TALLAHASSEE, Fla. - A federal judge tangled Monday with lawyers for the state over a controversial law --- one of Gov. Ron DeSantis’ top legislative priorities --- that enhances penalties and creates new crimes in protests that turn violent.
The Dream Defenders, the Florida State Conference of the NAACP and other organizations allege in a lawsuit that the measure, approved by Republican legislators and signed by DeSantis this spring, is unconstitutionally vague, has a "chilling" effect on First Amendment rights and gives local police too much power.
Chief U.S. District Judge Mark Walker held a hearing Monday to consider the plaintiffs’ request for a preliminary injunction to block local law enforcement officials from enforcing certain portions of the law.
Plaintiffs’ lawyers argue, in part, that the measure --- known as HB 1 --- puts peaceful protesters at risk of being arrested at rallies that turn violent, even if they don’t participate in any wrongdoing.
"We’re dealing with a credible threat of enforcement of a vague and overbroad law, which has effectively paralyzed the core mission of these organizations for social impact that we represent," Matthew Gaston, a lawyer for the American Civil Liberties Union of Florida, told Walker. "We’re not talking about some vague amorphous impact. The freedom to assemble and protest strike at the heart of what our plaintiffs’ work is."
But Nicholas Meros, a deputy general counsel for DeSantis, said the plaintiffs "have shown no concrete evidence of such chilling" and thus lack "standing" to challenge the law.
"They have provided no concrete evidence of any specific protests or any specific dates on which they have canceled protests because of this act," he said.
Also, Meros argued that the plaintiffs waited too long to request a preliminary injunction in the lawsuit, which was filed on May 11, less than a month after DeSantis signed the bill into law. The motion for a preliminary injunction was filed on July 14.
But Walker grilled Meros about prior court decisions establishing that plaintiffs can seek "pre-enforcement" actions in legal challenges involving First Amendment rights.
"For pre-enforcement action in this case, they’d have to have affidavits or declarations that would say, ‘We plan on protesting in X city, and we have a reason to believe that the Proud Boys are going to show up as counter protesters and turn it violent … for them to have standing?’" Walker asked.
"To an extent, yes sir, they would. They would have to show that they were having protests on these days and they have canceled these protests because of HB 1. They would also have to show what specifically about HB 1 is actually chilling them," Meros said.
Meros argued that the plaintiffs have known about the new law since DeSantis rolled out a framework of the legislation last September. DeSantis announced the framework following widespread protests throughout the country after George Floyd, a Black man, was killed by a white Minneapolis police officer.
But an irritated Walker noted that timing is just one factor that judges consider when determining whether to block a law from being enforced.
"The standard I would be applying is you have to do it even faster and you’re more likely to lose your right to bring a claim if the most important constitutional rights are implicated? You better run not walk to the courthouse or your preliminary injunction will be untimely, but you’ve got a little bit more of a grace period and it doesn’t really matter if it’s a simple, garden-variety contract dispute? Is that your position?" the judge asked Meros.
The governor’s lawyer conceded that delay is just one element for judges to consider.
"It is not the only factor but it is a very strong factor. It is a very strong and a very, very important factor that determining how long the plaintiffs have delayed absolutely plays into it," Meros said.
The case focuses in large part on a section of the law that creates a new definition of a "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," the law says.
The law makes it a third-degree felony for anyone "found guilty of a riot, or inciting or encouraging a riot." People arrested for violations of the anti-rioting provision must be held without bail until their first appearance before a judge.
Last week, Walker ordered attorneys in the case to diagram wording in the part of the law that is under scrutiny, writing in an order that "the primary issue in this case is the language and syntax" of that portion.
Gaston pointed to the grammar exercise Monday to demonstrate that the law is so vague that ordinary people have no way of knowing what it means.
"We’ve come so far down the rabbit hole with sentence diagrams and construction canons and color-coded charts with concentric circles, but we’re still disagreeing on the meaning of this one sentence," the ACLU lawyer argued.
But Meros disagreed.
"First off, we want to make clear that any sense of vagueness or any sense of lack of clarity in the text of the statute is not a reasonable interpretation," he said. "A reasonable reading of the statute is clear … and does not allow for any kind of arbitrary or discriminatory enforcement."
Meros emphasized that law specifies that the section under scrutiny "does not prohibit constitutionally protected activity such as a peaceful protest."
But Gaston argued that, although some protests have continued, some plaintiffs have discontinued their work and others have canceled events because they are afraid that organizers or participants could face arrest.
"The practical application, your honor, is that a person could be arrested, held without bail and charged with a felony punishable by up to five and in some cases 15 years in prison, from merely standing at an otherwise peaceful demonstration if violence occurs among other individuals resulting in actual or imminent injury," Gaston said, adding that the law "gives the law enforcement officer authority to decide what constitutes a violent public disturbance."
"And what that means … is that the law enforcement officer holds all the cards and decides for himself what is and is not peaceful," he said.