DREAM DEFENDERS et al v. DESANTIS et al
PRELIMINARY INJUNCTION. Plaintiffs' motion for preliminary injunction, ECF No. 64 , is GRANTED in part and DENIED in part. The motion is DENIED as moot with respect to Defendant Moody. The motion is GRANTED with respect to Defendants DeSantis, McNeil, Tony, and Williams. Signed by CHIEF JUDGE MARK E WALKER on 9/9/2021. (kjw)
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
THE DREAM DEFENDERS,
Case No.: 4:21cv191-MW/MAF
RON DESANTIS, in his official
capacity as Governor of the
State of Florida, et. al.,
On May 27, 1956, Wilhelmina Jakes and Carrie Patterson, two Black students
from Florida Agricultural and Mechanical University in Tallahassee, boarded a local
city bus.1 They sat in the only available seats, which were in the “whites-only”
section. The two women refused to move when ordered to do so, and the bus driver
called in the police.2 Three police cars arrived at the scene and Ms. Jakes and Ms.
For a brief history of the Tallahassee Bus Boycott, see Sadie Uhl and Hope Evans, Black
History Month: The Story of the Tallahassee Bus Boycott, (Feb. 6, 2021 12:00 PM),
The women offered to step off the bus if their bus fares were returned, but the bus driver
refused to provide a refund. Charles Smith and Lewis M. Killian, The Tallahassee Bus Protest,
FIELD REPORTS ON DESEGREGATION IN THE SOUTH, February 1958, available at
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Patterson were arrested. Their charge—“inciting a riot.” The rest is history.3
Five years after the FAMU students’ arrests, nine clergymen arrived at the
Tallahassee Airport to test the state’s Jim Crow laws as part of the Freedom Rides
of 1961. The clergymen were Black and White men of various faiths, including two
rabbis and ordained ministers from several Protestant denominations. Over the
course of about 24 hours, they repeatedly rescheduled their outbound flights in an
apparent attempt to see if the Tallahassee Airport’s restaurant would serve them as
a group. See Dresner v. City of Tallahassee, Fla., 375 U.S. 136, 145 (1963)
(reproducing in full the opinion of the Circuit Court of the Second Judicial Circuit,
Leon County, Florida). The clergymen had previously been “given protection
against violence or other disorder from groups or individuals who resented [their]
activities,” but after a day of rescheduled flights, the City had enough of their efforts
“to goad the municipality and its restaurant lessee to open the restaurant,” and serve
the Black and White men together. Id. at 148. Accordingly, the city attorney
approached the clergymen at the airport and proclaimed that their assembly “at the
municipal Airport of Tallahassee will tend to create a disturbance or incite a riot or
Namely, events following the arrest of Ms. Jakes and Ms. Patterson led to an organized
bus boycott in Tallahassee as part of an ongoing struggle to integrate the city’s public transit
system. Now Tallahassee’s City Bus Plaza, just a block away from this Court, bears the name of
the bus boycott’s lead organizer, Reverend C.K. Steele. See Rosa Parks Marker and Reverend C.K.
Steele Statue, Visit Florida, https://www.visitflorida.com/listing/rosa-parks-marker-and-c-ksteele-statue/24245/ (last visited Sep. 9, 2021).
Case 4:21-cv-00191-MW-MAF Document 137 Filed 09/09/21 Page 3 of 90
disorderly conduct within the City of Tallahassee at its Municipal Airport over which
the city had jurisdiction.” Id. at 145. The city attorney ordered the clergymen to
disperse, but after about ninety seconds and their failure to do so, the city attorney
directed the chief of police to arrest them. Id.
In 1956 and 1961, Florida’s anti-riot laws were used to suppress activities
threatening the state’s Jim Crow status quo. However, the definition of “riot” and
“inciting a riot” were not clearly defined by Florida Statute. It was not until 1975
that the Florida Supreme Court explained that both terms, though undefined by
statute, should be construed according to their common-law definitions. See State v.
Beasley, 317 So.2d 750, 753 (Fla. 1975); see also Hutchin v. State, 290 So. 2d 35,
37 (Fla. 1974) (Ervin, J., concurring).
