Demonstrators gathered in Tallahassee near the Florida Capitol on May 31, 2020, to protest the police killing of George Floyd. Credit: Peter T. Reinwald
A federal judge has barred enforcement of one of Gov. Ron DeSantis signature legislative achievements this year — HB 1, his Black Lives Matter-inspired crackdown on protests —ruling that its redefinition of “riot” is vague enough to cover perfectly legal behavior.
In another major courtroom defeat for the governor, U.S. District Judge Mark Walker in Tallahassee ruled Thursday that the law’s definition of the word is so vague that people can’t understand what they’d need to do to avoid arrest if a demonstration gets out of hand.
Additionally, police would be unleashed to apply their own interpretations, chilling First Amendment rights, he said.
“Gov. DeSantis cannot credibly argue that this new definition of ‘riot’ was not intended to empower law enforcement officers against those who may criticize their legal authority, as he has referred to the proposed legislation that led to HB 1 as ‘the strongest anti-rioting, pro-law enforcement piece of legislation in the country, and referred to HB1’s critics as ‘anti-police’” Walker wrote.
“Gov. DeSantis further promised to have ‘a ton of bricks rain down on’ those who violate the law when he unveiled HB 1’s preceding proposed legislation. Through this new definition of ‘riot,’ he appears to have done just that, using a threat of selective enforcement as his rain clouds.”
Walker added that, if allowed to take effect, the statute could prove a double-edged sword.
“Though plaintiffs claim that they and their members fear that it will be used against them based on the color of their skin or the messages that they express, its vagueness permits those in power to weaponize its enforcement against any group who wishes to express any message that the government disapproves of,” he wrote.
Walker ruled that the state may not apply the law’s definition of “riot” pending appeal. But he specified that the injunction applies only to the defendants named in the case — DeSantis, Broward County Sheriff Gregory Tony, Duval Sheriff Mike Williams, and Walt McNeil of Leon County.
Those are jurisdictions in which the civil rights groups behind the lawsuit — The Dream Defenders, The Black Collective, Chainless Change, the Black Lives Matter Alliance of Broward, the Florida State Conference of the NAACP, and the Northside Coalition of Jacksonville — allege the statute has chilled their First Amendment rights.
The state will remain free to protect the public under laws that existed before the new statute was enacted, Walker said. The groups, however, would suffer significant damage to their constitutional rights absent an injunction. And the state has no authority to violate the Constitution that the courts are obliged to respect, he said.
Walker’s ruling came one day after a state trial judge sitting a few blocks away barred enforcement of DeSantis’ policy of allowing parents to opt out their children from school district mask mandates for any reason pending an appeal already before the Florida 1st District Court of Appeal.
During a news conference Thursday afternoon in New Port Richey, DeSantis essentially shrugged at the news.
“That’s a foregone conclusion in front of that court. So, we will win out on appeal, I guarantee you we will win that on appeal. Just like we’ll win the parent’s rights one on appeal, just like we won almost anything out of Tallahassee on appeal, that’s just kind of the way the cookie crumbles,” the governor said.
Florida Democrats welcomed the ruling. During impassioned debate during the regular legislative session last spring, they’d argued the governor was attempting to criminalize protest.
“Judge Walker came to the same conclusion we did back in March, that this law is vague and open to abuse,” Hillsborough County House member Fentrice Driskell said in a written statement.
“Our First Amendment rights are sacred and must be protected, but this would allow bad actors in government or law enforcement to persecute and punish people who they disagree with. It was written to score political points with their base, not to make Florida a safer or freer place to live.”
As for the plaintiff organizations, they issued a joint statement:
“H.B.1 was passed as a direct response to racial justice protests in 2020 and appears designed to target those who protest police violence. Among other concerning provisions, the law risks criminalizing peaceful protest and shields those who injure or kill protesters — for example, by ramming their vehicles into protesters — from civil penalties. As states around the country threaten to pass similar legislation, today’s decision serves as a powerful reminder that such unjust and unconstitutional efforts cannot stand.”
In promoting the legislation, DeSantis insisted it would apply to riots led by groups of any political persuasion. But the proposal arrived soon after protests against police brutality broke out across the country last summer, sometimes devolving into significant violence at the hands of protesters, counter-protesters, and police alike.
In a footnote, Walker observed:” The state of Florida was no stranger to these largely peaceful protests. In defendant DeSantis’s own words, protests following the murder of George Floyd were ‘largely peaceful.’ Moreover, the governor’s office reported that the Florida Department of Law Enforcement ‘had not received reports of widespread property damage, commercial or residential.’”
History, grammar lessons
Walker opened his 90-page ruling by recollecting Florida’s history of civil-rights protests, including the 1956 Tallahassee Bus Boycott. “What’s past is prologue,” the judge observed.
The new law includes this definition of “riot”:
“A person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct,” which results in “injury to another person … damage to property … or imminent danger of injury to another person or damage to property.”
