Florida S. Ct. Reads Florida Anti-Riot Statute as Narrowly Focused on Violence

In this, the court agrees with the Florida Attorney General and the Governor’s office, and disagrees with the challengers who are trying to get the statute struck down on First Amendment grounds.

From DeSantis v. Dream Defenders, decided today by the Florida Supreme Court, in an opinion by Justice John Couriel, joined by all his colleagues other than Judge Jorge Labarga:

Today we answer a certified question from the United States Court of Appeals for the Eleventh Circuit about the meaning of Florida's law prohibiting riot, section 870.01(2), Florida Statutes (2021). At bottom, the question is whether that law applies to a person who is present at a violent protest, but neither engages in, nor intends to assist others in engaging in, violent and disorderly conduct. And the answer is: no, it does not….

In 2021, the Legislature passed the "Combatting Violence, Disorder, and Looting, and Law Enforcement Protection Act," or Florida House Bill 1 (HB 1). See ch. 2021-6, § 15, Laws of Fla. Among other things, HB 1 amended section 870.01(2), Florida Statutes (2020), to define the crime 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, resulting in:

(a) Injury to another person;

(b) Damage to property; or

(c) Imminent danger of injury to another person or damage to property.

Soon after HB 1 took effect, a group of plaintiffs—the appellees here {Dream Defenders, Florida State Conference of the NAACP, Black Collective Inc., Chainless Change Inc., and Black Lives Matter Alliance Broward}—sued Governor Ron DeSantis, three Florida sheriffs, and Attorney General Ashley Moody … to enjoin them from enforcing section 870.01(2)….

On appeal, the U.S. Court of Appeals for the Eleventh Circuit found that the central constitutional question was the statute's scope. While Dream Defenders maintained the statute could "criminalize[ ] continuing to protest peacefully while others commit violence," the Governor and Sheriff Williams argued that "a person who is peacefully protesting does not commit a riot."

The Eleventh Circuit concluded that "[w]hether Florida's riot statute is unconstitutional turns on the proper interpretation of the new definition of 'riot' under Florida law—a question the Florida Supreme Court, the final arbiter of State law, has not yet addressed."

So today, it asks us:

What meaning is to be given to the provision of Florida Stat. § 870.01(2) making it unlawful 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 … [i]njury to another person; … [d]amage to property; … or [i]mminent danger of injury to another person or damage to property"?

The Florida Supreme Court majority concludes (to heavily excerpt a long opinion),

In sum: a "violent public disturbance" under section 870.01(2) is "a tumultuous disturbance of the peace"; that is carried out in "a violent and turbulent manner"; "involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct"; and "results in … [i]njury to another person," "[d]amage to property," or imminent danger of either….

The statute's words answer this one. To prove a defendant "willfully participate[d] in a violent public disturbance," the State must prove the defendant was part of the "violent public disturbance"—that is, part of the "assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct." …

[A] person cannot "willfully participate" in a "violent public disturbance" without "acting with a common intent to assist [others] in violent and disorderly conduct." So to be guilty of the crime of riot, one must "engage in," or at least "intend to assist others in engaging in, violent and disorderly conduct." …

Having answered the questions of Florida law over which we have jurisdiction, we return this case to the U.S. Court of Appeals for the Eleventh Circuit.

I expect that the Eleventh Circuit will uphold the statute, as so read, precisely because it's limited to participating in violent action.

Justice Labarga concurred in the result, arguing the statute was ambiguous but should be read as the majority read it, because of the rule of lenity:

For purposes of section 870.01(2), a narrow interpretation of "violent public disturbance" is essential to ensure that prosecutions involving violations of the statute do not capture the peaceful, nonviolent exercise of First Amendment rights nor criminalize the mere presence at or lawful participation in an otherwise peaceful assembly or protest.

