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Shooting at home

KYGlockster

Activist Member
Joined
Dec 9, 2010
Messages
1,842
Location
Ashland, KY
Perhaps this will help solve this matter -- an Attorney General opinion:

Number: AGO 2005-40
Date: July 12, 2005
Subject: County ordinance re discharge of firearms


The Honorable Roy Raymond
Sheriff, Indian River County
4055 41st Avenue
Vero Beach, Florida 32960-1808

RE: FIREARMS AND WEAPONS–COUNTIES–SHERIFFS–no authority for county to enact ordinance prohibiting discharge of firearms. s. 790.33, Fla. Stat.

Dear Sheriff Raymond:

You ask substantially the following question:

May a county pass an ordinance prohibiting the discharge of a firearm in proximity to persons or property when such discharge endangers the health, welfare, and safety of the citizens of such county?

This office has been advised that Indian River County joins in your request. You have proposed a county ordinance to prohibit the discharge of firearms within 300 yards of a building or public road or right-of-way in order to preserve the life and safety of the general public in Indian River County. The proposed ordinance specifies exceptions.[1] There remains a question, however, as to whether such an ordinance is prohibited by section 790.33, Florida Statutes.

Section 790.33, Florida Statutes, preempts the field of regulation of firearms and ammunition to the Florida Legislature, as follows:

"(1) PREEMPTION.– Except as expressly provided by 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, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto. Any such existing ordinances are hereby declared null and void. This subsection shall not affect zoning ordinances which encompass firearms businesses along with other businesses. Zoning ordinances which are designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are in conflict with this subsection and are prohibited."

While this office recognizes the need to protect the safety of the county’s citizens against the dangerous discharge of firearms in proximity to people and property, the Legislature has expressed its intent to preempt the regulation of firearms and to provide uniform firearms laws in the state. Any ordinance or regulation attempting to regulate firearms is stated to be null and void when enacted by jurisdictions other than the state or the federal government.[2] Relative to the discharge of firearms, section 790.15(1), Florida Statutes, states:

"Except as provided in subsection (2) or subsection (3), any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or street or whosoever knowingly discharges any firearm over the right-of-way of any paved public road, highway, or street or over any occupied premises is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. This section does not apply to a person lawfully defending life or property or performing official duties requiring the discharge of a firearm or to a person discharging a firearm on public roads or properties expressly approved for hunting by the Fish and Wildlife Conservation Commission or Division of Forestry."

Thus, in addition to expressly preempting the field of firearm regulation to the state, the Legislature has enacted legislation making it a crime to discharge firearms in any public place, with specified exceptions. It is well settled that absent a general law stating otherwise, local governments have no authority to regulate firearms in any manner.[3] Attempts to circumvent this preemption of firearm regulation have not been allowed.[4] Thus, despite the county’s concerns for the health, safety and welfare of its citizens, it may not enact an ordinance regulating the use of firearms.[5]

Accordingly, it is my opinion that a county ordinance prohibiting the discharge of a firearm in proximity to persons or property when such discharge endangers the health, welfare, and safety of the citizens of such county would be preempted by section 790.33, Florida Statutes.

Sincerely,

Charlie Crist
Attorney General
 

BrianB

Regular Member
Joined
Apr 27, 2011
Messages
223
Location
Florida
Although the posting of the AG opinion above should settle the matter once and for all as to whether or not Florida's preemption law preempts local ordinances concerning the discharge of a firearm, it seems there is one loose end to tidy up.

I have the sense from the reading I've done on these forums that WalkingWolf is a LEO. He makes a determined (but in my opinion, flawed) assertion that Florida's preemption does not cover discharge of a firearm because of the way the preemption is worded:

F.S. 790.33(1):
[...]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[...]

His argument is that even though the legislature declared that it is "occupying the whole field of regulation of firearms and ammunition" [emphasis added] the subsequent phrase "[...]including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof[...]" actually serves to limit the scope of the preemption.

The "loose end" is "why is WalkingWolf's interpretation flawed"? If we just let the AG opinion settle the matter, then we've given a man a fish, but we've not taught him to fish. This is especially important if WalkingWolf is a LEO. Even though LE is part of the Executive branch (who executes the law), and not part of the Judicial branch (who interprets it), obviously the Executive must do some interpretation so they can decide exactly what it is that they are enforcing. Therefore, in my opinion, it is important that LE be aware of the rules of statutory construction so they read them correctly - lest they end up falsely arresting someone for a crime that actually isn't. There is a good wikipedia article on statutory construction that saves a lot of reading of law books.

As one would expect, there are quite a few rules of statutory constructin/interpretation. The one most relevant here is "expressio unius est exclusio alterius" ("the express mention of one thing excludes all others").
Items not on the list are impliedly assumed not to be covered by the statute or a contract term. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as."

The first sentence seems to support WalkingWolf's position that the fact that "discharging" is not in the list means the legislature does not intend discharging to be preempted. But the second sentence clears up the matter as it relates to this statute. When the legislature says "whole" it means "whole". When it says "including" it is merely giving examples of some of the things that are part of "whole" lest anyone quibble about whether "manufacture" is part of the "field of regulation of firearms" for example. If the legislature instead had said "[...]the Legislature hereby declares that it is occupying regulation of firearms and ammunition governing the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof[...]", then "expressio unius est exclusio alterius" would have the meaning WalkingWolf suggests - anything not listed is not covered - but that's not how it reads.

The statutory construction Wiki is a good read. I'd highly recommend it to all who like to read and understand the law for themselves.

P.S. I am not an attorney and this is not legal advice. :)
 
Last edited:

notalawyer

Regular Member
Joined
Jun 19, 2012
Messages
1,061
Location
Florida
Although the posting of the AG opinion above should settle the matter once and for all as to whether or not Florida's preemption law preempts local ordinances concerning the discharge of a firearm, it seems there is one loose end to tidy up.

I have the sense from the reading I've done on these forums that WalkingWolf is a LEO. He makes a determined (but in my opinion, flawed) assertion that Florida's preemption does not cover discharge of a firearm because of the way the preemption is worded:

{SNIP}

You've also, no doubt, noted that once WW takes a position (despite being wrong, or perhaps because of it) he'll defend that position to the death, even when presented with overwhelming facts (case law) to the contrary.
 
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