from the looks-like-some-old-school-racism-from-here dept
Earlier this year, the Florida state legislature passed a law that turned protesting into a crime by expanding the definition of “riot” to make peaceful protesters culpable for the actions of those actually engaged in rioting. It refused bail to those arrested at protests and the term “aggravated rioting” was expanded enough to cover any gathering of more than nine people that blocked any road.
As soon as the law went into effect, it was deployed against protesters. But only certain protesters. Those involved in Black Lives Matter/anti-police brutality protests were targeted, but Cuban solidarity protesters were not only allowed to block traffic without being arrested, they were actually allowed onto freeway access ramps by police officers.
The law was immediately challenged by a number of groups when it went into effect. The Florida NAACP, Black Lives Matter Alliance Broward, and Dream Defenders sued to have the law blocked and declared unconstitutional. Thanks to a Florida federal court, they have obtained the injunction they were seeking.
The injunction order [PDF], written by Judge Mark Walker, opens with a brief recounting of how riot laws have historically been deployed to assist the government in enforcing segregation and other racists policies.
On May 27, 1956, Wilhelmina Jakes and Carrie Patterson, two Black students from Florida Agricultural and Mechanical University in Tallahassee, boarded a local city bus. They sat in the only available seats, which were in the “whites-only” section. The two women refused to move when ordered to do so, and the bus driver called in the police. Three police cars arrived at the scene and Ms. Jakes and Ms. Patterson were arrested. Their charge—“inciting a riot.” The rest is history.
Five years after the FAMU students’ arrests, nine clergymen arrived at the Tallahassee Airport to test the state’s Jim Crow laws as part of the Freedom Rides of 1961. The clergymen were Black and White men of various faiths, including two rabbis and ordained ministers from several Protestant denominations. Over the course of about 24 hours, they repeatedly rescheduled their outbound flights in an apparent attempt to see if the Tallahassee Airport’s restaurant would serve them as a group. The clergymen had previously been “given protection against violence or other disorder from groups or individuals who resented [their] activities,” but after a day of rescheduled flights, the City had enough of their efforts “to goad the municipality and its restaurant lessee to open the restaurant,” and serve the Black and White men together. Accordingly, the city attorney approached the clergymen at the airport and proclaimed that their assembly “at the municipal Airport of Tallahassee will tend to create a disturbance or incite a riot or disorderly conduct within the City of Tallahassee at its Municipal Airport over which the city had jurisdiction.” The city attorney ordered the clergymen to disperse, but after about ninety seconds and their failure to do so, the city attorney directed the chief of police to arrest them.
While Governor Ron DeSantis and his allies in the state legislature will never admit it, this law was passed to quell protests that largely concern black people and their interests — one of which is the understandable desire to not be disproportionately targeted by police violence. The law was written as George Floyd-related protests occurred all over the nation. The fact that the new law was not deployed to arrest Cuban solidarity protesters whose actions met the new definition of “aggravated rioting,” confirmed the law would only be used to target protesters DeSantis doesn’t like.
The court says the plaintiffs have standing to sue. The order spends several pages detailing how these activist groups have curtailed their protest activity by cancelling planned events. The groups have also seen a noticeable drop in participation during the few protests they have engaged in since the law took effect, with many members of these groups stating the fear of being arrested for peaceful protesting has deterred them from attending events.
The only party to respond to the injunction request was the Governor himself. The court notes his submissions of evidence that speech isn’t being chilled (which largely consists of printouts of social media posts about upcoming protests) isn’t particularly persuasive. And one submission in particular by DeSantis all but confirms this statute was written to target black residents and protesters.
Specifically, Governor DeSantis points to a screenshot of Plaintiff Chainless Change, Inc.’s Facebook post showing a flyer for a “Juneteenth Black Joy Celebration” at Coleman Community Park in West Palm Beach on June 19, 2021. The post notes that “There will be . . . Music, Food, Games, Rental Assistance, Performers, Giveaways, Community Resources, and More,” and includes a photograph of several joyful Black children…
This Court is perplexed by the Governor’s decision to include this specific Facebook post as evidence that Plaintiffs’ speech is not actually chilled in the manner they assert in their motion. To start, this year marked the first official recognition of Juneteenth National Independence Day as a federal holiday. 5 U.S.C. § 6103(a) (2021). This Court—along with other courts across the country—was closed for the occasion. The Facebook post advertises a community celebration on a federal holiday commemorating the end of slavery in America…
Here, the Governor has conflated a community celebration of a federal holiday commemorating the end of slavery with a protest. He does so to argue that Plaintiff Chainless Change’s claimed injury of chilled speech and self-censorship is not to be believed. It should go without saying that a public gathering of Black people celebrating “Black joy” and release from bondage does not automatically equate to a protest—or something that the Governor apparently implies should be chilled by the new riot law if Plaintiff Chainless Change’s claimed injury is to be believed.
