ATLANTA (CN) — The 11th Circuit heard oral arguments Thursday over the constitutionality of an amendment to a Florida law that redefines a riot and enforces stricter penalties on those deemed rioters.
The law backed by Florida Governor Ron DeSantis, a Republican, was enacted in response to the racial justice protests against police violence that spread across the nation following the murder of George Floyd in Minneapolis in 2020.
Several civil rights groups including Dream Defenders, Black Lives Matter Alliance of Broward, Black Collective Inc., and the Florida State Conference of NAACP Branches sued over the law, known as HB 1, arguing it violates the First Amendment and the equal protection clause of the 14th Amendment by having a discriminatory purpose, namely the targeting of racial justice advocacy.
Chief U.S. District Judge Mark Walker, a Barack Obama appointee, issued a preliminary injunction in September blocking DeSantis and three county sheriffs from enforcing the amended law.
“Gov. DeSantis cannot credibly argue that this new definition of ‘riot’ was not intended to empower law enforcement officers against those who may criticize their legal authority, as he has referred to the proposed legislation that led to HB 1 as ‘the strongest anti-rioting, pro-law enforcement piece of legislation in the country,’ and referred to HB1’s critics as ‘anti-police,’” Walker wrote.
The judge added that the governor “further promised to have ‘a ton of bricks rain down on’ those who violate the law when he unveiled HB 1’s preceding proposed legislation. Through this new definition of ‘riot,’ he appears to have done just that, using a threat of selective enforcement as his rain clouds.”
DeSantis appealed to the 11th Circuit in an effort to overturn the injunction and reinstate the law.
Florida’s Deputy Solicitor General Jason Hilborn argued before the three-judge panel Thursday that the law does not prohibit peaceful protesting and only criminalizes those participating in a riot.
The judges expressed concern about the ambiguity around the term “participate.”
“I don’t think the word ‘participate’ can carry the weight you’re putting on it,” said U.S. Circuit Judge Jill Pryor, an Obama appointee.
Pryor questioned the word’s context and suggested the audience for the court’s oral arguments could still be considered participants even if they aren’t the ones giving the arguments.
“Certain lines get blurry,” said U.S. Circuit Judge Elizabeth Branch, a Donald Trump appointee, who also questioned what would happen if a protest starts off as peaceful but then 10 people begin to cause violent disruption.
U.S. Circuit Judge Edward Carnes, appointed by George H. W. Bush, also said there doesn’t seem to be a clear line between what defines peaceful and violent protests.
Carnes questioned Hilborn about the difference between the new riot definition and the common law one and asked him to give a real world example of how it’s changed anything.
“The statue changed nothing. Doesn’t that indicate to you a problem with your theory?” Carnes said after Hilborn was unable to provide an example.
Florida’s amendment states 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.”
Common law describes a riot as an act “made in furtherance of an express common purpose; through the use or threat of violence, disorder, or terror to the public; and resulting in a disturbance of the peace,” requiring the “assemblage of three or more actors.”
Hilborn was joined in defense of the law by Jacksonville city attorney Sonya Harrell, who argued that under the statue, “mere presence at a crime is not sufficient for a conviction.”
Arguing on behalf of the civil rights groups, attorney James Tysse said the statue infers the opposite and its vagueness subjects nonviolent participants in certain protests to criminal liability.
Tysse wrote in the groups’ lawsuit that the law creates mandatory minimum sentences for certain offenses and prohibits bail for those arrested, causing nonviolent protestors to remain in custody for extended periods of time.
It also prohibits the willful obstruction of traffic, which Tysse argued is broad enough to criminalize standing on the street if it even temporarily hinders traffic.
“The enactment of these overbroad and vague offenses, coupled with heightened penalties for existing ones, serves to do exactly what was intended—i.e., silence Black people and their allies who protest racial injustice,” the complaint states.
Carnes brought to Tysse’s attention that even with the injunction, the appeals court can not override the state law.
“This would still send a strong message to the prosecutors,” Tysse said.
The judges did not signal when they intend to issue a ruling.
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