Previously, the Florida Supreme Court had defined the term as when “three or more persons acted with a common intent to mutually assist each other in a violent manner to the terror of the people and a breach of the peace.”
Violations of the new law would bring felony penalties and DeSantis designed the measure to make it harder for accused people to bail out of jail. Anyone who hits a protester with a vehicle could claim self-defense.
The opinion includes an extensive disquisition on the statute’s grammatical construction, even reproducing sentence diagrams submitted by both sides, in which they disagreed entirely on what it means. Walker concluded that the statute is a grammatical mess that an ordinary person would have a hard time figuring out — and risk serious criminal penalties if he or she gets it wrong.
“Defendants’ proposed interpretation strains the rules of construction, grammar, and logic beyond their breaking points, and requires this court to ignore the plain text of the statute and blithely proclaim that ‘everyone knows what a riot means,’ notwithstanding this new definition that the Florida Legislature enacted. Under both separation of powers and federalism principles, this court cannot rewrite the statute to conform it to constitutional requirements,” Walker wrote.
“In short, defendants’ preferred construction is neither reasonable nor readily apparent given the plain language of the statute. Instead, it reduces much of the verbiage to surplusage and invites this court to fill in the blanks that the Florida Legislature left behind. To accept that invitation would usurp the powers of the Florida Legislature.”
The language is so confusing that someone would read it “and not be sure of its real-world consequence,” Walker wrote.
“She would not know if this law meant that she had to merely avoid sharing a common intent to assist two others in violent and disorderly conduct, or if she had to avoid participating in any public event where such violent and disorderly conduct could occur,” he continued.
“The vagueness of this definition forces would-be protesters to make a choice between declining to jointly express their views with others or risk being arrested and spending time behind bars, with the associated collateral risks to employment and financial well-being. A vague law is no law at all, and certainly neither is one that can lead to multiple opposing interpretations. That type of law is simply a trap for the innocent.”
Walker cited declarations by the plaintiffs that they have sharply curtailed their activism since the law took effect for fear the law “emboldens police to overreach … and also emboldens civilians to hit protesters with their cars.”
Those fears were based in reality, the judge said, pointing to a declaration by the leader of the police reform group Chainless Change regarding a demonstration in October outside the Broward County Sheriff’s Office HQ.
The group “was met by agitators who spit on [their] staff and made efforts to attack one of [their] members, according to the declaration. “Officers nearby took no action to remove the agitators,” but instead “harassed [their] members and set up barricades to prevent [them] from accessing areas of downtown.”
In another episode, police deployed tear gas during a May 2020 Black Lives Matter protest in Fort Lauderdale after counter demonstrators disrupted the gathering. Under the statute, that potentially could subject organizers to criminal sanctions, the judge said.
“Plaintiffs’ organizational and associational injuries, including their diversion of resources and self-censorship, are sufficiently concrete and particularized” to demonstrate that the law is causing them harm, Walker concluded.
He rejected evidence presented on DeSantis’ behalf documenting plans for a “Juneteenth Black Joy Celebration” in West Palm Beach. The suggestion was that organizers showed no fear of gathering in public.
“It should go without saying that a public gathering of Black people celebrating ‘Black joy’ and release from bondage does not automatically equate to a protest — or something that the governor apparently implies should be chilled by the new riot law,” he wrote.
Those harms are directly traceable to DeSantis, who has touted his power to call in the Florida Department of Law Enforcement and Florida Highway Patrol to police crowds and to remove sheriffs who don’t meet his standards for crowd control, Walker wrote.
He also pointed to evidence that Florida sheriffs’ deputies have responded over-zealously to demonstrations and stood by during disruptions by counter-demonstrators. None of the sheriffs named in the lawsuit refuted that evidence, he said.
“Accordingly, this court finds plaintiffs have demonstrated that defendant sheriffs’ enforcement authority causes plaintiffs to self-censor and divert resources based on their well-founded fears that [the law] will be enforced against them.”
He rejected arguments by DeSantis’ attorneys that the groups could only challenge the law after it is enforced against them.
“Decades of binding Supreme Court and Eleventh Circuit precedent has held that pre-enforcement review is available for plaintiffs in facial vagueness and overbreadth challenges in the First Amendment context,” Walker wrote.
Additionally, the governor’s lawyers argued the federal court should invoke the “abstention doctrine” — meaning defer to state courts adjudicating challenges to statutes. Walker replied that there are no pending state court challenges to the law and that the U.S. Supreme Court has given federal trial judges plenty of room to decide First Amendment cases.
“The practical effect of Gov. DeSantis’s request to abstain is that many individuals who seek to protest would stay home due to the chilling effect of a vague and overbroad statute (as evident from plaintiffs’ declarations), and those brave enough to go protest may not understand whether their actions conform to the bounds set forth by the statute and risk being arrested,” he wrote.
“What is more, even if a person who is arrested acted within constitutional bounds, he or she may have to spend time in custody before a state court dissects the statute to discern its meaning and determine whether that person was lawfully arrested,” he added.
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