"[B]y using the modifier 'involving,' the Florida Legislature appears to have intended for the riotous assembly to be only a smaller component of the larger whole." … If a larger public assembly during which violence erupts is the "violent public disturbance," and the riotous assembly is "only a smaller component of the larger" disturbance, then the term "violent public disturbance" improperly encompasses both the riotous assembly and peaceful protestors.

Instead of acknowledging any ambiguity, this Court concludes that there is only "one best reading" of the statute, which is to exclude "a person who is present at a violent protest, but neither engages in, nor intends to assist others in engaging in, violent and disorderly conduct."

I agree with this reading but not because it is the one best reading. Rather, because the term "violent public disturbance" is ambiguous, the rule of lenity requires it. See § 775.021(1), Fla. Stat. (2021) ("The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.")….

Justice Labarga also added:

{This interpretation of "violent public disturbance" will almost certainly limit the possibility of unwarranted prosecutions under section 870.01(2). However, I cannot say the same for the possibility of unwarranted arrests because I fear that a significant risk remains with respect to the arrest of peaceful protestors. Practically speaking, consider an assembly where a violent public disturbance erupts, and where law enforcement is working to quell the disturbance and identify suspects. In the midst of such a fluid scenario, innocent individuals may be taken into custody only for things to be sorted later. At a minimum, this means that arrested individuals will be held in custody until first appearance. An arrest can carry significant implications, such as possibly affecting professional or educational pursuits. Because of such risks, it is likely that peaceful protestors will be reluctant to exercise their First Amendment freedoms of speech and assembly.} …

Comments

[Sam Bankman-Fried]

DeSantis now can’t avoid characterizing the 1/6 event as anything other than an “insurrection”.

[Milhouse]

Huh? How does that follow? On the contrary, this decision says that it was a mostly peaceful event, and those who participated peacefully cannot be said to have participated in the violent sub-event.

[AmosArch]

Its the opposite actually. If you go by the court decision 1/6 logically wasn’t an riot/insurrection in the usual sense of the word and the vast majority weren’t rioters/insurrection is since the vast majority were ‘mostly peaceful’. I mean they already applied that logic to the far more violent blm protests and this is not going to stop them from selectively applying riot/insurrection to conservative protests but this is just another layer of in your face hypocrisy.

[Nige]

‘from selectively applying riot/insurrection to conservative protests’

Well, what you were doing was applying ‘riot’ to all BLM protests, and then after Jan 6th you added ‘insurrection’ because that’s what you guys do, these days. Your hypocrisy is whining that now this has been done to Jan 6th. It’s not, though. Nobody denies that there were protesters that didn’t riot on Jan 6th. It’s just that nobody actually gives a shit about them. The protest was dumb and worthless, and the riot part was also dumb and worthless, only with violence.

Now, maybe you just don't give a shit about the BLM protests, but you still warble about 'mostly peaceful' when that's just factual.

[Dr. Ed 2]

Sam, did you miss this whether that law applies to a person who is present at a violent protest, but neither engages in, nor intends to assist others in engaging in, violent and disorderly conduct. And the answer is: no, it does not….

If Federal law were interpreted this way, most couldn't be prosecuted.

[Longtobefree]

One option is to continue your peaceful first amendment protest a block away in the safest direction.
Hanging around a riot is like poking a bear, not a good idea.

(there seems to be a racial attribute to the lawsuit)

[Gernonen]

Ironic how it's black groups that are the ones contesting an anti-riot statute. An implicit admission that these groups do nothing but cause mayhem?

[ReaderY]

Not necessarily. It could be motivated by a concern that when there’s a disturbance, police tend to arrest nearby black people because they simply assume that, as you indicate you also believe, “these groups cause nothing but mayhem.” It would be logical for the people who believe they are most likely to be unfairly prosecuted based on sterotyped beliefs to be the ones to sue.

[Gernonen]

That's because when they are "nearby," they are nearly 100% of the time doing so to cause problems.

