TALLAHASSEE — A federal judge delivered a major blow to Gov. Ron DeSantis on Thursday when he temporarily blocked some authorities from enforcing a key part of the Florida’s controversial “anti-riot” bill.
The measure, HB1, was a centerpiece of DeSantis’ legislative agenda as well as his reelection bid but had been heavily criticized as a way for police to crack down on racial justice and anti-police brutality demonstrations.
The new law is being challenged in the U.S. District Court Northern District of Florida by a handful of left-leaning organizations, including the NAACP and Dream Defenders, who argue it chills their free speech and right to protest. The legislation is wide-ranging and includes increasing penalties for already illegal acts like battery committed during a “riot,” creating new felonies related to violent protests and allowing those arrested while rioting to be held without bond.
The groups specifically asked U.S. District Judge Mark Walker to temporarily block the new law’s definition of “riot” while the underlying legal challenge plays out.
In a 90-page ruling issued Thursday, Walker did just that. He said that someone of “ordinary intelligence” would be unable to clearly tell if they broke the law when attending a protest that turned violent.
“The vagueness of this definition forces would-be protesters to make a choice between declining to jointly express their views with others or risk being arrested and spending time behind bars, with the associated collateral risks to employment and financial well-being,” Walker wrote.
DeSantis’ communication director Taryn Fenske said the administration “vehemently disagree” with the decision and will appeal the temporary injunction.
“There is a difference between a peaceful protest and a riot, and Floridians do not want to see the mayhem and violence associated with riots in their communities,” she said.
The ruling represents another loss for DeSantis, who recently faced a legal setback when a local Florida judge ruled that the governor overstepped his authority when he attempted to ban student mask mandates. It also comes as critics hammer the governor over his hands-off approach to the Delta variant surge, which ravaged the state over the summer.
Under the ruling, DeSantis and three sheriffs named as defendants in the suit are prohibited from enforcing the law. But while the judge’s order applies to only to those four defendants, it “puts other sheriffs on notice” that the law may not be constitutional, said Ella Wiley, a spokesperson for the NAACP Legal Defense and Educational Fund, Inc.
“Additionally, if the law is enforced by a sheriff in another jurisdiction, there is nothing stopping plaintiffs from challenging that action on the same grounds,” Wiley said.
DeSantis and GOP legislative leaders conceived of the law in the wake of the 2020 police killing of George Floyd and the national protests that followed. It was formally filed on Jan. 6, hours after supporters of former President Donald Trump stormed the White House — an event DeSantis said at the time that he hoped would generate “even more support for my legislation.”
The proposal was muscled out of the Florida Legislature by Republican majorities over vocal Democratic opposition. Dozens of GOP state lawmakers across the country filed similar “anti-riot” measures in the wake of the 2020 racial justice demonstrations across the country.
Under the new law, a person takes part in a “riot” when someone “willfully participates in a violent public disturbance involving an assembly of three or more persons.” Walker openly expressed skepticism about the definition during a hearing last month, peppering attorneys for DeSantis with hypothetical situations, including one where he envisioned rioters storming Florida’s Capitol as they did on Jan. 6 in Washington.
“If I’m waiting for a sign that said ‘defund the police’ and folks start pushing against barriers … to try and reach, I don’t know, our state Capitol,” Walker said during the hearing. “If I’m holding the sign and egging them on, or someone could view it that way, is that not willful participation?”
Attorneys for DeSantis argued that a plain reading of the new law makes clear only those causing violence would fall under the new provisions, not bystanders who happen to be near pockets of violence that break out.
“Peaceful protest is protected,” said Nick Meros, deputy general counsel for DeSantis. “No statute must be perfectly drawn. No statute must clearly define every single word in the statute.”
Walker also excoriated evidence presented by DeSantis’ attorneys during the last month’s hearing, which consisted in part of publicly available flyers for events whose mere existence, DeSantis’ argued, was proof that the new law did not have “chilling” effect on free speech or protest.
Among them was a flyer for an event held to celebrate Junteenth, a day commemorating the end of slavery that for the first time this year was observed as a federal holiday. The event, which was called “Juneteenth Black Joy Celebration,” was held in West Palm Beach and organized by, among others, a group called Chainless Change. In the preliminary injunction, Walker seemed perplexed by the idea DeSantis would “conflate” a Juneteenth celebration with the types of riots he said his legislation was aimed to curtail.
“It should go without saying that a public gathering of Black people celebrating “Black joy” and release from bondage does not automatically equate to a protest — or something that the Governor apparently implies should be chilled by the new riot law if Plaintiff Chainless Change’s claimed injury is to be believed,” Walker wrote.
He added in the temporary injunction’s footnotes that if DeSantis believes a Juneteenth celebration is a riot, the plaintiffs may have a “well-founded” argument against the law.
“If Governor DeSantis included this particular [Juneteenth] post to imply that any gathering of Black people in a public space is a de facto protest, Plaintiffs’ concerns about the how the statute’s new definition of ‘riot’ will be enforced are indeed well-founded,” he wrote.