What’s past is prologue. 4 Now this Court is faced with a new definition of
“riot”—one that the Florida Legislature created following a summer of nationwide
protest for racial justice, against police violence and the murder of George Floyd and
many other people of color, and in support of the powerful statement that Black lives
matter.5 The question before this Court is whether the new definition is
WILLIAM SHAKESPEARE, THE TEMPEST, act 2, sc. 1. Of course, the past merely provides
context for the present; it does not necessarily predetermine the course of events, nor should it.
The state of Florida was no stranger to these largely peaceful protests. In Defendant
DeSantis’s own words, protests following the murder of George Floyd were “largely peaceful.”
Moreover, the Governor’s office reported that the Florida Department of Law Enforcement “ha[d]
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Plaintiffs have moved for a preliminary injunction to enjoin Defendants from
enforcing the new definition of riot under section 870.01(2), Florida Statutes (2021),
as amended by HB1. Plaintiffs assert this statute is impermissibly overbroad in
violation of the First Amendment 6 and unconstitutionally vague in violation of the
Due Process Clause of the Fourteenth Amendment.7
This Court held a telephonic hearing on Plaintiffs’ motion on August 30, 2021.
For the reasons set out below, Plaintiffs’ motion, ECF No. 64, is GRANTED in
part and DENIED in part.8
not received reports of widespread property damage, commercial or residential.” See News
Release, Office of Gov. Ron DeSantis, Gov. Ron DeSantis Reports That Fla. Demonstrations Have
“The First Amendment prohibits the political restriction of speech in simple but definite
terms: ‘Congress shall make no law . . . abridging the freedom of speech.’ ” Otto v. City of Boca
Raton, Fla., 981 F.3d 854, 860 (11th Cir. 2020) (quoting U.S. Const. amend. I)). “Those same
terms, and their guarantee of free speech, now apply to states and municipalities as well as to the
federal government.” Id. at 860–61 (citation omitted).
“The Fourteenth Amendment prohibits States and their components from depriving any
person of life, liberty, or property, without due process of law.” Indigo Room, Inc. v. City of Fort
Myers, 710 F.3d 1294, 1300 (11th Cir. 2013) (quoting Bankshot Billiards, Inc. v. City of Ocala,
Fla., 634 F.3d 1340, 1349 (11th Cir. 2011)). “Due process encompasses the concepts of notice and
fair warning.” Id. at 1301. “[A]t its core is the principle ‘that no man shall be held criminally
responsible for conduct which he could not reasonably understand to be proscribed.’ ” Id. “Thus,
‘vagueness arises when a statute is so unclear as to what conduct is applicable that persons of
common intelligence must necessarily guess at its meaning and differ as to its application.’ ”Id.
(quoting Mason v. Fla. Bar, 208 F.3d 952, 958 (11th Cir. 2000)).
This Court dismissed Plaintiffs’ claims against Attorney General Moody, see ECF No.
90; accordingly, Plaintiffs’ motion for preliminary injunction is DENIED as moot with respect to
Attorney General Moody.
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HB1’s new definition of “riot” sits at the core of Plaintiffs’ motion for
preliminary injunction. Prior to the Act’s passage, Florida law criminalized rioting,
“or . . . inciting or encouraging a riot.” § 870.01, Fla. Stat. (1971). Because the statute
did not define the term riot, Florida courts relied on the common-law definition of
riot. Beasley, 317 So. 2d at 752. Specifically, the Florida Supreme Court restricted
the offense of rioting to one where “three or more persons acted with a common
intent to mutually assist each other in a violent manner to the terror of the people
and a breach of the peace.” Id. at 753.
HB1’s Section 15 amended section 870.01 to, among other things, define riot.
Section 870.01(2) now provides that “[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,” which results in “injury to another person . . . damage to property . . . or
imminent danger of injury to another person or damage to property.” § 870.01(2),
Fla. Stat. (2021). Plaintiffs argue that this new definition “fails to clarify whether a
As for the remaining Defendants, this Court has considered the Plaintiffs’ motion,
memoranda in support, all of the Defendants’ responses thereto, all supplemental briefing and
supplemental authority, and all attachments and exhibits that the parties filed, in addition to the
argument this Court considered at the hearing on August 30, 2021.
