City of Okeechobee, FL violated State Preemption FS 790.33.

Miami_JBT

Miami_JBT

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City of Okeechobee, FL violated State Preemption FS 790.33.

OK_Sign_jpg-3334798.JPG


The legal authority under that act is wrong. It cites 870.043, a Declaration of emergency.

FS 870.043 states the following:

Whenever the sheriff or designated city official determines that there has been an act of violence or a flagrant and substantial defiance of, or resistance to, a lawful exercise of public authority and that, on account thereof, there is reason to believe that there exists a clear and present danger of a riot or other general public disorder, widespread disobedience of the law, and substantial injury to persons or to property, all of which constitute an imminent threat to public peace or order and to the general welfare of the jurisdiction affected or a part or parts thereof, he or she may declare that a state of emergency exists within that jurisdiction or any part or parts thereof.

There is no current threat of rioting and rebellion against the state, county, nor city. Furthermore, they are not fulling stating FS 870.044 in its entirety.

870.044 Automatic emergency measures.—
Whenever the public official declares that a state of emergency exists, pursuant to s. 870.043, the following acts shall be prohibited during the period of said emergency throughout the jurisdiction:
(1) The sale of, or offer to sell, with or without consideration, any ammunition or gun or other firearm of any size or description.
(2) The intentional display, after the emergency is declared, by or in any store or shop of any ammunition or gun or other firearm of any size or description.
(3) The intentional possession in a public place of a firearm by any person, except a duly authorized law enforcement official or person in military service acting in the official performance of her or his duty.

Nothing contained in this chapter shall be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in a criminal act. History.—ss. 4, 5, ch. 70-990; s. 1401, ch. 97-102; s. 2, ch. 2006-100.

The final part of 870.044 bars the enforcement of banning people from carrying arms.

The City of Okeechobee and its employees are in violation of 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.

(a) Any person, county, agency, municipality, district, or other entity that violates the Legislature’s occupation of the whole field of regulation of firearms and ammunition, as declared in subsection (1), by enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field shall be liable as set forth herein.
(b) 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. It is no defense that in enacting the ordinance, regulation, or rule the local government was acting in good faith or upon advice of counsel.

I have sent official notice to the City of Okeechobee.
 
I guess I don't get it.

The state legislature clearly says they are the final authority on possession and no one else can make any rules on the topic.

870.044 (3) is a product of the state legislature. Therefore, by the authority of the state legislature, who says they reserve all authority on the topic of firearm possession, when a public official declares a state of emergency "the intentional possession in a public place of a firearm" is banned.

Since the state legislature is the one who prescribes that the ban on possession will go into effect when the stated circumstances exist (declared state of emergency), I don't see how there is any overstep on the part of the public official. The public official is just following the rules explicitly laid out by the state legislature.

If the public official made up his own rules, then he would be in violation of the pre-emption law. But he didn't make up any rules. He posted the state law on the topic.

This needs to be addressed at the state level. If the state legislature removes or modifies 870.044 (3), then it's a whole different story. As it stands, the public official is actually just quoting a law which was made by the state legislature who claims they are the final authority on the topic.
Nothing contained in this chapter shall be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in a criminal act. History.—ss. 4, 5, ch. 70-990; s. 1401, ch. 97-102; s. 2, ch. 2006-100.

The final part of 870.044 bars the enforcement of banning people from carrying arms.
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Clearly, it does not. It might prevent the firearms from being seized, but the person in question would still be subject to whatever penalty is prescribed for violating 870.044 Furthermore, IF, per 870.044, they are possessing the firearms unlawfully, then they are engaged in a criminal act and therefore the clause preventing seizure does not apply.
 
JohnKSa said:
I guess I don't get it.

The state legislature clearly says they are the final authority on possession and no one else can make any rules on the topic.

870.044 (3) is a product of the state legislature. Therefore, by the authority of the state legislature, who says they reserve all authority on the topic of firearm possession, when a public official declares a state of emergency "the intentional possession in a public place of a firearm" is banned.

Since the state legislature is the one who prescribes that the ban on possession will go into effect when the stated circumstances exist (declared state of emergency), I don't see how there is any overstep on the part of the public official. The public official is just following the rules explicitly laid out by the state legislature.

