The Florida Supreme Court sought answers Thursday on whether the state has the authority to punish local lawmakers for passing ordinances that violate the state’s gun law preemption.
Justices heard oral arguments in a case, led by Commissioner Nikki Fried’s Department of Agriculture and Consumer Services against the state, that challenges a 2011 state law that provides financial penalties to local officials for enacting or enforcing local gun laws that are more restrictive than the state’s.
The oral arguments played out before the backdrop of the most recent string of horrific massacres, including in Uvalde, Texas, last month. The shootings have ushered in a new wave of national calls to address gun violence from Republicans and Democrats alike.
The state initially preempted local gun laws in 1987. The lawsuit would not stop that law. But Fried, cities, counties and gun control advocates argue that penalizing local lawmakers under the later 2011 law violates legislative immunity, a principle that lawmakers cannot be punished for acting in their capacity as legislators, such as by voting on and enacting laws.
“This is a legislative fire hose to put out a birthday candle,” the attorney representing Fried’s side, Edward Guedes, told Justices.
Guedes said local lawmakers, such as City and County Commissioners, are inherently granted legislative immunity even though it’s not explicitly outlined in the Florida Constitution. Previous federal and state cases have justified the existence of legislative immunity.
Chief Justice Charles Canady, who was appointed in 2008 by then-Republican Gov. Charlie Crist, disputed Guedes’ characterization that legislative immunity is inherent to local lawmakers. Canady noted a line in the constitution that local governments may exercise power “except as otherwise provided by law.”
“Our cases are very clear about the superiority of the legislative power in this arena,” Canady said. “That’s why this whole case is kind of mystifying to me, because underlying what the Legislature has done is this expressed constitutional provision.”
However, Guedes argued the Legislature went a step further by allowing local lawmakers to pass ordinances on guns and outlining that legislating guns is possible but then punishing individual lawmakers for voting for a measure that violates the preemption.
Furthermore, he said cases involving alleged violations of the preemption would bring local lawmakers to court, and they would have to answer questions about the intent behind their vote. That would violate the separation of powers, he continued.
“Local democracy must be allowed to survive in our cities and our counties even at the expense of some legislative frustration,” Guedes said.
Justice John Couriel, appointed by Republican Gov. Ron DeSantis in 2020, agreed that adjudicating lawmakers’ motives would violate the separation of powers. However, he said the argument misses the mark because the Legislature created a civil penalty instead of calling for inquiries into local officials.
“If I’m inclined to agree with you that probing into the motivations and the internal thought processes of legislators is constitutionally problematic for the separation of powers, I’m not sure how that carries the day,” Couriel said. “I’m not sure why that’s the basket you’re putting your eggs into.”
Daniel Bell, representing the state, kept his arguments brief, mainly asserting that legislative immunity is common law and that Fried’s side was applying common law as a constitutional protection. While Guedes cited the sections of the Florida Constitution that allows for local governments and establishes home rule for those governments, Bell said the sections were only relevant in that they deem the Legislature superior to local governments.
“It says that local officials have only those powers that are not inconsistent by general law, meaning that they are subject to the plenary control of the Legislature,” Bell said. “With that hierarchy established, there’s no reason the Legislature wouldn’t be able to provide penalties for its statute just like any other statute.”
Guedes, facing a barrage of questions by the panel of seven Justices — all appointed by Republican Governors — went over his initially allotted time by speaking for 27 minutes. But oral arguments in the case still wrapped ahead of schedule, as Bell completed his argument in only 8 minutes.
The case, initially brought by several cities including Coral Springs and its then-City Commissioner Dan Daley, who is now a Democratic Representative, has been joined by more than 30 other cities and counties and Fried, in her capacity as Agriculture Commissioner. The suit won in the Circuit Court of Leon County, but that verdict was reversed by the First District Court of Appeal.
The scope of the 2011 penalties law was expanded with passage of another law, signed by DeSantis, that subjects unwritten firearm policies — such as those used by a police department — to the 1987 preemption.
The National Rifle Association and other gun rights organizations joined the state in opposing the suit. Giffords Law Center To Prevent Gun Violence and other gun law reform groups have joined the cities.
Daley appeared with Fried in Orlando Wednesday to outline their case, noting that the sixth anniversary of the mass shooting at Orlando’s Pulse nightclub is Sunday.
“As an attorney, I have never seen such an egregious attempt to have our local electeds be personally sued and liable because of an action they took in their official capacity. That is now how this works,” Fried said.
Daley also called attention to the mass shooting at his alma mater, Marjory Stoneman Douglas High School in Parkland, charging that the state did nothing after Pulse and “the bare minimum” after Parkland.
The Supreme Court’s decision is expected within weeks or months.
“I believe we’re on the right side of history,” Daley said.
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Scott Powers of Florida Politics contributed to this report.
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