Sarah Holder is a staff writer at CityLab covering local policy, affordable housing, labor, and technology.
After the Parkland shooting, cities wanted to control gun use in their communities, only to be stalled by harsh preemption laws. Now, they're suing the state.
After the February 14 shooting in Parkland, Florida, which took 17 lives and spurred nationwide protests, the mayor of Coral Gables, Florida, was prepared to act. Raul Valdés-Fauli asked the city’s attorney general to draft a complete ban on assault weapons “capable of fully automatic, semiautomatic or burst fire,” including the AR-15 used by the Parkland killer, within city limits.
But the attorney advised Valdés-Fauli against proposing such an ordinance. The state’s retaliation would be too fierce, he was told.
Valdés-Fauli, along with other mayors across the state, are subject to a state law enacted in 2011 that threatens harsh penalties for municipalities who attempt to pass any of their own laws regarding gun control within their jurisdictions. If a city so much as calls a meeting to discuss the possibility, the officials who promulgate (or pass) such a law are each liable for a personal fee of $5,000, and could be removed from office by the governor. Their cities are also on the hook for potential legal fees incurred if Florida citizens or attorneys file lawsuits against them.
Now, ten South Florida cities are suing the state to break free of this constraint: Cutler Bay, Lauderhill, Miami Beach, Miami Gardens, Miramar, Pinecrest, Pompano Beach, Coral Gables, and South Miami.
“The point of this litigation against the governor and the attorney general and the cabinet is to say it wasn’t constitutional for them to enforce those penalties,” said Valdés-Fauli.
“We can’t even propose or even enact public safety measures in our respective communities,” said Miramar Mayor Wayne Messam, whose city is a 30-minute drive from Parkland. “We think it’s punitive, we think it’s an overreach, and there needs to be a change—there’s no other reason why this penalty provision exists but to intimidate and chill lawmakers from enacting any type of regulation.”
The mayors aren’t trying to challenge the state’s powers to preempt gun regulations, passed in 1987, which stop any locality from passing a restrictive gun law or ordinance that in any way supersedes state authority. They’re objecting instead to the steep barriers to considering any regulations—even constitutionally sound ones that might not impede on anyone’s second amendment rights nor on state authority. While state preemption could stop cities from banning the sales of guns in local Walmarts, for example, Messam says it shouldn’t stop them from banning gun use within City Hall and public ampitheatres—or at least talking about it.
“Our question is, why is it that when it comes to gun control that there are personal penalties?” Messam said. The only other instance in which a Governor can remove a city official from their position is if they commit a felony. Why, Messam asks, is bringing up gun legislation punished the same way?
And it’s the severity of the penalties that has stalled some city action thus far. “I couldn’t care less about being removed from office because of this; I’d welcome it as a matter of fact,” said Valdés-Fauli. “And the $5,000 fine? Fine.” But he doesn’t want his city to be liable for hundreds of thousands of dollars in potential legal fees. That’s why Coral Gables stepped back from its assault weapons ban, and why it joined the suit this week.
“This is another reason why it’s so important to us to at least remove that element of the law,” said Messam of the penalties. “So local elected officials can discuss what can work in their communities.”
The mayors’ challenge comes in the face of federal and state inaction: To the dismay of teen activists, and despite testimony from Parkland survivors who urged stricter regulations, the state of Florida voted not to instate new bans on assault rifles on March 3.
Key to their legal argument are the “home rule” powers of Florida cities, which give localities a certain amount of extra control over what happens within their home jurisdiction. Home rule laws vary by state, but Florida’s, enacted in 1968, give municipalities “governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services,” as long as they are legally sound.
In the past two years, however, the Florida legislature has passed several laws weakening these home rule powers: “Florida has passed laws that punish local governments that adopt gun restrictions; limit the ability of municipalities to regulate vacation rentals, businesses, and building and land use; and prohibit local bans on plastic bags, among other issues,” stated an editorial in the Sun Sentinel.
“These laws aren’t business as usual. They’re extreme. They’re unprecedented,” wrote a group of Florida lawmakers in the Tallahassee Democrat. “They’re designed to intimidate, bully and silence local communities.” Messam sees the gun statute as another direct attack on these home rule rights—and the lawsuit as a direct constitutional challenge.
“Home rule is under complete and total assault by the hard right in charge of the Florida legislature,” said Tallahassee Mayor Andrew Gillum. “They, in my opinion, are doing everything they can to concentrate the power of this state.”
The city of Tallahassee has been challenged by that centralized force before. In 1957 and 1958, Tallahassee city officials passed an ordinance banning the shooting of guns in public parks. Decades later, in 2014, they were sued by gun rights organizations Florida Carry and the Second Amendment Foundation, who argued that the state retroactively violated the state’s 2011 statute and should be on the hook for penalties now. The lawsuit was eventually rejected in 2017, but only because the ordinance was confirmed to be invalid: “The appellate court confirmed that it couldn’t compel the city’s government to repeal local ordinances that the city wasn’t enforcing anyway,” wrote CityLab’s Kriston Capps last February. The win was bittersweet, however: Then-commissioner Gillum also asked the court to rule Florida’s 2011 statute unconstitutional, but it declined.
Tallahassee has not yet signed on to the lawsuit, but Gillum expects the majority of the Tallahassee city commission to rule in favor of joining at their next meeting on April 11. He has a long list of regulations he’d raise if given the chance: banning high capacity magazine sales; closing gun shows; strengthening local background checks and stopping guns from falling into the hands of domestic violence abusers.
And in the coming weeks, more jurisdictions might follow. Broward County’s board of commissioners will decide on April 10 whether to ask their attorney to sign on to the suit. (The mayor says they want to create zoning ordinances to keep guns out of some public spaces.) Messam would ban guns within the city’s new 5,000-seat amphitheater, and governmental facilities including parks; Valdés-Fauli would pursue the assault weapon ban once more; the mayor of Pompano Beach told the Sun-Sentinal they’d regulate gun shows at public facilities.
“We’re challenging all mayors and elected officials to join on to this lawsuit,” said Messam. “Because whether your city decides to explore constitutional, allowed regulation in your respective city, what we’re fighting for is your right to be able to even have a discussion if you choose to do so.”