If the public official made up his own rules, then he would be in violation of the pre-emption law. But he didn't make up any rules. He posted the state law on the topic.

This needs to be addressed at the state level. If the state legislature removes or modifies 870.044 (3), then it's a whole different story. As it stands, the public official is actually just quoting a law which was made by the state legislature who claims they are the final authority on the topic.

Clearly, it does not. It might prevent the firearms from being seized, but the person in question would still be subject to whatever penalty is prescribed for violating 870.044 Furthermore, IF, per 870.044, they are possessing the firearms unlawfully, then they are engaged in a criminal act and therefore the clause preventing seizure does not apply.
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870.043 can only be declared for rioting, not a hurricane.
 
Well, it's more general than that. There just has to be "...act of violence or a flagrant and substantial defiance of, or resistance to, a lawful exercise of public authority...". A riot would fit the bill. I would think that looting could qualify as well. I don't know what's going on in Okeechobee, but, yes, if there's nothing like that going on there, then you are right--someone is going to be in trouble when this is all over with.
 
JohnKSa said:
Well, it's more general than that. There just has to be "...act of violence or a flagrant and substantial defiance of, or resistance to, a lawful exercise of public authority...". A riot would fit the bill. I would think that looting could qualify as well. I don't know what's going on in Okeechobee, but, yes, if there's nothing like that going on there, then you are right--someone is going to be in trouble when this is all over with.
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Okeechobee is a tiny little town. There is no issue there at all. The county it is in has more cattle than people. The place is a speed trap kinda place.
 
Then that's a problem. I imagine the public official will get to try to make his case for why he declared an emergency in court after things get back to normal.
 
Yeah, that's even more general.

"...a clear and present danger of a riot or other general public disorder, widespread disobedience of the law, and substantial injury to persons or to property,..."

That makes it a judgement call. The guy can claim: "I believed there was a clear and present danger of looting which would cause substantial injury to property." and he's pretty much covered unless the state can explain why that didn't make any sense.
 
870.043 allows the city to declare an emergency if something has happened. Nothing has happened. They're using the justification of an impending hurricane, not violence or insurrection that has actually happened.

870.043 Declaration of emergency.—Whenever the sheriff or designated city official determines that there has been an act of violence or a flagrant and substantial defiance of, or resistance to, a lawful exercise of public authority and that, on account thereof, there is reason to believe that there exists a clear and present danger of a riot or other general public disorder, widespread disobedience of the law, and substantial injury to persons or to property, all of which constitute an imminent threat to public peace or order and to the general welfare of the jurisdiction affected or a part or parts thereof, he or she may declare that a state of emergency exists within that jurisdiction or any part or parts thereof.

And Okeechobee cites 870.045, the measures they're allowed to take under 870.043, but 870.045 doesn't allow them to regulate firearms. So even if they think they're justified in a state of emergency they're taking actions that are not covered under 870.045.

870.045 Discretionary emergency measures.—Whenever the public official declares that a state of emergency exists, pursuant to s. 870.043, he or she may order and promulgate all or any of the following emergency measures, in whole or in part, with such limitations and conditions as he or she may deem appropriate:
(1) The establishment of curfews, including, but not limited to, the prohibition of or restrictions on pedestrian and vehicular movement, standing, and parking, except for the provision of designated essential services such as fire, police, and hospital services, including the transportation of patients thereto, utility emergency repairs, and emergency calls by physicians.
(2) The prohibition of the sale or distribution of any alcoholic beverage, with or without the payment or a consideration therefor.
(3) The prohibition of the possession on any person in a public place of any portable container containing any alcoholic beverage.
(4) The closing of places of public assemblage with designated exceptions.
(5) The prohibition of the sale or other transfer of possession, with or without consideration, of gasoline or any other flammable or combustible liquid altogether or except by delivery into a tank properly affixed to an operable motor-driven vehicle, bike, scooter, boat, or airplane and necessary for the propulsion thereof.
(6) The prohibition of the possession in a public place of any portable container containing gasoline or any other flammable or combustible liquid.
Any such emergency measure so ordered and promulgated shall be in effect during the period of said emergency in the area or areas for which the emergency has been declared.

Unless the city found some case law that they think expands this beyond what the statute says, I think they screwed up.
 
