ATLANTA (CN) — A 11th Circuit panel Monday gave Florida the green light to enforce an amended law criminalizing rioting, ruling it does not target peaceful protest activity.
“The Florida Supreme Court has now confirmed that the riot statute does not attach to peaceful conduct. A protestor cannot be prosecuted under the riot statute if she is merely found within or alongside a group that turns violent or engages in violence,” U.S. Circuit Judge Jill Pryor, a Barack Obama appointee, wrote in the opinion.
Joined by U.S. Circuit Judge Elizabeth Branch, a Donald Trump appointee, and Senior U.S. Circuit Judge Edward Carnes, a George H.W. Bush appointee, Pryor wrote that the law requires the state to prove that the protester acted with violence or intended to assist another’s violence to be criminally liable under the statute.
“Mere attendance at a violent protest is not enough. At the very least, a person must intend to assist others’ violence within a violent public disturbance,” Pryor wrote.
The panel’s decision comes after the appellate court asked the Florida Supreme Court to provide an interpretation of the Combatting Violence, Disorder, and Looting, and Law Enforcement Protection Act, which the state passed in response to protests that erupted following the police killing of George Floyd in 2020.
The state’s high court said that a “peaceful protestor, under the most natural reading of the statute, is no rioter.” They determined that the law is not ambiguous, as argued by several civil rights organizations that regularly organized peaceful protests for racial justice, including Dream Defenders and the Florida State Conference of NAACP.
In their lawsuit, those groups argued the law was overbroad and infringed on their ability to exercise their First Amendment rights. They expressed fear that peaceful protesters could be prosecuted under the statute if violence erupted around them and they continued to protest, assisted those who were injured, or filmed the events.
“The touchstone of liability under the riot statute is violence. This violence may not be incidental; it must be intentional. And ‘[t]he First Amendment does not protect violence,'” Pryor wrote.
Pushed by Florida’s Republican Governor Ron DeSantis, the law allowed authorities to detain arrested protesters until a first court appearance and established new felonies for its amended definition of the crime of rioting.
Under the new statute, a person is guilty of rioting when they willfully participate “in a violent public disturbance involving an assembly of three or more persons” who are “acting 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.”
In Monday’s ruling, the federal appeals court judges said that a lower court abused its discretion in granting the plaintiffs’ request for a preliminary injunction, blocking DeSantis and three county sheriffs from enforcing the amended law.
“If the amended criminal riot statute is not impermissibly vague and does not criminalize peaceful protest activity, then the plaintiffs cannot show a likelihood of success on the merits of their claims under the four part standard we apply in reviewing preliminary injunctions,” Pryor wrote.
In his September 2021 ruling, Chief U.S. District Judge Mark Walker wrote that the statute forced “would-be” protesters to choose “between declining to jointly express their views with others or risk being arrested and spending time behind bars.” The Barack Obama appointee further concluded that “the vagary of this statue empowers law enforcement officers to exercise their authority in arbitrary and discriminatory ways.”
Governor DeSantis and Jacksonville Sheriff Mike Williams appealed the ruling to the 11th Circuit, arguing that nonviolent demonstrators will not be prosecuted even if they are in close proximity to a “violent public disturbance.”
The federal appeals court panel’s ruling remands the case back to the federal district court for further proceedings.