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participant in a larger demonstration where violence occurs” is guilty of rioting. ECF
No. 1 ¶ 72.
As an initial matter, this Court ruled in its Order on the Motions to Dismiss,
ECF No. 90, that each of the Plaintiff Organizations have standing to pursue their
claims against the Governor and the Defendant Sheriffs challenging, among other
things, enforcement of statutes amended by HB1’s Section 15. But, as the Supreme
Court has observed, a plaintiff must establish standing “with the manner and degree
of evidence required at the successive stages of the litigation.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992). Again, Plaintiffs assert in their motion for
preliminary injunctive relief that they have standing to pursue a preliminary
injunction against these Defendants.
Article III standing requires Plaintiffs to demonstrate that they have suffered
an injury in fact. Id. at 560. But a conclusory statement that one has “concrete plans
to engage in . . . constitutionally protected activities by peacefully expressing
[protected] speech,” and may be subject to an offensive law, without more, is not
enough to show an injury in fact at the preliminary-injunction stage. LaCroix v. Lee
Cnty., Fla., 819 F. App’x 839, 842 (11th Cir. 2020). Instead, Plaintiffs must
demonstrate “an unambiguous intention at a reasonably foreseeable time to engage
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in a course of conduct arguably affected with a constitutional interest.” Id. at 842
(quoting Bloedorn v. Grube, 631 F.3d 1218, 1228 (11th Cir. 2011)). This does not
require Plaintiffs to submit a detailed accounting of all future protests. But it does
require something more than generally stating that one intends to speak in public
places in the future. For this reason, in LaCroix, the Eleventh Circuit held that a
street preacher who only “generally stated that he intends to preach in public places
in Lee County” had not demonstrated an injury to support standing. See also Elend
v. Basham, 471 F.3d 1199, 1209 (11th Cir. 2006) (noting that “[o]ther than the one
instance in November 2002,” the plaintiffs failed to give “a description of [their]
past conduct from which to infer that they might act in a similar manner in the
Here, Plaintiffs have done much more than simply state in conclusory fashion
that their speech is chilled. In support of their standing arguments, Plaintiffs have
attached declarations setting out facts regarding each organization’s mission,
members, activities, and reaction to the passage of the challenged law. See ECF Nos.
65-1, 65-2, 65-3, 65-4, 65-5, 65-6, and 65-7. Plaintiffs’ evidence shows they and
their members have suffered past injuries and their members’ speech continues to be
chilled, which supports their standing to pursue preliminary injunctive relief against
the remaining Defendants.
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Specifically, Plaintiffs’ evidence establishes, beyond mere conclusions, that
their members have engaged in self-censoring for fear of the challenged statute’s
enforcement against them. Plaintiffs’ and their members’ First Amendment rights
are chilled by section 870.01(2). The chill is evidenced by the unwillingness of their
members to turn out at protest events in the weeks following HB1’s enactment, the
fact that some of the Plaintiffs have chosen to modify their activities to mitigate any
threat of arrest at events, and the fact that at least one Plaintiff has ceased protest
activities altogether. See Pittman v. Cole, 267 F.3d 1269, 1284 (11th Cir. 2001)
(finding that plaintiffs had made sufficient showing that First Amendment rights
were chilled as evidenced by their unwillingness to engage in protected speech).
Apart from the chilling of speech, Plaintiffs, as organizations, have also shifted their
activities away from their core mission and diverted resources to different events
and operations in response to the statute’s amendment.
For example, in support of their motion, Plaintiff Dream Defenders attached
the declaration of its co-director, Rachel Gilmer. ECF No. 65-1. Ms. Gilmer states
that “[h]istorically, Dream Defenders and its members regularly organized and
participated in political actions and demonstrations focused on bringing attention to
structural inequality.” Id. ¶ 4. According to Ms. Gilmer, “[i]n 2020, Dream
Defenders observed and was engaged in political protests in rural parts of Florida
where members had never previously seen activity,” including “Palatka, Florida,
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where young people led protests and efforts to remove a confederate statue from
their city government complex and faced significant counter-protests, including
receiving threats.” Id. ¶¶ 5–6. During the summer of 2020, “Dream Defenders led
demonstrations to protest police violence . . . in 10 different counties in Florida.” Id.