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For those not from this area... this particular "city" isn't very much at all. I would speculate that whoever the city's attorney is... was probably not a very skilled individual at all since a quick check of applicable state law (as noted above...) would clearly show how badly they're mistaken... Additionally I doubt that any of the folks in this mostly farmland area paid the slightest attention to their city's declaration... Having said that let's hope they get the beating they deserve in whatever courtrooms end up dealing with the sure to come legal actions...
 
When most people here think about Okeechobee, they're really thinking of the county. Most of the people in Okeechobee are outside city limits. W&W Lumber is outside the city limits. The turn to 98 is outside city limits. Everything south of Walmart is outside city limits. It's a small city with a population of about 5000 people. This affected a small number of people who probably knew nothing about it.

jmorris said:
What would the repercussions be?
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There is a $5000 fine for a public official violating the preemption statute. The preemption statute was in place for years, and so were the signs in our local parks with firearms on the list of prohibited items in the parks. When the penalty was passed, blue tape went over "FIREARMS"- almost immediately.

790.33 (3)(c) 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.
(d) 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.

If I were a police chief and a couple of employees threw together a document causing me to pay a $5000 fine out of my pocket, they would at the very least get a stern talking to.
 
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JohnKSa said:
Then that's a problem. I imagine the public official will get to try to make his case for why he declared an emergency in court after things get back to normal.
Click to expand...

JohnKSa said:
Yeah, that's even more general.

"...a clear and present danger of a riot or other general public disorder, widespread disobedience of the law, and substantial injury to persons or to property,..."

That makes it a judgement call. The guy can claim: "I believed there was a clear and present danger of looting which would cause substantial injury to property." and he's pretty much covered unless the state can explain why that didn't make any sense.
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The city publicly admitted they screwed up. You can listen to the audio from last night's meeting.
 
I don't think you're foolish enough that you would be willing to engage in totally pointless behavior, so I think it's safe to assume that you do believe there's a chance for prosecution or you wouldn't have bothered to inform them that they were in violation. I also don't think they would have rescinded the order and tried to make nice if there were truly no chance of prosecution.

So, hyperbole and rhetoric aside, let's try that again.

Do you know if anyone has officially started looking into this situation?
 
JohnKSa said:
I don't think you're foolish enough that you would be willing to engage in totally pointless behavior, so I think it's safe to assume that you do believe there's a chance for prosecution or you wouldn't have bothered to inform them that they were in violation. I also don't think they would have rescinded the order and tried to make nice if there were truly no chance of prosecution.

So, hyperbole and rhetoric aside, let's try that again.

Do you know if anyone has officially started looking into this situation?
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The State will not prosecute because Okeechobee is one of their own. That's very common in a partisan one party state like FL.

790.33 carries weight, and gives us as an organization the teeth. We pushed for that primarily because a few years back, the State never prosecuted and we had sympathetic lawmakers who were tired of preemption being violated since the AG's office never would go after places that violated preemption.

So, we can sue individually under state law. That's why my appearance carried weight, we can sue them individually and they pay out of pocket. They have no qualified/sovereign immunity under the law due to preemption. And they know it.
 
What I didn't say is that you could certainly shove this - right up their noses - but is it worth it? After I retired out of police work - all those years ago my only vow - was to spend the rest of my life - away from (as far as possible) any court room... The only folks that benefit from our "legal system" are those who are paid to be there (just my jaundiced opinion...). For me, it would be enough if they admitted their errors and agreed not to do this sort of stuff again... . I know, I'm a dreamer. The real benefit in these kinds of situations is for officials at any level of government being shown that folks are paying attention and willing to hold them to account when they violate basic rights (whether 2A or other....).

Consider it a form of Pest Control...
 
I am glad it worked out / is working out for you brothers & sisters in FL whether or not the local gov't knew in advance of violations.

I find the speaker admission of error, in plain English and on record, as admirable on its face. Would appreciate if they do in fact have a followup presentation with the GOA.

Speaking of, as you volunteered the after meeting informational presentation and looking at all things leagleese I could only suggest some type of formal GOA followup letter in a week to 10 days, in regards to the presentation offer.

GOA member here, scrolling on my somewhat old GOA mousepad
:)

Thanks!
 
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