Dream Defenders v. Governor of the State of Florida—(J. JILL PRYOR; 11th Cir.; 1/10/23). This is not a personal injury case, but it is a matter of public importance and also will set up (or foreclose) civil rights claims such as 1983 claims in Florida once decided. The opening of the opinion summarizes the 2020 civil rights protests following the death of George Floyd that eventually resulted in murder convictions and other criminal convictions for the officers involved. Florida Governor Ron DeSantis, however, characterized the related protests as disorder and tumult and promised to have a “ton of bricks rain down” on those who engaged in violent or disorderly protest. The governor urged the Florida Legislature—which complied—to pass a bill cracking down on protests. Dream Defenders and other organizations concerned with civil rights (including a Broward County Black Lives Matter organization and a Florida branch of the NAACP) brought suit, arguing that the new law is unconstitutional under the First and Fourteenth Amendments. The groups also sought a preliminary injunction to bar the law from being enforced while the constitutional challenge was pending. The Northern District of Florida agreed with the civil rights groups that the new law was unconstitutionally vague and therefore likely to chill or deter exercise of First Amendment rights, and the judge entered the preliminary injunction. The governor and the sheriff of Jacksonville appealed. The case turns on this issue: for a long time, engaging in a “riot” has been a felony under Florida law, but the term “riot” was never defined by the Legislature. Therefore, Florida courts had applied the common law definition of “riot,” which passes constitutional muster. Florida courts held that people could only be guilty of riot if they act “with a common intent to mutually assist each other in a violent manner to the terror of the people and a breach of the peace.” In the DeSantis-backed 2020 law, however, Florida’s Legislature tossed out this common law definition of riot and substituted a new statutory definition, and the courts must now decide if the new definition withstands constitutional challenge or, instead, violates the First Amendment rights of speech assembly, and to petition the government for redress of grievances. The Eleventh Circuit verified that the district court was correct in finding that Plaintiffs had standing to challenge the laws even though the governor and sheriff argued that they should not have standing in light of the fact that their members had not been charged with anything under the new law yet. The threat of prosecution was enough. But the court decided not to determine the meaning of “riot” under Florida law. The court cited precedent for the notion that federal courts should not be the first courts to interpret new state law. The court certified to the Supreme Court of Florida the following question:
- What meaning is to be given to the provision of Florida Stat. § 870.01(2) making it unlawful to “willfully participate in a violent public disturbance involving an assembly 2 of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct, resulting in . . . [i]njury to another person; . . . [d]amage to property; . . . or [i]mminent danger of injury to another person or damage to property”?
- To assist the Florida Supreme Court in answering our question, we ask the Court to consider:
- 1. What qualifies as a “violent public disturbance”? Is it something more than “three or more personsacting 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”?
- 2. What conduct is required for a person to “willfully participate in a violent public disturbance”? Can a person “willfully participate in a violent public disturbance” without personally engaging in violence and disorderly conduct or advocating for violence and disorderly conduct? If so, what level of “participat[ion]” is required?
- 3. To obtain a conviction, does the State have to prove beyond a reasonable doubt that the defendant intended to engage or assist two or more other persons in violent and disorderly conduct? If not, what must the State prove regarding intent?
- 4. May a person be guilty of the crime of riot if the person attends a protest and the protest comes to involve a violent public disturbance in which three or more people acting with a common intent to assist each other engage in violent and disorderly conduct and the violent disturbance results in injuries to another person, damage to property, or imminent danger of injury to another or damage to property, but the person did not engage in, or intend to assist others in engaging in, violent and disorderly conduct?
The court clarified that the scope of the question was only a suggestion, and it was up to Florida courts to consider anything necessary to deciding the issue. Until the court can consider the court’s response, the injunction will remain in place. No one dissented.
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC