One of the most important issues facing this country today is gun violence and how to prevent it.  Lawyers can play a vital role in advising legislators who want to enact meaningful gun regulations, and by using their skills to try to prevent the adoption of laws designed to block meaningful gun regulations.  Last month, a Proskauer team achieved a victory with nationwide implications by persuading a Florida state trial court to strike down a Florida gun law as unconstitutional.

The Florida law preempted “the whole field of regulation of firearms and ammunition,” meaning municipalities and counties could not pass gun regulations.  Unfortunately, such a preemption provision is not unusual, but in 2011, the Florida legislature took it a step further by adding substantial penalties for violating the preemption.  Under the law, if a municipality enacts a gun law later found preempted, it is subject to a private damages lawsuit with liability up to $100,000, plus uncapped attorneys’ fees, and the legislators who voted for the preempted law are subject to a $5,000 fine and removal from office by the governor.

In April 2018, two months after the shooting at Marjory Stoneman Douglas High School in Parkland, Florida, Proskauer, and its co-counsel Everytown for Gun Safety, filed suit challenging the Florida penalties on behalf of four municipalities surrounding Parkland, Florida, and an elected official from each municipality.  In the aftermath of the shooting, our clients wanted to enact gun regulations that they did not believe were preempted by the vague phrase “firearms and ammunition,” such as by requiring the reporting of failed background checks and prohibiting the sale of large capacity magazines that attach to guns.  However, the local legislators were afraid to pass those laws because of the draconian penalties they faced if the courts found the vague state law preempted such local legislation.

According to the National Rifle Association (NRA), a principal sponsor of the challenged legislation and which filed an amicus brief supporting the penalties, “even assuming that it is unclear whether Plaintiffs’ proposed ordinances would be preempted, their hesitation to enact the ordinances is precisely the virtue of the penalty provisions.”

As a result of a consolidation of the Proskauer/Everytown case with two similar cases Plaintiffs in the consolidated case included 30 municipalities, 3 counties, more than 70 elected local officials, and 1 citizen.  After the court denied the Defendants’ motion to dismiss and extensive discovery by Defendants, both sides moved for summary judgment.

In a 15-page decision, a Florida Circuit court judge declared the law unconstitutional, ruling that it violated both legislative immunity and government function immunity.

One of the Defendants, Nikki Fried, a Florida state official, announced she would not appeal the decision, stating that “the Florida gun preemption law’s punishments are some of the most extreme anywhere in the nation — and the courts have rightly ruled them unconstitutional.”  However, the remaining State Defendants filed an appeal to Florida’s First District Court of Appeal.  Given the significance of the issues involved – a number of other states have enacted, or are considering enacting, similar punitive gun preemption laws – the case will be closely watched.

It has been an honor for me to lead the Proskauer team in this case, which consists of partner Chantel Febus; associates David Bayer, Jennifer Tarr, Amanda Johnson, Kelly Landers Hawthorne, Carl Mazurek, and Lucy Wolf; and legal assistants Ethan Gibbs and Laura Geary; with assistance from attorneys and legal assistants in our Florida office.