nip it in the Bud !”

  6. More posturing to keep up his creds. Even when the court rules against him it will be a win. Now if they impose sanctions that could be fun.

  7. Liberal progressives don’t get much. Conservative states need to starting doing the same thing to them. Different town and communities should start passes abortion restrictions. That will get the libs attention then negotiate gun rights for abortion rights.

  8. A Southern, black politician, using local “law” to curtail the civil rights of an out-group, codified in superior law: irony is dead.

    Somebody call Boss Hog. He has a protoge.

  9. This mayor looks like a real piece of work.

    He is so outraged by conservatives ‘meddling’ in local affairs, he’s started an astrotur, er, ‘grassroots’ organization to community organize against them.

    Check out his website:

    http://defendlocal.com/about/

    • It appears he already has Soros cash. His web page appears to formatted the same as moveon.org and Soros’ other pet projects.

      His sons are lock step in his pathway.

  10. “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.”

    In other words:
    “But Florida’s law goes much further: It opens up local government officials to lawsuits, penalties, fees, and even removal from office for willfully violating state laws.” – Yeah, I can see how one of Bloomberg’s Illegal Mayors Against Civil Rights would be personally opposed to the punishment of Illegal Mayors for doing illegal things.

    • I don’t think willful intent has anything to do with the penalty. If lawmakers mistakenly pass legislation in conflict with State and Federal laws, then they didn’t do their homework and people potentially suffer from that negligence.
      Clinton Email Server.
      Guilty.

      • Every city has a liar err lawyer and most states have a racketeer influenced criminal organization of municipalities.

    • Which brings up an interesting legal point:

      If private citizens can be sued and even face criminal charges for violating the civil rights of LGBTQs in providing their business services, how can no case be made against Mr. Soros for his willful and numerous attempts to pay other people to violate or attempt to violate the right of the people to the protections of the Second Amendment?

      It would seem to me that such actions outside of the Constitutional provisions for amendments under Article V would be obvious violations of civil rights, especially where a citizen was sued and/or prosecuted under laws that are blatant violations of the 2A.

      It would almost seems to fall under the RICO statutes.

  11. Now, the Florida constitution is a lengthy thing, and I can’t say I’ve had the time yet to closely read the whole thing, but I can’t find the part where municipal officials are guaranteed legislative immunity. Has anyone else had better luck?

  13. Here is a fun question:

    Title 18 U.S. Code Section 242 defines a prison sentence up to 10 years for threatening with a weapon and up to the death penalty for kidnapping or murder under color of law.

    Why should this not apply to the enforcers (city police) who would enforce Tallahassee’s improper law? When police show up to arrest for this improper law, they are definitely threatening with a weapon and they are definitely kidnapping when they take you away against your will.

    • So the governor should advise all county sheriffs in Florida that any municipal police acting to enforce this law are to be arrested, and recommend that they be held without bail, since as individuals who used force to defy state law are plainly a threat to public safety.

  15. It seems to me that the quoted Federal statue would give the US Attorney General authority to prosecute a State for denying a citizen the right to bear arms. For example, take the State of NJ. Sympathetic plaintiffs would include: Shaneen Allen; Steffon Josey-Davis; Gordon Van Gilder. Likewise, there are several NJ applicants for CWPs who were turned down notwithstanding that they had very persuasive reasons.

    It seems to me that the US DoJ could do an investigation by which it would discover how many politicians and men-of-means have been granted CWPs on barely plausible “good cause” pretexts. These would stand in stark contrast to the denials of the persuasive applications; and, in contrast to the treatment of Allen, Josey-Davis and Van Gilder. (Granted, Van Gilder wasn’t prosecuted due to the good sense of one NJ prosecutor; nevertheless, he was arrested under color-of-law for carrying an 18’th century flintlock pistol in his glove compartment.)

    We will likely get National Reciprocity out of Congress; but, it will be a battle. How will Congress respond to a US DoJ campaign investigating States such as NJ and then prosecuting their officials (e.g., Attorneys General) for denial of civil rights under color of law? Congress-critters should realize that the States will look very foolish in these US DoJ lawsuits. That should inspire them to vote in favor of N-R. They can tell their constituents that they had to pass N-R to protect the States from such lawsuits.

    • In the 1980’s only 8 or 14 (can’t remember) states had “shall carry” laws. Only one state had constitutional carry and around 14 states forbid honest citizens from carry a firearm for protection.

      Now (2012 McDonald vs. Chicago) every state MUST have some form of public carry for their serfs.

      Chicago attempted to adopt NYC/N.J. “may carry” laws but the court nearly charged them with contempt as the court considered those laws “unconstitutional”.

      It’s just a matter of time when a citizen must articulate a “need” in order to exercise a “right”, decided by an unelected government bureaucrat is stricken down as the pestilent infringement it is.

      And they know it.

      “A lie cannot live”-MLK

  16. The first thing that must be understood is that it was not this mayor nor this city council that enacted the law, rather, they are simp0ly refusing to vote to repeal it. From a legal perspective this makes a huge difference.
    1. These persons did not violate the Florida state law by enacting an ordinance in violation of the pre-emption provision, so the pre-emption law is of questionable application here.
    2. legislative immunity on how one votes or does not vote is universal in all states and int he federal system. It may not be found in the Florida Constitution, but rather in a code that defines governmental powers and immunities. So these people cannot be sued for violating anyone’s civil rights by refusing to vote on something. Only a police officer who tried to enforce the law by arresting someone who had fired a shot in self-defense could be sued for a violation of rights. And the likelihood of that happening is remote. If the claim of self-defense or stand your ground was questionable, the County DA would be the one bringing charges, and a separate municipal charge would be unlikely. On the other hand, there would be no prohibition to arresting someone doing target practice in his back yard.
    3. The proper remedy is an action to invalidate the ordinance as violative of the Florida pre-emption law.

