Florida lawmakers passed a new anti-rioting bill Thursday supported by Republican Gov. Ron DeSantis despite the objections of civil rights groups, which argue the legislation can and will be abused to target and punish peaceful protesters.
A read through H.B. 1 shows that it's been designed so that supporters of the bill can insist that it's only about fighting criminal and violent riot tactics. But its critics are correct: It contains vague enough wording to allow police to abuse it to shut down protests.
Here's what's in H.B. 1:
- H.B. 1 fleshes out existing laws against blocking streets as part of protests and increases penalties for anybody who commits battery or similar violent crimes as part of a riot.
- It establishes a minimum six-month jail sentence for anybody convicted of battery against a police officer as part of a riot.
- It creates a new crime—mob intimidation—which is defined as two or more people attempting to use or threatening force "to compel or induce, or attempt to compel or induce another person to do or refrain from doing any act or to assume, abandon, or maintain a particular viewpoint against his or her will," punishable as a first-degree misdemeanor (which entails up to a year in jail and up to a $1,000 fine).
- It establishes that anybody convicted of vandalizing or destroying historic property or a memorial is committing a felony, with a possible prison sentence of up to 15 years and a fine of up to $10,000, as well as restitution orders.
- H.B. 1 further establishes a mandate that municipalities must respond to protect people and their property during a riot or any unlawful assembly. Failure to do so strips the municipality itself of civil immunity and opens it up to lawsuits for damages.
- It gives a commission in the governor's office veto power over municipalities within the state if they attempt to reduce the budget of their own police departments.
- It prohibits releasing anybody arrested for certain crimes like theft or assault during a riot until the arrested person has appeared before a magistrate.
- It separately and specifically prohibits anybody who is arrested for "unlawful assembly," which is defined as any gathering of people to "commit a breach of the peace" or any other unlawful act (not necessarily rioting), from being released until they're brought before the court.
- It creates a new crime of "cyberintimidation by publication," making it unlawful to electronically publish somebody's personal identification information with the intent to (or with the intent that a third party will) incite violence against the person, harass the person, or place "such person in reasonable fear of bodily harm." This section makes no distinction between private citizens or government workers or even elected political figures. Violating the law is a first-degree misdemeanor (up to a year in jail and up to a $1,000 fine).
- It creates an affirmative defense for anybody taken to civil court over injury, damage, or death if it is the result of a participant in the lawsuit engaging in rioting. This part of the law has been presented in the press as granting legal immunity to people who run over protesters.
There's a lot going on in this law—not all of it terrible—but there are many troubling components. There is hardly a place in America where the penalties for crimes are too small, and Florida is no exception. We don't need to increase the penalties for existing crimes just because they take place during riots.
Detaining people arrested for violent crimes or thefts during riots until they go before a judge is a measure that seems on the surface to be reasonable, but the whole justification for it seems suspect given that the bill also applies to the extremely subjective and abused crime of "unlawful assembly." This part of the bill creates an incentive for law enforcement officials to declare any sort of protest on a controversial matter (especially one that critiques their power) as "unlawful" and clean off the streets, knowing that everybody they arrest will be detained for at least the evening. Lawmakers and DeSantis insist that this is all about keeping rioters from being released to cause more trouble, but the wording of the law is much looser than that, and it will almost certainly be used to detain people overnight who are not, in fact, engaging in violent behavior.
Florida's chapter of the American Civil Liberties Union noted Thursday how the law's wording is prone to abuse: "By redefining 'rioting,' the bill grants police officers broad discretion in deciding who could be arrested and charged with a third-degree felony at a protest and fails to provide protection for people who have not engaged in any disorderly and violent conduct. In Florida, a felony charge strips people of their voting rights."
Some of the worst parts of the bill have nothing to do with rioting at all. It's absolutely absurd, and certainly a violation of separation of powers in Florida, for the governor's office to attempt to seize control of budget allocation for a municipal police department at the request of the state attorney who works the area. It's literally the executive branch attempting to seize control of the funding of executive branch activities.
The "cyberintimidation by publication" component essentially gives government officials a "heckler's veto" over the publication of critical information about them online and encouragement for public reaction by claiming it has created a "reasonable fear of bodily harm." It will most certainly be used by law enforcement officers to attempt to force censorship of images and videos of them online engaging in what people might see as violent or abusive behavior.
Maybe it's my distaste of government civil immunity talking, but the part of H.B. 1 that strips immunity when cities don't take action against riots seems defensible. Note that this doesn't guarantee that somebody will win a lawsuit when they accuse a government or its police department of not protecting them or their property from rioters. It simply allows the lawsuit to actually happen.
Similarly, the part of the law that provides a defense in civil suits involving rioters would be supportable but for the fact that the bill itself plays around with the definition of what a rioter is. The description within the bill of a rioter is somebody who "willfully participates" in a public disturbance involving people who are acting with the common intent to engage in violent conduct that threatens property or the public. It doesn't actually require that the person participate in the actual violent conduct to be classified as a rioter, just the disturbance itself.
And that's why people are worrying that this would allow a defense against civil lawsuits for running over protesters. In this scenario, it's the government deciding who to classify as a protester and as a rioter, and the vagueness is concerning. As part of the bill, the defense only needs to establish the participant was part of a riot based on a preponderance of the evidence. They don't even need to be convicted (though conviction can also be used as evidence).
DeSantis will sign the bill. He praised it in a statement: "This legislation strikes the appropriate balance of safeguarding every Floridian's constitutional right to peacefully assemble, while ensuring that those who hide behind peaceful protest to cause violence in our communities will be punished. Further, this legislation ensures that no community in the state engages in defunding of their police."
A small-government Republican, DeSantis is not.