¶ 7. For example, on May 31, 2020, “Dream Defenders hosted an action that resulted
in the blockage of Biscayne Boulevard in Miami, Florida.” Id. ¶ 14. Ms. Gilmer
estimates that “more than one thousand people attended that demonstration.” Id.
In addition, “Dream Defenders members have demonstrated in Tallahassee
against legislation they oppose.” ECF No. 65-1 ¶ 17. Past protests responded to
“stand your ground” legislation, “public funding for private prison[s],”
“demonstrating in support for reforms to the juvenile detention system,” and “a large
demonstration against Governor DeSantis’[s] inauguration in 2019.” Id. But
“because [HB1] became effective immediately,” Ms. Gilmer states that “Dream
Defenders feared that any protest activity around the bill would lead to its members’
unlawful arrest under Section 15.” Id. ¶ 18.
Ms. Gilmer states that “Dream Defenders fears police will be emboldened to
provoke demonstrators or to respond with extreme force or mass arrests to anyone
allegedly inciting a riot, even if they are not associated with the demonstration.” Id.
¶ 32. This is because “Dream Defenders has witnessed disproportionate reactions
from police in the past,” apparently including the arrest of over a dozen protesters in
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Tallahassee on September 5, 2020. Id. ¶ 33; see also Police Break Up Black Lives
Matter March in Tallahassee; TCAC Leaders Arrested, WFSU (September 5, 2020
7:15 PM EDT), https://news.wfsu.org/wfsu-local-news/2020-09-05/police-breakup-black-lives-matter-march-in-tallahassee; Activists renew calls for charges
against Tally19 to be dropped, WCTV (January 12, 2021 5:59 PM EST),
https://www.wctv.tv/2021/01/12/activists-renew-calls-for-charges-against-tally19to-be-dropped/. Dream Defenders has also witnessed violence against protesters in
Tallahassee, Gainesville, Tampa, and St. Petersburg, Florida, in June and September
of 2020, when individuals attempted to drive their vehicles through groups of
protesters or pulled a gun on protesters. ECF No. 65-1 ¶¶ 28–29.
Out of fear of arrest and injury at protests due to the enactment of HB1, Dream
Defenders did not schedule any events this past May 25, 2021, “a national day of
action in honor of George Floyd,” even though “Dream Defenders would normally
have planned numerous events around the state” for the occasion. Id. ¶ 21. Nor has
Dream Defenders scheduled any other “direct actions, political protests, or
demonstrations,” since HB1 was enacted—aside from a “somber vigil for George
Floyd following the verdict in the trial of Derek Chauvin” in Pensacola, Florida. Id.
¶ 22. According to Ms. Gilmer, Dream Defenders’ members “no longer want to
invite friends or family to events, out of fear for their safety,” because of HB1. Id. ¶
25. Their members’ fear of violence and arrest due to HB1’s enactment has prompted
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Dream Defenders to refrain from demonstrating against the law for now. Id. ¶ 26.
Instead, “Dream Defenders has planned numerous events around the state focused
on educating members and communities on the risks associated with political
protests and public gatherings now that HB1 has been enacted.” Id. ¶ 34. So far,
Dream Defenders has held educational events in Pinellas, Hillsborough, Broward,
and Alachua Counties. ECF No. 65-1 ¶ 34.
Plaintiffs have also provided the declaration of Valencia Gunder, a founding
board member of The Black Collective. ECF No. 65-2. “The Black Collective is a
Florida nonprofit corporation focused on promoting political participation and
economic empowerment of Black communities.” Id. ¶ 2. The Black Collective has
recently diverted its limited resources from “base-building and program
development” to focusing on educating communities about the impacts of HB1. Id.
