HomeMy WebLinkAboutR-2018-072 Supporting The Municipalities And Broward County Which Filed Lawsuits Seeking A Declaration That The Provisions Punishing Elected Officials Set Forth In Section 790.33, Florida Statutes RESOLUTION NO. 2018-072
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, SUPPORTING THE MUNICIPALITIES AND
BROWARD COUNTY WHICH FILED LAWSUITS SEEKING A
DECLARATION THAT THE PROVISIONS PUNISHING ELECTED
OFFICIALS SET FORTH IN SECTION 790.33, FLORIDA STATUTES, FOR
VIOLATING THE PREEMPTION RELATED TO THE REGULATION OF
FIREARMS AND AMMUNITION, ARE INVALID; PROVIDING FOR
CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, over the past several years there have been an unprecedented number of
mass shootings in American communities including, most recently, at Marjory Stoneman
Douglas High School in Parkland, Florida; and
WHEREAS,National and State leaders continue to fail to act to implement sensible gun
law reforms that are supported by a majority of the nation; and
WHEREAS, in Section 790.33, Florida Statutes, the State of Florida (a) declared that it
is occupying the whole field of regulation of firearms and ammunition, to the exclusion of all
existing and future county or city ordinances, regulations, or rules, (b) purports to prohibit the
enactment of any future ordinances or regulations "relating to firearms," and (c) also purports to
create potential liability for damages for actions other than ordinances and regulations, including
any "measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced;"
and
WHEREAS, the purported preemption, by using the terms "relating to firearms" and
"any measure, directive, rule, enactment, order or policy promulgated," is extremely broad and
vague, and could apply to a panoply of measures that local municipalities and county
governments would like to consider enacting, including requiring licensed importers, licensed
manufacturers and licensed dealers to notify the City if a potential buyer or transferee is given a
non-approval number by the Florida Department of Law Enforcement, the restricting of guns in
City facilities and parks, the placing of signs relating to guns in City facilities and parks, the
regulation of gun accessories (such as high capacity magazines, or bump stocks) or the creating
of"gun free zones"or"gun safe zones;" and
WHEREAS, the potential violation of the broad and vague preemption of firearm
regulation in Section 790.33, Florida Statutes, carries the risk of onerous and punitive
consequences, including but not limited to damages up to One Hundred Thousand Dollars
($100,000.00) and fines up to Five Thousand Dollars ($5,000.) (for which the official may be
personally liable), removal from office by the Governor without due process of law, and a
prohibition of the use of public funds to pay or reimburse the official for fines, damages or
defense costs (collectively, the "Onerous Preemption Penalties"); and
WHEREAS, as a result of the Onerous Preemption Penalties, the City Commission and
its members fear taking any steps that could even remotely be viewed as a violation of the
preemption, creating a chilling effect upon City action and preventing the City Commission from
responding to the petitions and requests of the City's residents to do something to protect against
the dangers of firearms; and
WHEREAS, local municipalities and county governments desire to consider various
reasonable measures related to firearms, including requiring licensed importers, licensed
manufacturers and licensed dealers to notify the City if a potential buyer or transferee is given a
non-approval number by the Florida Department of Law Enforcement, the regulation of firearm
accessories (high capacity magazines, or bump stocks), or other measures related to firearms, but
have refrained from doing so because they could possibly be viewed as falling under the
preemption and be subjected to the Onerous Preemption Penalties; and
WHEREAS, the Onerous Preemption Penalties strike at the core of the American system
of democratic representation: they suppress, in an insidious, Orwellian fashion, the voice of the
local electorate through intimidation of local elected officials; and
WHEREAS, the Onerous Preemption Penalties infringe on the free speech rights of city
and county commissions and their members, and interfere with their ability to perform their
official duties; and
WHEREAS, the Onerous Preemption Penalties infringe upon the legislative immunity
the members of a city and county commission enjoy under law when casting votes in their
official capacities; and
WHEREAS, the portion of the Onerous Preemption Penalties related to the removal
from office by the Governor conflicts with Article 4, Section 7 of the Florida Constitution, by
allowing the Governor to remove a municipal official who has not been indicted for any crime,
and violates due process; and
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WHEREAS, under federal law, licensed gun dealers are mandated to conduct a National
Instant Criminal Background Check System ("NICS") check before proceeding with a sale, but
this requirement does not apply to so-called private sellers who are present in large numbers at
gun shows and sell guns over the internet; and
WHEREAS, according to Everytown for Gun Safety Support Fund Inc. ("Everytown for
Gun Safety"), which is an independent, non-partisan 501(c)(3) organization dedicated to
understanding and reducing gun violence in America:
• Background checks are a central component of America's efforts to keep guns from
criminals: since their inception, they have blocked over 3 million gun sales to prohibited
purchasers.
