Attorneys for Gov. Ron DeSantis and the Jacksonville sheriff on Wednesday told the Florida Supreme Court that innocent bystanders and peaceful protesters are not threatened by a controversial 2021 law that seeks to crack down on protests that turn violent.
“Participating in a crime means more than mere presence,” Sonya Harrell, an attorney for the Jacksonville Sheriff’s Office, said as justices tried to parse the meaning of a key part of the law championed by DeSantis after nationwide protests following the 2020 death of George Floyd, a Black man who was killed by a Minneapolis police officer.
The Supreme Court heard arguments as an outgrowth of a federal lawsuit filed by groups such as the Dream Defenders and the Florida State Conference of the NAACP alleging the law violated First Amendment rights. The civil-rights groups argued the law could lead to peaceful demonstrators facing charges when protests turn violent.
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Chief U.S. District Judge Mark Walker in 2021 issued a preliminary injunction against the law, describing it as unconstitutionally “vague and overbroad.”
The state and the Jacksonville Sheriff’s Office, which is a defendant in the case, appealed. But the 11th U.S. Circuit Court of Appeals in January requested help from the Florida Supreme Court with what it called a “novel” issue — how to determine the meaning of the word “riot” in the law.
The Supreme Court quizzed attorneys Wednesday about sentence construction and grammar in the law, but at least some justices appeared critical of Walker’s interpretation.
“Some of us are not convinced that there is ambiguity here,” Justice Charles Canady said to James Tysse, an attorney for the groups that filed the lawsuit.
At another point, Chief Justice Carlos Muniz said he thought “this whole thing is bizarre.”
But in its January ruling, a three-judge panel of the federal appeals court said it was deferring a ruling on the state’s appeal of the preliminary injunction until the Florida Supreme Court could weigh in on the definition of a riot. The somewhat unusual move is known as certifying a question to the state court.
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“The proper interpretation of the statutory definition is a novel issue of state law that the Florida Supreme Court has yet to address,” the appeals-court panel said. “After careful consideration, we exercise our discretion to certify a question to that (Supreme) Court to determine precisely what conduct the definition prohibits.”
Tysse asked justices to define a “riot” in a way that would maintain previous interpretations and ensure protection of rights of peaceful protesters.
“When the statute was enacted, my clients were understandably concerned that the law of rioting had changed to make it easier to sweep in those at protests who were simply exercising their First Amendment rights, without the intent to commit any acts of violence,” Tysse said after the arguments.
The Supreme Court typically takes months before issuing decisions.
The 2021 law says that 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 injury to another person, damage to property or imminent danger of injury to another person or damage to property.”
The appeals court said plaintiffs, for example, have argued that the law does not define what it means to participate in a violent public disturbance.
In his 90-page decision, Walker pointed to concerns about vagueness.
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“Though plaintiffs claim that they and their members fear that it (the law) will be used against them based on the color of their skin or the messages that they express, its vagueness permits those in power to weaponize its enforcement against any group who wishes to express any message that the government disapproves of,” Walker wrote. “Thus, while there may be some Floridians who welcome the chilling effect that this law has on the plaintiffs in this case, depending on who is in power, next time it could be their ox being gored.”
But Nick Meros, deputy general counsel for DeSantis, said during Tuesday’s arguments that a person would have to “willfully” participate in a violent public disturbance to be prosecuted under the law.
“A person can’t simply be present at a protest,” Meros said.
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