¶¶ 9–11, 18. Specifically, The Black Collective has hired three paid canvassers and
trained multiple volunteer canvassers to engage members of the public and discuss
HB1 in Black communities in Miami-Dade, Palm Beach, Broward, Duval, and
Orange County. Id. ¶¶ 18–21. In addition, Ms. Gunder states that “The Black
Collective worries that HB1 emboldens police to overreach . . . and also emboldens
civilians to hit protestors with their cars.” Id. ¶ 25. “This has made community
members afraid to gather at demonstrations and has made The Black Collective
hesitant to call for such attendance.” Id.
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Plaintiffs also attach the declaration of Emory Marquis Mitchell, the CEO and
Founder of Chainless Change. ECF No. 65-3. Mr. Mitchell states that “Chainless
Change was established in 2018 to provide programs and services that promote selfsufficiency and public safety for those negatively impacted by the criminal legal
system.” Id. ¶ 2. The organization “provides a vast array of services to people
returning home after a period of incarceration (“Returning Citizens”) and individuals
who are involved with the criminal legal system, as well as their families.” Id. ¶ 3.
In addition, “Chainless Change regularly engages in direct actions and has led four
protests since May 2020,” id. ¶ 6, along with a “mobile protest” on April 17, 2020,
where Mr. Mitchell was “personally stopped and harassed by [police] officers,” id.
On October 21, 2020, Chainless Change protested “at the entrance of public
property, the Broward Sheriff’s Office headquarters,” where “officers approached
[the] group and threatened to arrest [its] staff and other attendees for disturbing the
peace, trespassing, and disorderly conduct.” Id. ¶ 14. At Chainless Change’s
February 1, 2021 protest, the group “was met by agitators who spit on [their] staff
and made efforts to attack one of [their] members.” ECF No. 65-3 ¶ 15. Mr. Mitchell
states that “[o]fficers nearby took no action to remove the agitators,” but instead
“harassed [their] members and set up barricades to prevent [them] from accessing
areas of downtown.” Id.
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Further, because of HB1, Chainless Change “does not know how to protect
[their] community of supporters” and “is no longer able to engage in rapid response
direct actions, similar to its last two protests.” Id. ¶ 16. Finally, “[a]s a Black man
who is a Returning Citizen and also the founder of Chainless Change,” Mr. Mitchell
has the personal, “added fear that HB1 will be disproportionately used against [him]
for the same reasons that the organization is in fear.” Id. ¶ 19.
Plaintiffs have also provided the declaration of Tifanny Burks, a “Community
Organizer for Black Lives Matter Alliance Broward (“BLMA Broward”).” ECF No.
65-4 ¶ 1. Ms. Burks states that “BLMA Broward was formed in June 2015, after a
white supremacist took the lives of nine Black parishioners in a Charleston, South
Carolina church.” Id. ¶ 2. The organization has about 30 members and its purpose
“was to bring together the efforts of several small community organizations that
were doing similar Black liberation work.” Id. According to Ms. Burks, “BLMA
Broward is known for . . . rapid direct action responses,” including a “May 31, 2020
protest and another protest on July 9, 2016 in response to the killings of Alton
Sterling and Philando Castile.” Id. ¶ 3. BLMA Broward “mobilized protests
highlighting and demanding accountability for police killings of Black and Brown
residents of Florida . . . [and] has co-organized approximately 30 protests since May
31, 2020 advocating for the defunding of police.” Id. ¶ 5. These include events on
June 19, 2020, and September 26, 2020. Id. ¶¶ 13, 15.
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BLMA Broward’s co-organized protest on May 31, 2020 in Ft. Lauderdale,
Florida, turned out about 3,000 protesters. Id. ¶ 8. According to Ms. Burks, “[t]he
demonstration was non-violent and calm, and it was coming to an end when agitators
joined the crowd,” who appeared to be “trying to cause chaos and incite a reaction
from police.” ECF No. 65-4 ¶ 9. Ultimately, “[p]olice deployed tear gas and used
physical violence on protesters.” Id. ¶ 10. BLMA Broward’s members worry that
had HB1 been the law at that time, many of their non-violent members “would be
guilty by association, even if they were attempting to leave the area when agitators
were being disruptive.” Id. ¶ 12.