[Malika the Maiz]

This heat wave must be hell for you what with the robes and masks, huh?

[Brett Bellmore]

Looking back at the BLM/Antifa riots of a few years ago, they were not typically one off events, but kept happening evening after evening.

A key element of modern organized riots is that you'll have a large group of people present dressed similarly, with their faces obscured, to make it difficult to identify particular individuals. Then, while a relatively small portion of the crowd engage in unambiguous crimes, the bulk of the crowd mill about, getting in the way of the police, and providing an ocean of bodies that the guilty can vanish back into, so that they can't be specifically identified and arrested. The nominally peaceful crowd are as much a part of the violent riot as the people tasked with actual violent acts.

The reasoning here would likely clear anybody who, on the first day, could not be connected to a violent act. And that's perfectly reasonable. But on subsequent days it would still permit an inference that the person had come to attend a riot, not a protest, and was engaged in the above sort of tactics.

So, if you're at a protest in Florida, and a riot breaks out on day one, you're probably legally in the clear, but if you come back the next day for the riot, this interpretation still leaves you subject to liability.

[Sarcastr0]

A key element of modern organized riots is that you’ll have a large group of people present dressed similarly, with their faces obscured
This does not describe anything of any scale that happened in the summer of 2020.

Then, while a relatively small portion of the crowd engage in unambiguous crimes, the bulk of the crowd mill about, getting in the way of the police, and providing an ocean of bodies that the guilty can vanish back into, so that they can’t be specifically identified and arrested
So it's a massive trained and organized group organized around 'unambiguous crimes.' Any sources or just doing some fan fiction?

if you’re at a protest in Florida, and a riot breaks out on day one, you’re probably legally in the clear, but if you come back the next day for the riot, this interpretation still leaves you subject to liability.
What in the language of the OP makes you think this is the way the law would operate?

[Brett Bellmore]

"This does not describe anything of any scale that happened in the summer of 2020."

As they say, denial ain't just a river in Egypt. What I describe happened over and over.

"What in the language of the OP makes you think this is the way the law would operate?"

"[A] person cannot "willfully participate" in a "violent public disturbance" without "acting with a common intent to assist [others] in violent and disorderly conduct." So to be guilty of the crime of riot, one must "engage in," or at least "intend to assist others in engaging in, violent and disorderly conduct.""

The OP doesn't require that you actually have engaged in the violent conduct. Deliberately helping the people who do engage in it escape arrest would fall under "assist others in engaging in".

[Sarcastr0]

There were plenty of picture of both the protests and the riots and there wasn’t a uniform evident.
Closest Incan think of are the Proud Boys versus the lack bloc or whatever. Or the Bogaloo Hawaiian shirts.

Showing up twice seems to fall well short of intentionally assist or even simply intending to insist.
Knowingly is not intentionally. You need more than showing up 2 days in a row.

Note another straining at the law to make it more authoritarian from Brett, the worst libertarian.

[Brett Bellmore]

First, I'm only talking about the riots, not the protests. Last time we discussed this you tried that, too, pretending I was including the protests when I talked about the riots. I'm not.

Right, no uniform.

It's not the number of times you show up, it's showing up once you know it's a riot you're attending, and not a protest. That goes to show intent.

You can't deliberately help construct a locked room mystery without becoming as complicit as whoever pulls the trigger.

[Sarcastr0]

Previously when I distinguished between the riots and the protests you violently disagreed and accused me of covering for the riots.
I’m not the one conflating here.

[Sarcastr0]

As to your pic I said at scale. Note the narrow cropping.

Definitely not a group that could pull the organized numbers based cover for criminal acts.

You have made up a tactic and now you use it to justify criminality for showing up to a protest. You are an authoritarian.

[Brett Bellmore]

Let me see if I've got this straight: Your complaint is that, under my interpretation of the OP, the police could only go after a restricted set of people present at riots? You see this as a problem?

