June 4, 2020

The Honorable Keith James
Mayor, West Palm Beach

6901 Okeechobee Blvd.
West Palm Beach, FL 33411

Re:  Your Declaration Infringing on the Gun Rights of Citizens

Dear Mayor James:

The American Constitutional Rights Union has a long and successful history of defending the Constitutional rights of our nation’s citizens against any breach of those rights, including by locally elected officials. This includes all the rights and privileges granted to American citizens under the Second Amendment.

Your “Declaration of State and Local Emergency” issued on June 3, 2020 has prompted us to contact you as it a cause of great concern and dismay as an unprecedented personal power grab and abridgement of the Constitutional freedoms of your constituents.

As this order infringes on the natural right of law-abiding citizens, as codified in our state and federal constitutions, to keep and bear firearms and ammunition, the only purpose of your order appears to be an erroneous and dangerous demonstration that you believe your power as Palm Beach Mayor supersedes the United States Constitution and the Supreme Court of the United States.  Any argument that your order is valid for “only three days” is indefensible. ACRU understands that our rights are not subject to the whims of any elected official for even three minutes, never mind three days.

To allow you, or any other local mayor, to do what you have done sets a dangerous precedent that puts us all at risk that any of our basic rights can be infringed any time a local politician decides, in his or her judgment, that there is some “danger” to their jurisdiction.

Furthermore, putting aside the lack of legal authority of your action, what could its possible efficacy be?  Not only do you not lay out a case why West Palm Beach faces a “clear and present danger” of uncontrolled rioting, you do not explain how preventing law abiding citizens from purchasing guns and ammunition (by definition they are law abiding and passing background checks – criminals will, of course ignore your order like they do all other laws) will prevent rioting.  Indeed, your order would only prevent law abiding citizens from defending themselves from this massive state of lawlessness you seem to anticipate.

Why punish the law abiding who might need to – as you have claimed – defend their life and property against the law breakers?

If you really planned to prevent a riot by infringing on fundamental rights, why not ban all public assembly and free speech, encroaching on a few more Amendments?  This kind of outrageous action would be equally as illegal and extra-Constitutional in depriving law-abiding citizens of their fundamental rights, and ACRU would of course oppose it as well.

Your declaration generally cites Florida Statute Sections 870.042 and 870.043 as a legal basis for your actions.  It is true that 870.042 allows a mayor to declare a state of emergency.  But this is modified by 870.043, which you cite in part,which requires, as you claimed, that there be a clear and present danger of a riot, etc.

However, that language is modified by a requirement that your community has experienced “an act of violence or a flagrant and substantial defiance of, or resistance to, a lawful exercise of public authority.”  These statutes and all the language contained therein must be read in pari materia and you must be able to demonstrate that such a situation already exists—not one you simply suggest may occur—before you invoke the power to stop sales of guns and ammo, as described in FS 870.044.

There are, in fact, no federal or state statutes you can list affording you the power you have claimed in your Declaration of Emergency under current and contemporaneous circumstances.

The Florida media would have widely covered the story had West Palm Beach descended into the level of anarchy that our legislature described in the statutory scheme. Thankfully, that is not the case—the protestors in your city have peacefully exercised their legitimate concerns over the death of Mr. George Floyd and the infringements of the civil rights of minorities that take place far too often.

As a defender of all civil rights, we must remind you that not only do Americans have a Second Amendment right to keep and bear arms, that same right is recognized in Article I, Section 8 of the Florida Constitution.

That state provision notes the right is subject only to limitation by the laws of Florida.  As every elected official should know, our legislature has passed myriad measures regarding the selling and possession of firearms.  Dealers are licensed.  Felons may not own guns.  Firearms may only be carried, concealed, with a lawful permit.  These are a few examples of the laws of our state respecting firearms.  They were enacted by a duly elected legislature and signed by an elected governor.

Not content with attempting to dismantle federal rights and codes, you have also placed yourself above the legislature and the governor.

This violates the principle of preemption enshrined in the U.S. Constitution’s Supremacy Clause and countless court decisions.  For example, in City of Miami Beach v. Florida Retail Federation Inc., 233 So.3d 1236 (Fla. 3rd DCA 2017) the Court held that municipal governments may exercise authority “except as otherwise provided by law.”  The Court notes this means that if the state regulates a subject matter, its provision will preempt that of the municipality.

In fact, all the way back in 1981, the same Third District Court of Appeal for Florida recognized that although municipalities may concurrently regulate the same subject as a state law, the local rule may not “conflict with the state law.”

In the case of your overreaching order, since state law allows Florida citizens to buy guns and ammunition, you cannot unilaterally dictate that they may not.

Your Declaration is void because it is unconstitutional for the federal and state rights and laws as we have demonstrated.

On behalf of the citizens of West Palm Beach, and indeed, all American citizens, we request that you immediately issue a new Declaration rescinding your original illegal dictate, regardless of time frame, and declaring your ban on the sale of guns and ammunition to be null and void.

Now that you fully understand the illegality of your Declaration and the usurpation of rights it contains, we look forward to your immediate action and response.

Sincerely,

Lori Roman
President