Appellate court rejects lawsuit filed against City of Tallahassee

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By: Julie Montanaro
February 3, 2017

TALLAHASSEE, Fla. (WCTV) – The City of Tallahassee prevails in its latest battle with the gun lobby.

Friday, the First District Court of Appeals rejected a lawsuit filed against the City by Florida Carry and the Second Amendment Foundation regarding a city gun ordinance.

Florida Carry had sued the City over its ban on firing guns in public parks and recreational areas, saying the City should be forced to repeal it and commissioners should be fined for refusing to do so.

The lawsuit named former Tallahassee Mayor John Marks, and Commissioners Nancy Miller, Gil Ziffer and Andrew Gillum.

The City argued that while the law has been on the books for decades, it has not been enforced in at least ten years.

The appeals court today said "publishing" the law and "promulgating" it are two different things.

The appeals court refused to order the City to take a vote to repeal it. It refused to fine individual commissioners, but it also refused the City's request to have that portion of the law deemed unconstitutional.

Following the court's decision, Tallahassee Mayor Gillum said in a statement, "Today's decision is a victory for citizens over the gun lobby, Florida Carry and the Second Amendment Foundation. Once again, my colleagues and I have been found to have done no wrong in the eyes of the law. However, this ruling still ignores two years of litigation by special interests intended to bully local governments. I'm disappointed that the courts have failed to rule on the constitutionality of these tactics, and we will be reviewing our legal options to best protect the ability for our citizens to decide local solutions to local issues."

To read the complete decision, click here.

By: Mariel Carbone
January 10, 2017

TALLAHASSEE, Fla. (WCTV)—Tallahassee City leaders appeared at the First District Court of Appeals Tuesday morning for a suit filed by Florida Carry and the Second Amendment Foundation regarding a city gun ordinance.

Florida Open and the Second Amendment Foundation said the City of Tallahassee must repeal a gun ordinance that has been on the books for about 25 years, which bans anyone from shooting a gun in a city park. This, after the state of Florida enacted legislation in 2011, preempting local government from creating any regulations on guns.

The law, in part, reads as follow:

790.33 Field of regulation of firearms and ammunition preempted.—
(1) 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.

It goes on to say that any local official who violates this law, is subject to a fine of $5,000, removal from office by the government and to pay fees of a prevailing attorney.

In the Florida Carry and Second Amendment Foundation suit, then Mayor John Marks and Commissioners Nancy Miller, Gil Ziffer and Andrew Gillum were named.

Today, Florida Carry was looking for the court to rule that the City must act.

“We wanted to discuss today… that we had to get some type of judgement from the court because the fact is, ordinances are presumed to be valid until they are overturned,” said Eric Friday, representing Florida Carry.

But, the City said the ordinance in question, is technically null, based on the 790.33. And therefore, there is no need to act.

“It’s not a matter of repealing, we had an ordinance on the books. They want us to go back and just repeal what was there already, and we don’t have to do that,” said former Mayor John Marks.
“Apparently the state has preempted the field already, so if they preempted there’s no reason for us to go back and repeal. Unless they’ve made a decision we don’t have to do anything.”

The City, rather, is looking at this from a constitutional standpoint, and is challenging the potential personal punishment, as well as the preemption law.

“In one word it’s ridiculous for an individual to be sued for acting in a government capacity, I think that’s something that the legislature should look at,” said Marks.

The City officials said there should be immunity when acting in a government capacity, but Florida Carry disagrees.

“They have immunity when they act within their legislative capacity. But, the Legislature has said city Commissioners have no legislative capacity when it comes to enacting laws related to firearms and ammunition,” said Friday.

Mayor Andrew Gillum calls the law an overreach by the State.

“Although our case has to do specifically with guns, take out for a moment, guns and supplement in their land use regulation, water quality regulation, environmental regulation, local policies governing everything from our environment to our wages, and LGBT rights,” said Gillum. “You name it. If a law like this is able to stand, it allows for the state Legislature to penalize personally, elected officials who are elected by the citizens in their community over a policy difference, a difference in public policy. We believe that’s unjust, we believe that’s unfair. And today, we are making the stand that we also believe it’s unconstitutional.”

In regard to the issue of constitutionality, the Attorney General’s office argued that it isn’t a case of constitutionally. Friday, said Florida Carry isn’t taking a stance on the constitutional aspect of this case.

“Our position is go and reach constitutionality if you want to, but the fact is, there’s nothing unconstitutional about the Legislature saying you can’t do certain things,” said Friday. “When the Legislature says you have to issue marriage licenses if you’re a court clerk, or you have to paint the street lines yellow, that’s the Legislature’s right and the city doesn’t get to just change that because they don’t like the law.”

In response to this lawsuit, Gillum has launched his Campaign to Defend Local Solutions. He said some decisions are best made by the leaders closest to the people.

"We're not going to be bullied around by the Florida Legislature, or the Governor, or more powerfully, the special interest," he said. "Local matters. You elect local government officials because you want to empower them to make the decisions that are necessary to govern local communities."

No specific date is set for when the court will rule on the case, but Friday said if the court rules in favor of the City leaders, then, there’s still more work to be done.

“If they rule in favor of the City we will go back to the Legislature and try and write a law that does do what the Legislature has determined needs to happen, which is we need uniform firearm laws in this state one way or another. People should not be subject to a different law every time they cross a city or county line,” said Friday.

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