I'm just pointing out that the "assisting" fork of the ruling allows for going after people who weren't violent, but were 'peacefully' aiding the actual violent people in avoiding capture, and that could easily include at least some people you'd want to pretend weren't really rioters.

But it would absolutely take more than simply being present.

[Sarcastr0]

You: "you’ll have a large group of people present dressed similarly, with their faces obscured, to make it difficult to identify particular individuals. Then, while a relatively small portion of the crowd engage in unambiguous crimes, the bulk of the crowd mill about, getting in the way of the police, and providing an ocean of bodies that the guilty can vanish back into, so that they can’t be specifically identified and arrested."

Your picture portrays a group incapable of using that tactic.

[Sarcastr0]

The reason why I keep calling you authoritarian is this interpretation of the law: "So, if you’re at a protest in Florida, and a riot breaks out on day one, you’re probably legally in the clear, but if you come back the next day for the riot, this interpretation still leaves you subject to liability."

You not only misapprehend knowing for intentional mens rea, you do so such that going to a protest twice is illegal because if it got violent the first time, the second you're coming back 'for the riot.'

That is telepathy. The facts are insufficient to establish any overt act of support for the riot, nor sufficient mens rea to establish intent.

What you have is a vastly overreaching speech criminalizing plan.

You keep favoring authoritarian things. Social media regulation. Strict state control of teachers. Criminalizing protest. Mask laws. Voting for Trump.

You wear the mantle of libertarian extraordinarily poorly.

[Brett Bellmore]

The picture was to dismiss your notion that rioters never wore uniforms. Look at the 30 second mark; Is that enough people?

Seriously, if that's your complaint, you should be happy: Doesn't happen enough to worry about!

[Sarcastr0]

That's a lot of people. But what a backpeddal on your goalposts!

No sign of 'dressed similarly, with their faces obscured.'

No sign they're coordinated for your 'the bulk of the crowd mill about, getting in the way of the police, and providing an ocean of bodies that the guilty can vanish back into.'

What this looks like to me is you making up a tactic so you can justify making everyone guilty for the actions of the few if the few aren't caught.

[Nige]

'it’s showing up once you know it’s a riot you’re attending, and not a protest.'

Its a bit like stocking up on guns and ammo waiting for the Big One to go down.

[hobie]

Right?! Under Bellmore's rationale, you buy 500 rounds of ammo your prepping for target practice. You keep buying more and your prepping for Ruby Ridge.

[Nige]

‘What I describe happened over and over.’

Are you thinking of Hong Kong? Because if you compare the two sets of disturbances it’s clear exactly what rubbish you’re talking. You’re conflating the protests being organised and people avoiding surveillance by the police they were criticising with the riots, which were breakdowns in organisation, and also the cops.

[Brett Bellmore]

I'm specifically NOT confusing the protests and riots. Typically you had protests during the day, and riots at night, and after the first day or two people knew when to clear out if they didn't want to participate in a riot. If they were there during the riot, it's because they meant to be part of a riot. (But not the first day, obviously.)

I'm just saying that, if there are people trying to set fire to a building, and you stick around and get in the way of the police trying to stop them, under this ruling Florida absolutely could go after you for assisting in the violence, even though you didn't throw any Molotov cocktails yourself.

[Sarcastr0]

This is 180 from where you were last year. I'll see if I can find some posts, but I kept saying don't conflate the protests for the riots and you were calling me an apologist for the violent BLM gangs.

[Brett Bellmore]

That's right, I did, because you were conflating the riots with the protests. I kept trying to talk about the riots, and you kept pretending I was talking about the protests.

It's not a "protest" when you're trying to set fire to a building with people inside.

[Nige]

You seem to be approving of powers to arrest people who are NOT rioting, though, with a bunch of suppositions so vague and presumptive you could be a cop.

[Nige]

Peopl who were ging to riot hung around, and rioted. Well, that's certainly the same as what you said above.

