from DeSantis v. Dream DefendersToday, the Florida Supreme Court ruled in an opinion by Justice John Currier, joined by all of his colleagues except Judge Jorge Labarga:
Today, we answer certified questions from the United States Court of Appeals for the Eleventh Circuit regarding the meaning of Florida’s anti-riot law, Section 870.01(2) of the Florida Statutes (2021). Ultimately, the question is whether the law applies to people who participate in violent protests but neither participate in nor intend to assist others in engaging in violence and disorderly conduct. The answer is: No, it doesn’t….
In 2021, the Legislature passed the Violence, Riot, and Looting and Law Enforcement Protection Act, or Florida House Bill 1 (HB 1). look ch. 2021-6, § 15, Florida Laws.
If a person knowingly participates in a violent public disorder involving a gathering of three or more people with the common intention to assist each other in committing violence and disorderly conduct that results in:
(a) harm others;
(b) property damage; or
or (c) creates an imminent danger of injury to others or damage to property.
Shortly after HB 1 took effect, a group of plaintiffs (respondents here {Dream Defenders, NAACP Florida State Conference, Black Collective, Inc., Unchained Change, Inc., and Black Lives Matter Alliance Broward}) Prosecuted Governor Ron DeSantis, three Florida Sheriffs and Attorney General Ashley Moody… to prohibit them from enforcing Section 870.01(2)….
On appeal, the U.S. Court of Appeals for the Eleventh Circuit held that the core constitutional issue was the scope of the statute. While Dream defenders insist the regulation could “turn[ ] “Continuing to protest peacefully while others commit violence,” Governor and Sheriff Williams argued, “people who protest peacefully do not commit riots.”
The Eleventh Circuit concluded that “[w]Whether Florida’s riot statute is unconstitutional depends on the correct interpretation of Florida law’s new definition of ‘riot’ – a question that the Florida Supreme Court, the final arbiter of state law, has yet to resolve.
So today, it asks us:
What does the Florida Stats rule mean? § 870.01(2) provides that “knowingly participating in[ ] In a violent public disorder involving an assembly of three or more persons, assisting each other with a common intention to commit violent and disorderly conduct resulting in… [i]Causing harm to others; … [d]property damage; … or [i]Imminent danger of injury to others or damage to property”?
Florida Supreme Court majority conclusion (extensive excerpts from long opinion),
In summary: a “violent public disorder” under section 870.01(2) is a “disturbing conduct against the peace”; is conducted “in a violent and disorderly manner”; “involves an assembly of three or more persons acting with a common intention and assisting each other” Violent and disorderly conduct”; and “As a result… [i]causing harm to others,””[d]Property damage” or imminent danger…
The text of the statute answers this question. Prove that the defendant “willfully participated in[d] In a violent public disturbance,” the state must prove that the defendant was part of a “violent public disturbance,” that is, part of an “assembly of three or more people,” Act with a common intention and assist each other in violent and disruptive behavior”…
[A] A person cannot “knowingly participate” in a “violent public disorder” without “acting with the common intention of assisting others” [others] Violence and disorderly conduct.
After answering the question of Florida law over which we had jurisdiction, we returned the case to the U.S. Court of Appeals for the Eleventh Circuit.
I expect that the Eleventh Circuit will follow the statute, as its content indicates, precisely because it limits participation in violent acts.
Justice Labarga concurred with this finding, finding that the statute was ambiguous but should be read in accordance with the majority understanding due to the principle of leniency:
For the purposes of section 870.01(2), a narrow interpretation of “violent public disorder” is critical to ensure that prosecutions involving violations of the statute do not involve the peaceful, nonviolent exercise of First Amendment rights or the mere existence of or criminalizing lawful participation in an otherwise peaceful assembly or protest.
“[B]If the modifier “involving” is used, the Florida Legislature appears to intend for the riotous gathering to be a smaller component of a larger whole. “only a small part of a larger riot” then the term “violent public disorder” does not properly cover a riotous assembly and Peaceful protesters.
Without recognizing any ambiguity, the Court concluded that there is only “one best reading” of the statute that excludes “persons who participate in violent protests but neither participate in nor intend to assist others in violent protests.” Disturbing behavior.
I agree with this read, but not because it is the best read. On the contrary, since the term “violent disturbance of public order” is ambiguous, the principle of leniency requires it. look § 775.021(1), Florida Stat. (2021) (“The provisions of this Code and the offenses defined by other statutes shall be construed strictly; and when language is susceptible to different interpretations, they shall be construed in a manner most favorable to the defendant.”)….
Judge Labarga also added:
{This interpretation of “violent public disorder” will almost certainly limit the possibility of unwarranted prosecutions under section 870.01(2). However, I cannot say the same about the potential for unjustified arrests, as I fear there remains a significant risk of arresting peaceful protesters. In practical terms, consider a rally where a violent public disturbance breaks out and law enforcement is working to quell the disturbance and identify the suspect. In such fast-moving situations, innocent people may be detained so that the problem can be solved later. At a minimum, this means that those arrested will be detained until their first court appearance. An arrest can have significant consequences, such as potentially affecting career or educational pursuits. Because of these risks, peaceful protesters may well be reluctant to exercise their First Amendment freedoms of speech and assembly.
