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Florida Appeals Court gives OK for guns on college campuses

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On Tuesday, the First Florida District Court of Appeals ruled colleges and universities have no vested or delegated authority to regulate firearms on campus, and only the Legislature has that authority. This watershed decision is the first significant test of the preemption statute, §790.33 Florida Statutes, since it was amended in 2011 to allow for penalties to be imposed on state agencies in violation.

Plaintiffs Alexandria Lainez and Florida Carry, Inc. jointly brought suit against the University of North Florida, where Lainez is a student, and John Delaney, in his capacity as President of the university, alleging a violation of preemption by having a policy prohibiting lawful storage of firearms in vehicles on campus. Ms.Lainez, a student at UNF and a single mother, commutes to and from campus to attend classes through some of the more dangerous areas of Jacksonville. A concealed carry license holder, she regularly carries her firearms to protect herself and her young son. Because of UNF's policies however, Lainez could not carry her firearm during her commute to and from campus because the university prohibited her from storing her firearm in her vehicle while in class, threatening her with both academic sanctions and criminal prosecution. One of our original members, Ms. Lainez contacted Florida Carry for assistance, and Mr. Eric J. Friday, Esq. agreed to provide representation.

At the trial court, Mr. Friday contended that the prohibition was unlawful because §790.115 grants an exception to the general prohibition against firearms for those which are properly stored in vehicles on school property. UNF's attorney countered that it was entitled to a waiver to that exception reserved for school districts claiming it should be considered as such. The trial court ruled in the university's favor. Plaintiffs appealed to the 1st DCA, claiming the trial court erred in its decision.

Oral arguments were heard by a three judge panel earlier this year. But in an unusual move, the panel presented to and solicited comment from both counsels, three questions asking of the status of the university as a constitutionally created entity, and suggesting that this might in fact provide them authority to regulate firearms on equal footing with the Legislature. Apparently this inquiry caught the eye of other judges at the court, who voted to convene as a group of fifteen and decide the case en banc rather than leaving the decision to just the three panel judges.

The 75-page ruling of the en banc court comprises 22 pages of decision, and is followed by 53 pages of both concurring and dissenting opinions. Writing for the court, Judge L. Clayton Roberts first addressed the trial court's ruling that the university was entitled under the school district waiver to prohibit firearms in vehicles. Reiterating the plain language of the statute and pointing out the inherent differences between a school district as defined in statute and the public college or university run by the Board of Governors, he stated:

"This court is almost in full agreement that UNF does not qualify as a "school district" under section 790.115; therefore UNF does not have the authority to waive itself out of the requirements of section 790.25, which gives Lainez the right to carry a securely encased firearm in her vehicle. Where we differ is in our consideration of the constitutional issue raised by the original panel."

The dissenting judges, two of whom were on the original panel, conceded that if the case were decided purely on the statutory interpretation of FS 790.115, reversal of the trial court's decision was required. However, the dissenting judges engaged in what the majority referred to as a "tipsy coachman" analysis, which means they believed the trial court reached the correct result, but for the wrong reason. They suggested that the university, through the Board of Governors and UNF's Board of Trustees had authority under Article IX, Section 7 of the Florida Constitution. Judge Roberts and the majority disagreed, stating the Legislature's desire to occupy the entire field of regulation of firearms and ammunition was explicit and clear, and that had it wished to provide an exception for the university system, it would have as was done for the Fish and Wildlife Commission, another constitutionally created entity, to regulate firearms use in hunting activities.

Twelve of the fifteen judges joined in the decision to reverse the trial court ruling, with three dissenting. The concurring opinions were diverse in reasoning, with Judge Timothy D. Osterhaus criticizing the court for even considering the constitutional argument, to Judge Scott Makar's recounting the long history of the Legislature's support and defense of the right to keep and bear arms, and humorously suggesting that the dissent wanted to create a fourth branch of government, one with "edu-slative" powers that trump those of the Legislature!

In sum, the 12 - 3 decision affirms that universities and colleges have no authority to regulate firearms or ammunition, that power being the exclusive domain of the Legislature. Post-secondary education students are no longer under threat of arrest, and at public universities and colleges, no longer under threat of academic or administrative sanctions for having lawfully stored firearms in their vehicles while attending classes. Notwithstanding a stay pending reconsideration by the 1st DCA or an appeal to the Florida Supreme Court, the decision becomes final on December 26.

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