'and you stick around and get in the way of the police trying to stop them'

Wow, a lot of innocent people, bystanders and reporters are going to get arrested! Woohoo!

[Dr. Ed 2]

Gaslight0: "or at least "intend to assist others in engaging in, violent and disorderly conduct." …"

[hobie]

Kinda like when rednecks show up to school board meetings. You know they be causin' some shit

[Gernonen]

Rednecks may be violent to their wives and children, but they don't generally explode into random violence against strangers the way the Africans do.

[hobie]

Can we all just agree that apart from the Japanese, all races suck?

[Michael P]

Please stop projecting your own failings onto the rest of us.

Lots of people suck. I don't see any good reason to narrow that observation to any particular race of people, nor to broaden it to all members of any race.

[Sarcastr0]

Check your sarcasm meter.

[Ed Grinberg]

I suppose by that logic ("We don't want to riot, we're just worried racist cops will unjustly arrest us based on this anti-rioting law!") they should oppose all criminal laws.
Come to think of it, they do!
"[A]n Illinois bill mandating stricter sentencing for illegal gun possession was blocked by the black caucus in Springfield in 2013, on the ground that it would have a disparate impact on blacks."
(source)

[Malika the Maiz]

"they do!"

There's a term for people who make negative generalizations about racial groups citing a single example....Filing this for the next time you scream about "anti-semitism."

[Brett Bellmore]

To be fair, gun control DID get its start in the US as an element of Jim Crow, so that's not an unreasonable expectation.

[F.D. Wolf]

Amusingly, this was a pre-enforcement challenge to a riot statute.

The plaintiffs are essentially saying, "We plan to be present at future riots, so we're concerned this statute might be used against us."

It's akin to a professional getaway driver challenging a felony murder statute before he participates in a bank robbery.

[Malika the Maiz]

From the opinion: "appellees argued they were likely to succeed on the
merits of two facial challenges to the statute: that it was vague in
violation of the Fourteenth Amendment, and overbroad in violation
of the First and Fourteenth Amendments."

Akin?

[Dr. Ed 2]

The interesting thing here is that Florida penalizes presence while Massachusetts penalizes failure to leave. See: https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter269/Section1

So it doesn't matter what (if anything) you are doing, the crime is not leaving -- except that Black protesters aren't getting arrested in Massachusetts so there is no challenge to the law used to arrest White college kids.

[ReaderY]

I am glad that “strict” overbreadth seems to be dead. Federal courts once struck down laws if creative plaintiffs’ lawyers could conceive of an application that would violate the First Amendment ,without ever consulting state authorities or courts as to what the laws might actually mean.

And plaintiffs’ lawyers could be very creative. There was a series of cases in the late 20th century in which various obscenity and sodomy laws were challenged on grounds that the term “oral intercourse” violates the First Amendment because it criminalizes simple ordinary conversation.

[TheAmazingEmu]

These feels in response to claims that peaceful protesters who happened to be at the January 6 event are being criminally charged (regardless of whether that's true). That being said, it raises some interesting First Amendment challenges to other statutes. Virginia has an Assault by Mob statute that holds responsible anyone who participates in a mob regardless of whether they engage in acts of violence. Hell, accomplice liability stems from this premise as well.

The case avoids the issue by having a narrow interpretation, but this is a legitimate issue for many state statutes.

[Dr. Ed 2]

Well, is the Massachusetts approach 269 MGL 1 constitutional -- the crime is in not leaving when told to.

[John F. Carr]

Based on the press coverage, the plaintiffs here sound like the doctors in Texas who wanted to be disciplined for performing illegal abortions.

[John F. Carr]

Quoting the decision: “The Riot Act of 1549 made it high treason for twelve or more people, ‘[with] force of [arms],’ to assemble to change the laws of the kingdom.”

[Dr. Ed 2]

The Mass SJC has said that 269 MGL 1 is essentially a British Colonial Statute

https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter269/Section1