Attorneys joust over anti-riot bill in federal court

Image via AP.

A federal judge will soon decide the fate of a new state law that controversially stiffens penalties against rioters and violent protesters in Florida.

Chief U.S. District Judge Mark Walker told the U.S. District Court in Tallahassee Monday a possible preliminary injunction against the law may take days. The law (HB 1) is a priority of Gov. Ron DeSantis.

“I’d rather take a little bit more time and get out the correct order as opposed to rush it out,” Walker said.

The law, among other things, creates a new, broader definition of riot. It also requires those arrested during a demonstration to stay in jail until their first appearance.

In court Monday, attorneys for the plaintiffs challenged aspects of the law including the new definition of riot as unconstitutionally vague.

Vagueness, the attorneys warned, may lend laws to arbitrary and discriminatory application by police.

“A vague law is no law at all,” said Max Gaston, a staff attorney of the ACLU of Florida, citing U.S. v Davis. “And when the Legislature puts forward a law that is vague, it’s not the job of the courts to do the Legislature’s work for them and rewrite the statute, but to treat that law as a nullity and invite the state to try again.”

Groups including the Dream Defenders, the Black Collective and the Florida State Conference of the NAACP filed the lawsuit in May.

Among other arguments, attorneys for the groups asserted the law is having a “chilling” effect on protected speech.

“Their speech is chilled because they don’t know if they will be arrested for peacefully protesting,” said Max Gaston, lawyer for the American Civil Liberties Union of Florida, which represents the lawsuit plaintiffs. “They’re afraid they will be arrested and charged with a violent felony.”

That could sweep up people who are merely in the same area as a protest that turns violent or who are involved in the event but not doing anything illegal, Gaston said.

“It can be taken to mean a lot of things to a regular police officer on his beat,” he said of the law.

Walker said some plaintiffs have reported a drop in membership and even a dip in attendance at demonstrations.

“Our clients are worried about being randomly arrested, held without bail and charged with a violent felony, just for standing in the street, or maybe not just standing in the street,” Walker said.

Walker described myriad situations in which police may enforce the law disproportionately.

Bystanders, he warned, may wrongfully be arrested due to the vagueness.

“What if an individual, Your Honor, is standing on the side and taking a video of a protest where violence is happening?” Walker asked. “Is that willful participation?”

Attorneys for DeSantis, meanwhile, said the plaintiffs needed to “bend over backward” to challenge the law’s merits.

Nick Meros, deputy general counsel for DeSantis, argued the law is clear and does not allow for “discriminatory enforcement.”

“If this subject were not clear, then almost no statute will be clear,” Meros said. “It goes beyond all reasonable doubt to understand what this statute prohibits and does not prohibit.”

They also questioned the timing of the lawsuit, noting the groups waited months to file against the law.

The delay, they suggested, proves the new law isn’t a direct threat to free speech. What’s more, demonstrations by the groups have continued despite the plaintiffs’ claims against the law, the attorneys argued.

“They knew about the policy for a long time and yet they chose to wait to file,” Meros said, later adding, “the protests by these plaintiffs and by other plaintiffs show that there’s not any imminent harm.”

Not least, attorneys for DeSantis weaponized the argument of vagueness against plaintiffs.

The lawsuit and the group’s allegations, they said, lack detail.

“They have to be specific about which dates or which particular protests they are not going to engage in,” Meros said. “They also  have to explain what is chilling them. They don’t explain anything beyond the statute is vague. They don’t explain anything about the actual definition of riot and why that is vague and why that is chilling them.”

Walker’s ruling threatens to derail DeSantis’ flagship legislation.

If Walker rules in favor of the plaintiffs, the law will be paused while it’s litigated through various levels of the court system.

Speaking Monday in Tampa, DeSantis sounded optimistic about the pending outcome.

“I’m confident we will eventually win however it shakes out,” DeSantis said. “I think that we are safer as a result of that bill.”

Though introduced on the day of the U.S. Capitol riots, DeSantis first floated the concept of an “anti-riot bill” in September after a wave summer of protests over George Floyd‘s murder.

The law allows state leaders to overrule a municipality’s decision to cut police budgets. It also intensifies penalties against the vandalism of monuments.

DeSantis in April touted the law as the strongest “anti-riot/pro-law enforcement legislation in the country.”

The law stiffens penalties for crimes committed during a riot or violent protest. It allows authorities to detain arrested protesters until a first court appearance and establishes new felonies for organizing or participating in a violent demonstration.

It also makes it a second-degree felony, punishable by up to 10 years in prison, to destroy or demolish a memorial, plaque, flag, painting, structure or other object that commemorates historical people or events.

In addition, the measure requires that local governments justify any reductions in law enforcement budgets.