• According to a study by the Department of Justice, between 1994 and 2014, federal, state,
and local agencies conducted background checks on more than 180 million firearm
applications and denied 2.82 million gun sales to prohibited purchasers; and
WHEREAS, despite this success, the background check system is undermined by
substantial legal exceptions that create gaping loopholes as well as missing records that enable
too many dangerous individuals to obtain firearms they later use in crimes; and
WHEREAS, in the wake of the 2007 Virginia Tech shootings as well as many other
shootings where the shooter should have failed a background check had the databases been
populated with disqualifying information, the U.S. Department of Defense, the State of Virginia
and other states have submitted hundreds of thousands of new mental health and otherwise
disqualifying records into the NICS database; and
WHEREAS, on October 21, 2012, Radcliffe Haughton, who had been issued a
restraining order and was not allowed to possess firearms, used a semi-automatic handgun to
shoot and kill his estranged wife and two others; Haughton avoided a background check by
purchasing the firearm online the day before the shooting; and
WHEREAS, it is estimated that 6.6 million guns were sold privately in the U.S. between
November 2011 and November 2012, and undercover investigations nationwide have shown that
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many private sellers at gun shows and online will proceed with sales even when they are made
aware that prospective purchasers cannot pass a background check; and
WHEREAS, more than 12,000 Americans are murdered with guns every year, and too
many of these crimes are committed by individuals who are barred from purchasing or
possessing guns under federal law; and
WHEREAS, other tragedies including the 1999 Columbine High School shooting in
Colorado, the 2010 attack on law enforcement at the Pentagon, and the 2012 mass shooting at a
Pittsburgh psychiatric clinic were perpetrated by individuals who obtained guns through
unregulated private sales, with no paperwork required and no questions asked; and
WHEREAS, the Fix Gun Checks Act was introduced in the U.S. Congress, and this
legislation would have addressed the two major flaws in the nation's gun background check
system by improving compliance with federal record reporting requirements, and by requiring
background checks for all U.S. gun sales; and
WHEREAS, 90 percent of Americans and 90 percent of gun owners support fixing gaps
in the gun background check database, and 86 percent of Americans, 82 percent of gun owners
nationwide, and 74 percent of National Rifle Association ("NRA") members support mandatory
criminal background checks for all gun sales; and
WHEREAS, more than 50 national organizations support closing gaps in the gun
background check database and requiring a background check for all gun sales, including the
U.S. Conference of Mayors, National Urban League, National Association for the Advancement
of Colored People, and the National Coalition Against Domestic Violence, the International
Association of Chiefs of Police, the Major Cities Chiefs Association and the Police Executive
Research Forum; and
WHEREAS, as continued legislative and public attention is being directed to improving
the databases to keep firearms out of the hand of those who are disqualified from purchase,
ownership and possession, there will be both more who attempt to purchase legally, and more
who seek to exploit the private sale exception; and
WHEREAS, Florida Statutes section 790.065(2)(c)1. already requires Florida
Department of Law Enforcement ("FDLE"), upon a request for criminal history record involving
the purchase of a firearm to:
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Review any records available to it to determine whether the potential buyer or
transferee has been indicted or has had an information filed against her or him for
an offense that is a felony under either state or federal law, or, as mandated by
federal law, has had an injunction for protection against domestic violence entered
against the potential buyer or transferee under s. 741.30,has had an injunction for
protection against repeat violence entered against the potential buyer or
transferee under s. 784.046, or has been arrested for a dangerous crime as
specified in s. 907.041(4)(a) or for any of the following enumerated offenses:
a. Criminal anarchy under ss. 876.01 and 876.02.
b. Extortion under s. 836.05.
c. Explosives violations under s. 552.22(1) and(2).
d. Controlled substances violations under chapter 893.
e. Resisting an officer with violence under s. 843.01.
f. Weapons and firearms violations under this chapter.
g. Treason under s. 876.32.
h. Assisting self-murder under s. 782.08.
i. Sabotage under s. 876.38.
j. Stalking or aggravated stalking under s. 784.048.; and
WHEREAS, in March 2018, the Tampa Bay Times reported that the state ran 1.7 million
gun background checks over the last two years as a result of mandated background checks; of
them, just over 26,000 were rejected including nearly 8,500 felons; 1,600 people with active
warrants; 2,400 domestic violence abusers; 1,759 for mental health-related issues, 1,137 non-
citizens and 25 people dishonorably discharged from the military; and
WHEREAS, when someone fails to disclose on the background check form they are, in
fact, a convicted felon, there is a high likelihood they may have lied on the form in the effort to
purchase a weapon;and
WHEREAS, when domestic violence abusers or those under court order to not purchase
or possess a firearm attempt to purchase a weapon, the consequences can be catastrophic if they
ultimately get their hands on a firearm; it is estimated by Everytown for Gun Safety that, on
average, 50 women per month on average are murdered by an intimate partner with a firearm and
more than half of those killed in domestic violence incidents are murdered with a firearm; and
WHEREAS, after the Marjory Stoneman Douglas High School tragedy, the Florida
Legislature passed a new law, Florida Statutes section 790.401 et seq., empowering law
enforcement to seek an emergency Risk Protection Order from a court of competent jurisdiction
to restrict purchase and possession of firearms and ammunition by those who pose a significant
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danger to themselves or others, including significant danger as a result of a mental health crisis
or violent behavior; and
WHEREAS, FDLE is not required to tell local law enforcement if someone fails a
background check; and
WHEREAS, if local law enforcement is notified a person attempted to purchase a
firearm but was disqualified as a result of the required background check, local police can (1)
follow-up to determine if a crime was committed; (2) notify a court of competent jurisdiction or
potential victims that someone who is prohibited from purchasing a firearm has attempted to do
so; (3) have more information to protect themselves when encountering someone who is
prohibited from possessing a firearm if they have the information the person has made such an
attempt; (4) utilize that information when assessing a person who may be in crisis and may be
subject to removal of firearms temporarily pursuant to Florida Statutes section 790.401; and (5)
make contact to make sure the person has not purchased and does not possess a firearm; and
WHEREAS, it has been reported that investigators believe that the alleged shooter at
Marjory Stoneman Douglas ended his massacre and fled the scene because his weapon jammed
while he was changing magazine clips, having run out of ammunition; and
WHEREAS, large capacity magazines were employed in many of our country's
deadliest mass shootings — including the Sandy Hook shooting in Newton, at a concert in Las
Vegas, Nevada, at a nightclub in Orlando, Florida, at a movie theatre in Aurora, Colorado, in a
church in Sutherland Springs, Texas, on a military base at Ford Hood, in a supermarket parking
lot in Tucson, Arizona, in an office building in San Francisco, California, and most recently at
Marjory Stoneman Douglas High School; and
WHEREAS, although detachable large-capacity magazines are typically associated with
machine guns or semi-automatic assault firearms, such devices are available for any semi-
automatic firearm that accepts a detachable magazine, including semi-automatic handguns; and
WHEREAS, limiting large capacity magazines provides greater protection to law
enforcement because shooters without large capacity magazines must reload, and put themselves
in a position to be subdued, before they can cause mass casualties; and
WHEREAS, in District of Columbia v. Heller, the United States Supreme Court