Yeah… that looks pretty bad. So does this, which follows a discussion of the plaintiffs’ assertions that they have already been targeted by police violence and intimidation during protests prior to the passage of the law.
Not one of the Defendant Sheriffs filed any evidence to dispute Plaintiffs’ version of the facts.
Governor DeSantis argued the court was getting ahead of itself by not allowing state courts to make the first call on the constitutionality of the law and/or its overbreadth. The federal court says this argument is nonsense when crucial civil rights and liberties are on the line.
Here, the chilling effect is particularly pronounced given that the law not only creates a risk of prosecution, but also subjects the person to mandatory time in custody until first appearance. § 870.01(6), Fla. Stat. Given that a vague law does not give a would-be protestor any notice about what the law criminalizes, and that the person may be punished for constitutionally protected activity given the law’s potentially overbroad scope, a reasonable person, as the declarations in this case make clear, would censor his own speech rather than risk arrest and time in jail.
As for the definition of “riot,” the court says it’s way too vague to be constitutional. It’s not that rioting can’t be clearly defined. It’s that this law has the potential to make peaceful protesters culpable for the actions of rioters in the immediate area. The court starts with this…
This Court… acknowledges the obvious up front; some conduct clearly falls within the definition’s scope. Tossing Molotov cocktails at the police station with 10 of your best friends is clearly rioting. But the Supreme Court has squarely rejected the argument that “a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp.”
Before heading on to tell the state of Florida why this law doesn’t work.
This is where things fall apart. Although both Governor DeSantis and Sheriff Williams argue that the phrase “willfully participate” is commonly understood, neither party offers an actual definition. Is it enough to stand passively near violence? What if you continue protesting when violence erupts? What if that protest merely involves standing with a sign while others fight around you? Does it depend on whether your sign expresses a message that is pro- or anti-law enforcement? What about filming the violence? What if you are in the process of leaving the disturbance and give a rioter a bottle of water to wash tear gas from their eyes?
Other phrases in the law only add to the confusion:
A “violent public disturbance” raises similar questions. Is a violent public disturbance a peaceful protest that later turns violent? Is it a protest that creates an imminent risk of violence? Do the violent actions of three people render an otherwise peaceful protest of 300 people a violent public disturbance? Does a rowdy group of Proud Boys or anarchists have veto power over peaceful protests under this definition?
A long semantic discussion follows, interrupted by some truly amazing sentence diagrams and the court drily noting the statute appears to be impervious “to any reasonable reading,” before the court brings the hammer down.
The problem for Defendants is that, although they repeatedly claim that their preferred reading is crystal clear, they never truly explain why. Simply put, Defendants argue that one can tell that the statute embraces their reading because of the way it is. And it should come as no surprise that Defendants refuse to engage meaningfully with the statute’s text. As demonstrated above, the moment one does, Defendants’ interpretation crumbles.
Defendants’ proposed interpretation strains the rules of construction, grammar, and logic beyond their breaking points, and requires this Court to ignore the plain text of the statute and blithely proclaim that “everyone knows what a riot means,” notwithstanding this new definition that the Florida Legislature enacted.
In short, Defendants’ preferred construction is neither reasonable nor readily apparent given the plain language of the statute. Instead, it reduces much of the verbiage to surplusage and invites this Court to fill in the blanks that the Florida Legislature left behind.
This part of the law is unconstitutionally vague, the court says. Therefore, the law cannot be enforced, at least under this unreasonable quasi-definition of the term “riot.” That being said, the court points out law enforcement can still arrest and prosecute rioters, listing 19 applicable criminal statutes and noting that this list of possible enforcement options does not encompass the entirety of applicable laws.
The state is appealing the injunction, of course. But the injunction remains in place while the appeals process plays out. Governor DeSantis appears to believe the vague, overly-broad law will be enforceable again when this is all over.
DeSantis said during an appearance in New Port Richey that the state will take its case to the Atlanta-based 11th U.S. Circuit Court of Appeals. The governor called the ruling by Walker a “foreordained conclusion” and has said he frequently prevails when appealing Tallahassee judges’ orders.
“I guarantee you we’ll win that on appeal,” DeSantis said.
I’d like to put some money on that. This decision cited plenty of Eleventh Circuit precedent while handing DeSantis a loss, none of which appears to favor the state government and its attempt to revive the state’s long tradition of punishing black people for pushing back against racist policies.