Kriston Capps is a staff writer for CityLab covering housing, architecture, and politics. He previously worked as a senior editor for Architect magazine.
Tallahassee Mayor Andrew Gillum is taking on the state government over a “super preemption law” he calls a threat to democracy.
In 2014, two gun-rights organizations, Florida Carry and the Second Amendment Foundation, sued the city of Tallahassee and various of its officials over a pair of laws, passed in 1957 and 1988, that prohibit residents from discharging firearms in public parks. Those local regulations retroactively violated a Florida state law, passed in 2011, preempting local governments from passing any ordinances that regulate guns.
On Tuesday, Tallahassee Mayor Andrew Gillum will appear before Florida’s First District Court of Appeal for oral arguments in that continuing case. Except Gillum will not have the benefit of Tallahassee’s legal team behind him: The same Florida state preemption law prohibits the use of public funds in defending local government officials in any dispute over gun ordinances. So, in this case, the mayor had to procure pro-bono representation.
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.
"It’s intended to send a strong chilling effect to local government: ‘Don’t you even dare,’” Gillum says. When the case was first brought forward, Gillum—then a Tallahassee City Commissioner—and other local officials personally faced civil penalties of up to $5,000, damages of up to $100,000, attorneys’ fees, and even removal from office at the discretion of the governor.
In the case before Florida’s Second Judicial Circuit Court, the defendants acknowledged that the state legislature had the authority to render local ordinances “null and void.” With the state statute on the books, Tallahassee argued, the city had no reason or obligation to take special action to remove its ordinances banning gunfire in public parks. Those laws were effectively nullified. The court concurred, but declined to take up a larger constitutional question over the “super-premption” statute.
When Florida Carry appealed, Tallahassee did, too. And just this week, Mayor Gillum launched the Campaign to Defend Local Solutions, a nonpartisan coalition of mayors, commissioners, and council members working to protect local government interests against state legislature interference. A number of local, state, and national organizations have already joined the coalition, from the League of Women Voters of Tallahasee to the Campaign to Keep Guns Off Campus. State and local officials from St. Louis, Dallas, Detroit, and South Dakota have signed up as well.
Gillum says that Florida’s firearms statute represents a challenge to the Constitution—and to democracy itself. It exposes elected officials to liability for actions undertaken in their capacity as elected officials. “It goes far beyond simply saying [local officials] can’t regulate the sale and use of guns at the local level,” he says. “It says not only can’t you do that, but if you do do that, there are going to be severe penalties levied against you as an individual.”
The Florida League of Cities, state legislators from Florida and Michigan, half a dozen mayors of Florida cities, and other parties have filed amicus curiae briefs supporting Tallahassee. Gillum, who is widely considered a contender for the governor’s office, is framing the appeal as a much larger issue than a textual question over Tallahassee’s legal code. In a Medium post announcing the Campaign to Defend Local Solutions—“How To Fight the NRA”—he positions the city’s appeal as a battle with the gun lobby.
Tallahassee is not alone in fighting state preemption. Cities such as Cleveland and Birmingham have brought lawsuits forward against their states over laws preempting local-hire and minimum-wage ordinances. Those cases could bolster court precedent for home rule and self-government.
Ben Beach, legal director for the Partnership for Working Families and an expert on preemption laws, says that there are two components to Tallahassee’s argument that the Florida statute is unconstitutional. One is the well-established legal principle that legislators are immune from personal civil liability for legislative activities. The other is a basic First Amendment protection for legislators’ free speech rights to vote a particular way on an issue.
“To me, those are two fairly fundamental and understandable constitutional principles that should operate through the courts in this case to stop this extreme effort to suppress local democracy,” Beach says.
No other state preemption law in the country goes as far as Florida’s, Beach adds. Arizona’s S.B. 1487 targets local governments by withholding matching funds from those that pass ordinances or regulations that contradict state law. But the Florida firearms statute alone holds individual lawmakers personally responsible for their votes on local regulations.
For his part, Gillum says that Tallahassee’s appeal isn’t about banning people from firing guns in city parks, a measure he describes as a “common sense law.” Instead, the city is fighting for process and the right to self-rule in cities across Florida. “At the time when [the state statute] was adopted, you had communities that were stopped in their tracks,” Gillum says. “We’ve got over 400 cities in the state of Florida and 67 counties. Who knows how many cities or counties it may have stopped from legislating in the ways that they thought were in the best interests of their communities?”
This post has been updated to add context for Florida’s weapons statute.