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Federal Judge Blocks Florida Protest Law Challenged by Activists

Sept. 9, 2021, 8:46 PM

A federal judge on Thursday temporarily blocked a Florida law aimed at clamping down on the massive demonstrations seen nationwide after the death of George Floyd last year.

Advocacy groups that challenged the law clearly showed their members “have engaged in self-censoring for fear of the challenged statute’s enforcement against them,” Chief Judge Mark Walker of the U.S. District Court for the Northern District of Florida said in an order granting a preliminary injunction.

The law’s “new definition of ‘riot’ both fails to put Floridians of ordinary intelligence on notice of what acts it criminalizes and encourages arbitrary and discriminatory enforcement, making this provision vague to the point of unconstitutionality,” Walker said.

“The statute can also be read to criminalize other expressive activity, like remaining at the scene of a protest turned violent to film the police reaction,” he said.

Definition Debated

The law protects acts of violence toward protesters, especially Black protesters, while it punishes non-violent protesters for exercising their First Amendment rights, advocacy groups the Dream Defenders, the Florida NAACP, and others said in a May 11 lawsuit.

The law is too vague, threatens to ensnare bystanders, and already has caused attendance to drop at public demonstrations, Max Gaston, an attorney for the ACLU of Florida, said in an Aug. 30 hearing on the plaintiffs’ motion for a preliminary injunction.

“Our clients are worried about being randomly arrested, held without bail, and charged with a violent felony, just for standing in the street, or maybe not just standing in the street,” Gaston said. “What if an individual, your honor, is standing on the side and taking a video of a protest where violence is happening. Is that willful participation?”

Walker narrowed the scope of the complaint in an Aug. 9 order to just the sections of the law defining a “riot,” making it a crime to block a public road, and changing when bail is made available for those arrested for unlawful assembly.

He also ordered both parties to submit sentence diagrams parsing the statute’s definition of a “riot.”

“If this subject were not clear, then almost no statute will be clear,” Nick Meros, an attorney for Gov. Ron DeSantis (R) said at the Aug. 30 hearing. “It goes beyond all reasonable doubt to understand what this statute prohibits and does not prohibit.”

In the 1950s and 1960s, Florida “anti-riot” laws were used to suppress civil rights activists, Walker wrote in his order.

“What’s past is prologue,” Walker said. “Now this Court is faced with a new definition of ‘riot'—one that the Florida Legislature created following a summer of nationwide protest for racial justice, against police violence and the murder of George Floyd and many other people of color, and in support of the powerful statement that Black lives matter.”

The injunction applies to DeSantis and three sheriffs named as defendants in the lawsuit, Walker said.

The advocacy groups applauded Walker’s ruling. “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,” they said in a joint statement.

At a news conference Thursday in New Port Richey, Fla., DeSantis said, “We will win that on appeal.”

Judge’s Criticism

A separate lawsuit calling the law unconstitutional was dismissed earlier this month by Judge Paul Byron of the U.S. District Court for the Middle District of Florida.

That complaint had been filed by Lawyers Matter Task Force, Black Lives Matter Tampa LLC, and others, against the Orange County sheriff and Florida’s governor and attorney general.

While Byron found the plaintiffs hadn’t shown an “objectively reasonable fear” that the law will be enforced against them, his ruling still criticized the Florida law.

“Indeed, it seems clear to the Court that Defendants would consider the suppression of anti-police brutality protests—violent or otherwise—a feature, not a bug,” he wrote. “Nonetheless, federal courts do not sit as super-legislatures with the power to invalidate reckless and partisan policies.”

When the governor signed the law (H.B. 1) in April, he called it “the strongest anti-rioting, pro-law enforcement piece of legislation in the country.”

The law discourages local governments from “defunding” law enforcement by giving any individual member of a municipal body or the state attorney for its judicial district the authority to challenge police budget cuts. A state commission that includes the governor has the power to amend those budget items.

Local governments also lose sovereign immunity for damage claims resulting from riots or unlawful assemblies if they interfere with “reasonable” police protection. The law increases penalties for blocking highways, toppling monuments, and committing “mob intimidation.”

Akin Gump Strauss Hauer & Feld LLP, the NAACP Legal Defense & Education Fund, the ACLU Foundation of Florida, and the Community Justice Project represent the civil rights groups in the Dream Defenders’ lawsuit.

The cases are Dream Defenders v. DeSantis, N.D. Fla., No. 4:21-cv-00191and Legacy Entertainment & Arts Foundation v. DeSantis, M.D. Fla., No. 6:21-cv-00698, 8/20/21.

To contact the reporter on this story: Jennifer Kay in Miami at jkay@bloomberglaw.com

To contact the editors responsible for this story: Tina May at tmay@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com

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