Government and Administrative

It’s No Joke: First DCA Upholds Statutory Fines Against Individual Officials for Violations of Florida Firearms Preemption

It’s No Joke: First DCA Upholds Statutory Fines Against Individual Officials for Violations of Florida Firearms Preemption

The Florida Legislature has clearly staked out its role in legislating firearms regulations.  It remains the sole authority to implement laws regarding firearms regulations, and Florida’s courts have consistently prevented local agencies and courts from infringing on this legislative authority.  In 2016, the Fourth District Court of Appeals held that a local court’s administrative order providing additional restrictions on the return of seized firearms was invalid because it was more severe than that required by the existing statutes.[1]  In a January 2017 article, I warned law enforcement agencies and officials to scrutinize agency policies regarding the seizure and retention of firearms to ensure compliance with the law because of significant fines that could be imposed against individual officials who attempt to add additional restrictions regarding the use or possession of firearms.[2]  On April 9, 2021, the First District Court of Appeal affirmed the validity and enforceability of those hefty fines against government officials who act in their official capacity to restrict gun ownership or possession beyond that which is authorized by Florida Law.[3]

The Florida Legislature has clearly signaled its intention to be the sole arbiter of firearms regulations in the state:

David Marsey Partner | Tallahassee

PREEMPTION – Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto.  Any such existing ordinances, rules, or regulations are hereby declared null and void.[4]

The Legislature’s express intent was to maintain uniform firearms laws throughout Florida; to nullify and void all ordinances and regulations not enacted at the state or federal level; to prohibit the enactment of future local ordinances or regulations relating to firearms, ammunition, or components; and to require local jurisdictions to enforce state law in the field of firearms.  In furtherance of its goals, the Legislature has implemented severe penalties for infringing on its legislative authority:

Any person, county, agency, municipality, district, or other entity that violates the Legislature’s occupation of the whole field of regulation of firearms and ammunition. . . by enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field shall be liable as set forth herein. . .

Penalties include the entry of a permanent injunction against enforcement, a civil fine of up to $5,000 for a knowing and willful violation against the elected or appointed government official or administrative agency head, termination of employment or removal from office by the Governor.  Those found to have knowingly and willfully violated the law are not permitted to use public funds to defend against the allegations.  The aggrieved may file a lawsuit seeking declaratory and injunctive relief, actual damages not to exceed $100,000 and attorney’s fees. 

A consortium of thirty municipalities, counties and elected representatives challenged the Legislature’s authority to preempt the regulation of firearms and to sanction individual entities and people for violation of its regulations.  Their stated goals were to establish their legal ability to require the mandatory reporting of failed background checks, mandating documentation of compliance with mandatory waiting periods and criminal background checks, prohibiting sales of so-called “large-capacity detachable magazines,” and restricting firearm possession at government-owned-or-operated facilities and locations.  Although acknowledging the challenge was an implicit test of the boundaries of the Second Amendment, no constitutional analysis was necessary because local officials and entities lack the authority to regulate firearms, the Legislature’s preemption of the field was within its authority, and the financial sanctions against those who knowingly and willfully circumvent the law by attempting to further regulate firearms, ammunition, or accessories may be held personally liable for payment of fines.

Opponents of preemption challenged it on several grounds, including the separation of powers and legislative immunity.  In rejecting these arguments, the Court sent a strong message that local entities and officials cannot disregard Florida law and enact more restrictive laws regarding the ownership and possession of firearms, ammunition and components.  Furthermore, legislative immunity, which usually protects government officials from individual liability when they act in their official capacities, will not shield them from knowingly and willfully acting contrary to or beyond the limits of state law.  Florida’s preemption statute “eliminates defenses of good faith and advice of counsel for violating the total preemption of the field.” 

The Court’s order is subject to appeal to the Florida Supreme Court.  Unless or until it is reversed, it remains binding law in the First District.  It also remains binding on Florida’s trial courts unless or until it is reversed by the Florida Supreme Court or until another District Court of Appeal issues a contradictory opinion.

Government officials who enact or enforce laws, or those who are responsible for the adoption of rules, policies, or procedures should be particularly cautious when promulgating ordinances, rules, policies or procedures that implicate the ownership, use, or possession of firearms, ammunition, or components.  The pursuit of personal or other agendas more restrictive than Florida law may expose an official or agency head to significant personal liability. 

[1] Dougan v. Bradshaw, 198 So. 3d 878 (Fla. 4th DCA 2016).

[2] Mental Health, Baker Act and Firearms: What’s an Agency to Do? Florida Police Chiefs Association, Green Alert, January 2017.

[3] State of Florida v. City of Weston, Florida, et al, Case No. 1D19-2819, (Fla. First DCA April 9, 2021).

[4] §790.33(1), Florida Statutes