ATLANTA (CN) — The 11th Circuit asked the Florida Supreme Court on Tuesday to interpret the new meaning of "riot" as amended in a state law pushed by Republican Governor Ron DeSantis in response to protests that erupted following the police killing of George Floyd in 2020.
That fall, DeSantis referred to the protests as "disorder and tumult" and vowed to have "a ton of bricks rain down on" those who engaged in such conduct with new legislation enforcing harsher penalties for violent protesters.
The Florida Legislature passed the Combatting Violence, Disorder, and Looting, and Law Enforcement Protection Act the following spring, which allowed authorities to detain arrested protesters until a first court appearance and established new felonies for its amended definition of the crime of rioting.
Under the new statue, a person is guilty of rioting when one “willfully participates in a violent public disturbance involving an assembly of three or more persons” who are “acting with a common intent to assist each other in violent and disorderly conduct; resulting in injury to another person, damage to property or imminent danger of injury to another person or damage to property.”
Soon after its passage, several civil rights organizations that regularly organized peaceful protests for racial justice, including Dream Defenders and the Florida State Conference of NAACP, challenged the new definition, arguing it infringed on their ability to exercise their First Amendment rights.
A federal judge agreed, finding the new statutory definition to be vague and overbroad. Chief U.S. District Judge Mark Walker issued a preliminary injunction in September 2021 blocking DeSantis and three county sheriffs from enforcing the amended law.
Walker wrote that the statute forced "would-be" protesters to choose "between declining to jointly express their views with others or risk being arrested and spending time behind bars." The Barack Obama appointee further concluded that "the vagary of this statue empowers law enforcement officers to exercise their authority in arbitrary and discriminatory ways."
Governor DeSantis and Jacksonville Sheriff Mike Williams appealed the ruling to the 11th Circuit, arguing that nonviolent demonstrators will not be prosecuted even if they are in close proximity to a "violent public disturbance."
After hearing arguments from both sides last March, the Atlanta-based appeals court on Tuesday agreed with the district court that the groups face a "credible threat of prosecution" and sufficiently showed that their members' speech was being chilled by "self-censoring for fear of the challenged statute’s enforcement against them.”
However, given the vagueness around what is permitted under the law, the three-judge panel concluded that it should be up to Florida's highest court to clarify the law before its constitutionality can be determined.
"Whether 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." wrote U.S. Circuit Judge Jill Pryor, an Obama appointee, in Tuesday's order.
She added, "We think it appropriate to give the Florida Supreme Court the opportunity to provide an authoritative interpretation of the state law before we decide whether the law is constitutional. We therefore certify a question regarding the meaning of 'riot' in the new state law to the Florida Supreme Court."
U.S. Circuit Judges Elizabeth Branch, a Donald Trump appointee, and Edward Carnes, appointed by George H. W. Bush, joined Pryor on the appellate panel.
In addition to defining riot, the appeals court listed four questions for the Florida justices to consider: What qualifies as a “violent public disturbance”?; What conduct is required for a person to “willfully participate in a violent public disturbance," and can a person do so without personally engaging in or advocating for violence and disorderly conduct? To convict someone, does the state "have to prove beyond a reasonable doubt" that they "intended to engage or assist two or more other persons in violent and disorderly conduct?"; And can someone by found guilty if they attend a protest that "comes to involve a violent public disturbance" between three or more people, even if they did not engage in such conduct or intend to assist those who did?
Before the enactment of HB 1, Florida statutes did not specifically define riot and applied the common-law definition as being "a tumultuous disturbance of the peace by three or more persons, assembled and acting with a common intent, either in executing a lawful private enterprise in a violent and turbulent manner, to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner."
Under this definition, to convict a person of criminal rioting, the state had to prove beyond a reasonable doubt that the defendant was one of the three or more persons acting in a violent manner.
It is unclear when the Florida Supreme Court will answer the 11th Circuit's questions.
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