Florida S. Ct. Reads Florida Anti-Riot Statute as Narrowly Focused on Violence

From DeSantis v. Dream Defenders, decided today by the Florida Supreme Court, in an opinion by Justice John Couriel, joined by all his colleagues other than Judge Jorge Labarga:

Today we answer a certified question from the United States Court of Appeals for the Eleventh Circuit about the meaning of Florida’s law prohibiting riot, section 870.01(2), Florida Statutes (2021). At bottom, the question is whether that law applies to a person who is present at a violent protest, but neither engages in, nor intends to assist others in engaging in, violent and disorderly conduct. And the answer is: no, it does not….

In 2021, the Legislature passed the “Combatting Violence, Disorder, and Looting, and Law Enforcement Protection Act,” or Florida House Bill 1 (HB 1). See ch. 2021-6, § 15, Laws of Fla. Among other things, HB 1 amended section 870.01(2), Florida Statutes (2020), to define the crime of “riot”:

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:

(a) Injury to another person;

(b) Damage to property; or

(c) Imminent danger of injury to another person or damage to property.

Soon after HB 1 took effect, a group of plaintiffs—the appellees here {Dream Defenders, Florida State Conference of the NAACP, Black Collective Inc., Chainless Change Inc., and Black Lives Matter Alliance Broward}—sued Governor Ron DeSantis, three Florida sheriffs, and Attorney General Ashley Moody … to enjoin them from enforcing section 870.01(2)….

On appeal, the U.S. Court of Appeals for the Eleventh Circuit found that the central constitutional question was the statute’s scope. While Dream Defenders maintained the statute could “criminalize[ ] continuing to protest peacefully while others commit violence,” the Governor and Sheriff Williams argued that “a person who is peacefully protesting does not commit a riot.”

The Eleventh Circuit concluded that “[w]hether Florida’s riot statute is unconstitutional turns on the proper interpretation of the new definition of ‘riot’ under Florida law—a question the Florida Supreme Court, the final arbiter of State law, has not yet addressed.”

So today, it asks us:

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 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”?

The Florida Supreme Court majority concludes (to heavily excerpt a long opinion),

In sum: a “violent public disturbance” under section 870.01(2) is “a tumultuous disturbance of the peace”; that is carried out in “a violent and turbulent manner”; “involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct”; and “results in … [i]njury to another person,” “[d]amage to property,” or imminent danger of either….

The statute’s words answer this one. To prove a defendant “willfully participate[d] in a violent public disturbance,” the State must prove the defendant was part of the “violent public disturbance”—that is, part of the “assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct.” …

[A] person cannot “willfully participate” in a “violent public disturbance” without “acting with a common intent to assist [others] in violent and disorderly conduct.” So to be guilty of the crime of riot, one must “engage in,” or at least “intend to assist others in engaging in, violent and disorderly conduct.” …

Having answered the questions of Florida law over which we have jurisdiction, we return this case to the U.S. Court of Appeals for the Eleventh Circuit.

I expect that the Eleventh Circuit will uphold the statute, as so read, precisely because it’s limited to participating in violent action.

Justice Labarga concurred in the result, arguing the statute was ambiguous but should be read as the majority read it, because of the rule of lenity:

For purposes of section 870.01(2), a narrow interpretation of “violent public disturbance” is essential to ensure that prosecutions involving violations of the statute do not capture the peaceful, nonviolent exercise of First Amendment rights nor criminalize the mere presence at or lawful participation in an otherwise peaceful assembly or protest.

“[B]y using the modifier ‘involving,’ the Florida Legislature appears to have intended for the riotous assembly to be only a smaller component of the larger whole.” … If a larger public assembly during which violence erupts is the “violent public disturbance,” and the riotous assembly is “only a smaller component of the larger” disturbance, then the term “violent public disturbance” improperly encompasses both the riotous assembly and peaceful protestors.

Instead of acknowledging any ambiguity, this Court concludes that there is only “one best reading” of the statute, which is to exclude “a person who is present at a violent protest, but neither engages in, nor intends to assist others in engaging in, violent and disorderly conduct.”

I agree with this reading but not because it is the one best reading. Rather, because the term “violent public disturbance” is ambiguous, the rule of lenity requires it. See § 775.021(1), Fla. Stat. (2021) (“The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”)….

Justice Labarga also added:

{This interpretation of “violent public disturbance” will almost certainly limit the possibility of unwarranted prosecutions under section 870.01(2). However, I cannot say the same for the possibility of unwarranted arrests because I fear that a significant risk remains with respect to the arrest of peaceful protestors. Practically speaking, consider an assembly where a violent public disturbance erupts, and where law enforcement is working to quell the disturbance and identify suspects. In the midst of such a fluid scenario, innocent individuals may be taken into custody only for things to be sorted later. At a minimum, this means that arrested individuals will be held in custody until first appearance. An arrest can carry significant implications, such as possibly affecting professional or educational pursuits. Because of such risks, it is likely that peaceful protestors will be reluctant to exercise their First Amendment freedoms of speech and assembly.} …

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