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Sunday, June 16, 2024 | Back issues
Courthouse News Service Courthouse News Service

Florida Bans Gun Controls; County Sues Governor

WEST PALM BEACH (CN) - The Palm Beach County Commission sued Gov. Rick Scott and the Legislature, fighting a new law that allows the governor to remove from office any local officials who enact gun control ordinances.

The Gun Law, House Bill 45, passed through the Legislature this year, was signed by the governor on June 2 and took effect Oct. 1. It allows the governor to yank from office any officials who pass gun control laws; allows a court to fine the officials $5,000 for it; and gives a private cause of action to any "persons or organization whose membership is adversely affected" by such a law, who may sue the officials for damages of up to $100,000 and costs, with a "contingency multiplier."

The plaintiffs - five members of the seven-member Palm Beach County Commission, and the Commission itself - say the law violates the separation of powers doctrine and will irreparably harm them "because plaintiffs' exercise of their legislative duties will be chilled by the threat of improper removal from office."

Under the Florida Constitution, counties have the right to require a criminal records check for anyone who wants to buy a gun within their borders, and to impose a 3- to 5-day waiting period - excluding weekends and legal holidays - for guns sales.

The complaint states: "Apparently unhappy with local governments' attempts to limit gun usage within their jurisdiction notwithstanding the preemption language in the Joe Carlucci Uniform Firearms Act, the Florida Legislature in the new Gun Law articulated an intent to, 'deter and prevent the violation of this section and the violation of rights protected under the constitution and laws of this state related to firearms, ammunition, or components thereof, by the abuse of official authority that occurs when enactments are passed in violation of state law or under color of local and state authority.' ...

"(T)he Gun Law enacted several potential sanctions against local government, their elected officials, and their employees. First, the Gun Law states that, 'If any county, city, town, or other local government violates this section, the court shall declare the improper ordinance, regulation, or rule invalid and issue a permanent injunction against the local government prohibiting it from enforcing such ordinance, regulation, or rule.'

"The statute clarifies that, '[i]t is no defense that in enacting the ordinance, regulation, or rule the local government was acting in good faith or upon the advice of counsel.'

"Second, the Gun Law provides for a civil penalty against legislators who run afoul of the preemption in this arena, stating in pertinent part, 'If the court determines that a violation was knowing and willful, the court shall assess a civil fine of up to $5,000 against the elected or appointed local government official or officials or administrative agency head under whose jurisdiction the violation occurred.'

"Third, the Gun Law strips local government officials and their employees of the general right to have their defense paid for by the local government for which they working [sic], stating specifically, 'Except as required by applicable law, public funds may not be used to defend or reimburse the unlawful conduct of any person found to have knowingly and willfully violated this section.'

"Fourth, the Gun Law authorizes the sanction of termination or removal from office for those found in violation of the preemption provisions, stating, 'A knowing and willful violation of any provision of this section by a person acting in an official capacity for any entity enacting or causing to be enforced a local ordinance or administrative rule or regulation prohibited under paragraph (a) or otherwise under color of law shall be cause for termination of employment or contract or removal from office by the governor.'

"Finally, the Gun Law authorizes suit against local government that attempt to legislate in the preempted arena by persons or organization whose membership is adversely affected by the preempted regulation, including the recovery of attorney's fees and costs, with a contingency multiplier, and the assessment of actual damages of up to $100,000.'" (Citations omitted.)

Previously, removal of a local official required that a special session of the state Senate be called and that removal be for one of six narrowly defined acts: malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony.

The Palm Beach County Commission says the Florida Senate "has no power to either expand the categories for which the governor may suspend an official or to mandate a finding that a certain act fits within one of the discretionary categories of suspension and warrants suspension and recommendation for removal." "Additionally, because the Gun Law states that a violation of the state's preemption of gun legislation 'shall be cause for removal by the Governor.' The Gun Law either attempts to create a new category of actions for which the Governor may suspend local officials or it attempts to mandate the exercise of the Governor's discretionary suspension power in cases where a knowing and willful preemption has occurred. Either case violates the Florida Constitution, represents an unlawful delegation of authority, and violates the doctrine of separation of powers."

The commissioners seek declaratory judgment that sanctions in the Gun Law violate their right to legislative immunity in the enactment of local legislation, and that the removal provision is unconstitutional and invalid.

They are represented by Amy Taylor Petrick, of the Palm Beach County Attorney's office.

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