specifically acknowledged that the Constitutional protections afforded by the Second
Amendment to the Constitution of the United States are not unlimited; and
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WHEREAS, multiple federal courts, including the Fourth Circuit sitting en bane in
Kolbe v. Hogan, the Second Circuit in New York State Rifle and Pistol Ass'n, Inc. v. Cuomo, and
the Seventh Circuit in Friedman v. City of Highland Park. IL, have held that prohibitions on
assault-style firearms, as defined in law, and large capacity magazines do not violate the Second
Amendment, finding that the Second Amendment does not reach to protect private citizens
obtaining and possessing firearms of war; and
WHEREAS, the City of Dania Beach advocates for common-sense policies that keep
guns out of dangerous hands while respecting the rights of law-abiding gun owners, and strongly
believes that Congress and state governments should take action to close deadly gaps in the
NICS; and
WHEREAS, a local ordinance to require notification of persons who are unable to
legally possess a firearm does not impact the "regulation of firearms and ammunition, including
purchase, sale, transfer, taxation, manufacture, ownership, possession, storage and transportation
thereof...."; in fact, by definition, the only individuals impacted are those who have been
determined by other laws that are able to purchase, own or possess a firearm; their rights have
been determined by other laws not ordinances enacted by local governments and a local
ordinance would merely require the communication of nonapproval information to local law
enforcement on persons who were already prohibited from purchasing, owning or possessing a
firearm; and
WHEREAS, in the recent passage of the Marjory Stoneman Douglas High School Public
Safety Act, the Florida legislature failed to include the requirement that FDLE notify local law
enforcement; and
WHEREAS, a lawsuit was filed with ten (10) municipalities (Weston, Miramar,
Pompano Beach, Pinecrest, South Miami, Miami Gardens, Miami Beach, Coral Gables, Cutler
Bay, and Lauderhill) and thirty one (31) elected officials in the Circuit Court of the Second
Judicial Circuit in and for Leon County, Florida, Case No. 2018 CA 0000699; and another ten
(10) municipalities (Boca Raton, Surfside, Tallahassee, North Miami, Orlando, Fort Lauderdale,
Gainesville, St. Petersburg, Maitland, and Key Biscayne) have voted to join the Leon County
lawsuit; four(4) cities (Coral Springs, Pembroke Pines, Coconut Creek and Wilton Manors) filed
an Amended Complaint in the Seventeenth Judicial Circuit in and for Broward County, Florida,
Case No. CACE-18-008664; and Broward County filed a lawsuit in the Circuit Court of the
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Second Judicial Circuit in and for Leon County, Florida, Case No. 2018 CA 000882; these
lawsuits seek a declaration that the provisions punishing elected officials set forth in Section
790.33, Florida Statutes, for violating the preemption related to the regulation of firearms and
ammunition are invalid("Lawsuits");
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA;
Section 1. That the foregoing "WHEREAS" clauses are ratified and confirmed as
being true and correct and are made a part of this Resolution.
Section 2. The City Commission supports the decision of municipalities and the
Broward County Board of County Commissioners to file lawsuits seeking to invalidate the
Onerous Preemption Penalties contained in Florida Statutes Section 790.33 and invites and urges
other local governments and elected officials to support these municipalities and Broward county
governments.
Section 3. The City Clerk is directed to distribute this Resolution to all municipal and
county governments in Broward County, Florida.
Section 4 That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 5. That this Resolution shall be in full force and take upon its passage and
adoption.
PASSED AND ADOPTED on May 22, 2018.
PRpI F►�T C
ATTEST:
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THOMAS SCHNEIDER, CMC TAMARA AJA OOS
CITY CLERK a , MAYOR
APPROVED AS TO FO D CORRECTNESS:
THOMAS . ANS
CITY ATTORNE
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