    • Not voting to repeal an existing law that is in violation of State law is certainly not an offense, since in theory at least the law is null and void as soon as the State law is enacted that supersedes the local authority.

      To continue to enforce and prosecute citizens under that supposed null and void law, THAT is criminal. and at a minimum the city and its officials should be liable for damages in a civil complaint for the time, money and anguish of those who must defend themselves as a result.

    • Bull shit, if the leadership has been given State notification that their laws conflict, then they must correct-repeal-nullify them. To refuse to in defiance is a whole issue in itself and to act upon the unconstitutional law and attempt to enforce it is yet another and punishable as a crime.

      That’s the point of this article.

  18. “Local governments are creatures of the state.”

    I had to laugh at this line a bit. Did you lift it straight from a Poli Sci textbook?

    That’s word for word what one of the major texts on State & Local government says, although your version is truncated. The line in the book goes on to point out that the State has the power to even dissolve or unincorporate a city or other local government should the state choose to do so.

    • A. Because it is not a criminal offense. B. Because he hasn’t violated the law. The statute prohibits passage of a law, not the refusal to repeal an ordinance passed prior to the enactment of the pre-emption statute.

      • Actually, the statute states that “enacting or causing to be enforced” are both violations. This is why the complaint goes to pains to point out that Tallahassee’s charter does not give it the option of not enforcing a law that is on the books. Tallahassee’s politicians are in violation of the statute and they will lose in court as others in FL have before them.

        • Exactly the judicial precedent has been consistently established. I hope, I mean I really, really hope this Democrap/Socialist Soros supported Jack Wagon-Ass Clown enforces the measure, has an innocent citizen detained, arrested, strip searched-molested and incarcerated.

          He has been warned. Nothing would make my life brighter knowing said ass clown was serving time for his ass baggery. It would send a clear and concise message.

  20. Are you sure that pic is the mayor of Tallahassee?
    Looks like he’s a stand-up comedian, to me!
    Or is the mayor of Tallahassee a stand-up comedian in his spare time?

  22. I hope the people of the gun are ready for a fight. Because the coming battles are going to test you like never before.
    If you want to defeat this anti-freedom black mayor, you need to learn the racist history of Florida gun laws and use it against this black man who thinks only white police and a few black officers should have guns. Yes I said it.
    The black mayor is doing exactly what the KKK did when they confiscated guns from black people on orders from the democrat party in the late 1800s.
    This mayor has the city police on speed dial when he needs them. In 30 seconds or less they are at his home or office.
    The normal people get to wait 15 minutes or longer for help.

    • I suspect the Dem/Prog/Lib strategy on violating 2A rights over the next 4 years will be “death by a thousand cuts”. They will continue to make numerous little local actions such as this one in an attempt to overwhelm the ability of pro-2A advocates to respond or to potentially run out their legal budgets.

      The only comprehensive answer to this assault is a SCOTUS decision that the Second Amendment means exactly what it says and that ANY attempt to subvert the “…shall not be infringed.” clause will be a federal criminal offense.

  25. As a Leon County Resident (thank God I live just outside the jurisdiction of Tallahassee). Anrew Gillum is an asshole of the tenth degree and your typical political scumbag.

    I hope and pray that we get Campus Carry and Open Carry this year. I want to see folks like Anrew Gillum (D), John Thrasher (R), and Scott Maddox (D) have mental shutdowns when the people exercise their constitutional rights.

  27. If states are independent of the federal government then why should they honor a neighboring state’s concealed carry permit?

    • They shouldn’t.
      There shouldn’t be permits either.
      Free U.S. citizens have the right to keep and bear arms. Anywhere in the country. The reciprocity laws we should be working on are those with other countries.

    • They are not completely independent, nor is the federal government completely independent from the states. This is basic “checks and balances”. States have some powers, the federal government has some others. As per the 14th amendment, one of the powers of the federal government is to protect “due process”, which includes protecting constitutional rights. It should be protecting “privileges and immunities”, but that is not the way the Supreme Court has meandered.

  28. Missing, just what is the city ordinance say? Is it like what was tried in Kansas even before the State concealed carry law became effective? The Kansas League of Municipalities advised cities to ban licensed concealed carry on any city property, including streets and sidewalks, parks and golf courses.
    That prompted the State legislature ti immediately slap the cities down and go further, the State passed significant revisions to the State law. HB 2528 clearly stated that only buildings could be posted, streets parking lots and parking garages cannot be posted. Also, no longer did a person have to memorize a list of 22 places where carry was not allowed. Only places that posted the approved no carry sign, in a uniform manner, even places that were on the list could decline to post. This was much appreciated by the churches that had been on the list.
    Florida should use this “revolt of the mayors” to push for revision to State law so that printing is not a crime. Maybe even making open carry legal again.

  29. It’s a state matter. If the state constitution does indeed prevent the state legislature from enacting enforceable preemption laws (i.e. the ones with penalties), then that’s what it does, and they should fix it.

  30. I hope the state uses their power to remove the criminal clown from office.If it were a police officer violating a citizens Constitutional rights they would be fired,prosecuted,and stigmatized.

Comments are closed.