A federal appeals court has punted the future of Gov. Ron DeSantis’ anti-riot law to the Florida Supreme Court, asking the justices in Tallahassee what the law might mean by the sort of “public disturbance” that could merit criminal penalties.
A three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Atlanta sounded sympathetic to the social-action groups that challenged the “Combatting Violence, Disorder, and Looting, and Law Enforcement Protection Act,” passed as HB 1 during the 2021 legislative session following the Black Lives Matter protests during the summer of 2020. (Which, in Florida, were largely peaceful.)
But, in an opinion by Judge Jill Pryor, the panel concluded it needed guidance about how Florida cops would enforce the law. So, Pryor asked the state’s highest court, which has the last word on interpreting state law, to render an opinion. The federal appeals court would still get to decide whether the law violates the U.S. Constitution.
“The proper interpretation of the statutory definition is a novel issue of state law that the Florida Supreme Court has yet to address. After careful consideration, we exercise our discretion to certify a question to that court to determine precisely what conduct the definition prohibits,” Pryor wrote.
“Certifying” a question means asking another court for its opinion about a legal question within its jurisdiction. It doesn’t happen every day but it’s a recognized procedural move.
“Certification in this circumstance allows us to avoid the friction that could arise if we, as a federal court, addressed the merits of the plaintiffs’ pre-enforcement constitutional challenge without first giving the Florida Supreme Court an opportunity to interpret its state’s law,” Pryor continued.
Joining her opinion were Judges Elizabeth Branch and Ed Carnes.
The law – the enforcement of which has mostly been enjoined by a U.S. District Judge Mark Walker in Tallahassee – makes it illegal to “willfully participate 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, resulting in … injury to another person; … damage to property; … or imminent danger of injury to another person or damage to property.”
The state’s highest court has turned decisively conservative since DeSantis took office in 2019 and began appointing justices who share his judicial philosophy.
Questions from the court
The appellate court asked four questions:
“What qualifies as a ‘violent public disturbance?’ Is it something more than ‘three or more persons acting with a common intent to assist each other in violent and disorderly conduct resulting in injury to another person, damage to property, or imminent danger of injury to another person or damage to property?”
“What conduct is required for a person to ‘willfully participate in a violent public disturbance?’ Can a person ‘willfully participate in a violent public disturbance’ without personally engaging in violence and disorderly conduct or advocating for violence and disorderly conduct? If so, what level of ‘participation’ is required?”
“To obtain a conviction, does the state have to prove beyond a reasonable doubt that the defendant intended to engage or assist two or more other persons in violent and disorderly conduct? If not, what must the state prove regarding intent?”
“May a person be guilty of the crime of riot if the person attends a protest and the protest comes to involve a violent public disturbance in which three or more people acting with a common intent to assist each other engage in violent and disorderly conduct and the violent disturbance results in injuries to another person, damage to property, or imminent danger of injury to another or damage to property, but the person did not engage in, or intend to assist others in engaging in, violent and disorderly conduct?”
‘Trap for the innocent’
Ruling on Sept. 9, 2021, Walker concluded that the law was too vague to give fair warning about that sort of conduct would merit prosecution.
“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.
“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.”
Groups including 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 took DeSantis personally to court – as well as a number of county sheriffs – alleging the statute has chilled their First Amendment rights.
“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.”