Appeals Court Asks Where Protesting Ends and Rioting Begins Under DeSantis-Backed Law

A protester stands before a line of Seattle police officers during a May 31, 2020, protest over the killing of George Floyd.
A protester stands before a line of Seattle police officers during a May 31, 2020, protest over the killing of George Floyd. Photo by Derek Simeone
After a federal judge blocked Florida's anti-rioting law in 2021 — finding the statute's definition of "riot" to be vague and overbroad — Gov. Ron DeSantis quickly challenged the decision and was optimistic the 11th Circuit Court of Appeals would rule in his favor.

"I guarantee you we'll win that on appeal," DeSantis told the media following Chief U.S. District Judge Mark Walker's September 2021 decision.

Yesterday, an appeals panel for the 11th Circuit revealed that it is not so certain about the legal issues at the heart of the case.

The three-judge panel is asking the Florida Supreme Court to weigh in and help map out when protesting turns into rioting under the lengthy definition provided in the law, known as the Combating Public Disorder Act. The panel decided that until some clarity is offered, it will hold off on ruling on the broader question of whether the law chills free speech and is unconstitutionally vague.

In a 28-page opinion, U.S. Circuit Judge Jill Pryor draws on a hypothetical situation in which counterprotesters show up to a rally and begin to attack peaceful protesters, while others stand by or help the injured.

"Now some protestors begin to fight the counter-protestors; others stand passively watching the violence; others continue to chant or hold signs. Someone assists a person lying unconscious on the ground; another person washes tear gas from his friend's eyes. A few people pull out their phones and record the fracas. Who has violated [the statute]?" Pryor asks.

According to the statute, 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."

Pryor was joined on the panel by Senior U.S. Circuit Judge Ed Carnes and U.S. Circuit Judge Elizabeth Branch.

She says guidance from the Florida Supreme Court would narrow the case down so the panel can better assess DeSantis' appeal.

"What conduct is required for a person to 'willfully participate in a violent public disturbance'?" Pryor asks, presenting a certified question to the state's high court. "Can a person 'willfully participate in a violent public disturbance' without personally engaging in violence and disorderly conduct or advocating for violent and disorderly conduct? If so, what level of participat[ion] is required?"

Gov. DeSantis signed Florida House Bill 1 AKA the Combating Public Disorder Act in April 2021. He framed it as a response to riots that had broken out during nationwide protests over the police killing of George Floyd. The law increases penalties for crimes committed during protests, allows those arrested during a protest to be held without bond, creates new felonies for participation in a violent protest, and lays out a definition for the word "riot." (Florida already had a statute on the books that made it a felony to engage in a riot, though that law did not define the term.)

The bill's passage was met with outcry from advocacy groups over fears it would chill free speech or infringe on people's First Amendment rights.

A month after DeSantis signed the bill into law, Dream Defenders, Black Collective, Chainless Change, Black Lives Matter Alliance Broward, and the Florida State Conference of the NAACP sued the state on the grounds that the legislation targets Black protesters and those peacefully opposing racial injustice and police brutality.

"The text, legislative history, timing, and public statements about the Act made by Florida officials all make clear that the Act was racially motivated," the lawsuit claims.

Last September, Judge Walker granted the plaintiffs a preliminary injunction in the Northern District of Florida, agreeing the law appears "vague and overbroad" and that it is likely to deter people from exercising their First Amendment rights.

"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," Walker wrote in a 90-page opinion.

DeSantis scoffed at the decision during a press conference in New Port Richey. "We will win that on appeal. I guarantee you we’ll win that on appeal... just like we won almost anything out of Tallahassee," DeSantis said. "That's just kind of the way the cookie crumbles."

The governor and Jacksonville Sheriff Mike Williams challenged the decision by appealing to the 11th Circuit, saying that the law states outright that it "does not prohibit constitutionally protected activity such as a peaceful protest."

On appeal, the plaintiffs maintained that the wording in the law left it "hopelessly unclear whether the statute criminalizes continuing to protest peacefully while others commit violence."
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Naomi Feinstein is a fellow at Miami New Times. She spent the last year in New York City getting her master’s degree at the Columbia School of Journalism. She is also a proud alum of the University of Miami.
Contact: Naomi Feinstein

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