BLMA Broward’s members are unsure of what actions will violate the new
law and are concerned that it affords law enforcement too much discretion to arrest
non-violent protesters or onlookers “if anything at a protest goes wrong or if
agitators make trouble.” Id. ¶ 21. Similarly, members “are concerned HB1 will be
disproportionately enforced against [their] predominantly Black supporters,” and
therefore, “BLMA Broward has stopped organizing direct actions.” Id. ¶ 22. “For
example, BLMA Broward planned a march on the one-year anniversary of its May
31, 2020 protest.” ECF No. 65-4 ¶ 23. But “due to the implementation of HB1,
BLMA Broward canceled the march and instead planned a stationary event at
Delevoe Park in Ft. Lauderdale,” which “saw a very low turnout as compared to last
year’s march.” Id.
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Plaintiffs have also provided declarations from Marie Rattigan and Devan
Vilfrard, both of the NAACP Florida State Conferences and Youth Branches of the
NAACP (“Florida NAACP”). ECF Nos. 65-5 and 65-6. Ms. Rattigan is the Second
Vice President of the Tallahassee Chapter of the Florida NAACP. ECF No. 65-5 ¶ 1.
She is likewise the “Lead Organizer” for the Dream Defenders in Tallahassee.
Id. ¶ 3. Mr. Vilfrard is the Second Vice President of the Youth & College Division
of the Florida NAACP, a rising senior at FAMU, and the President of the FAMU
University Chapter of the NAACP (“FAMU NAACP”). ECF No. 65-6 ¶¶ 1–2.
Before HB1 became law and during the summer of 2020, Ms. Rattigan
“personally engaged in and organized protest activities concerning racial justice and
policing, including sponsoring protests in Tallahassee.” ECF No. 65-5 ¶ 4. She did
so in her leadership capacities with the Florida NAACP and Dream Defenders. Id.
But since HB1 was enacted on April 19, 2021, Ms. Rattigan has chosen not to engage
in protest activities for fear that she will be “subject to criminal penalties for the
unlawful acts of others in attendance.” Id. ¶ 7. Ms. Rattigan’s fear is rooted in her
reading of HB1’s new definition of “riot,” which she believes could allow for her
arrest “simply for attending a protest where violence or disorderly conduct takes
place, even if [she] did not engage in any such conduct [herself].” Id. ¶ 8. Ms.
Rattigan is also wary of the collateral consequences that a felony conviction can
have on her life, including losing the right to vote and the right to receive financial
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assistance for her education. Id. ¶ 9. This fear prevented her from protesting what
Ms. Rattigan describes as “an incident of police brutality against an unarmed Black
man named Jacquez Kirkland in Tallahassee,” in May of 2021. ECF No. 65-5 ¶ 10.
But for the enactment of HB1, Ms. Rattigan would have protested. Id.
Mr. Vilfrard’s declaration states that the NAACP’s objectives include
educating “persons regarding their constitutional rights and [taking] all lawful action
to secure the exercise thereof.” ECF No. 65-6 ¶ 3. Accordingly, “[d]emonstrations
against racial discrimination and racial injustice are critical to the national NAACP’s
organizational mission.” Id. The FAMU NAACP is a subdivision of the Florida
NAACP, and it “maintains the same mission as the national NAACP.” Id. ¶¶ 5–6.
According to Mr. Vilfrard, “the FAMU NAACP regularly participates in
direct actions that highlight the racial injustices that Black Floridians, including
students and young people, continue to face.” Id. ¶ 6. Members of the FAMU
NAACP also “organize and attend demonstrations in their individual capacities,
such as during the racial justice protests of summer 2020.” Id. Mr. Vilfrard states
that as soon as Governor DeSantis “announced the legislative proposal that would
eventually become HB1 on September 21, 2020,” FAMU NAACP and its members
became concerned about how such legislation would impact the right to protest. ECF
No. 65-6 ¶¶ 7–8. Their concerns were based, in part, on how law enforcement
recently treated protesters in Florida, including the nineteen individuals arrested in
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Tallahassee over Labor Day weekend in September 2020. Id. ¶ 8. The FAMU
NAACP’s and its members’ concerns were also based on incidents in Florida during
the summer of 2020 when “individuals . . . threatened or harmed peaceful racial
justice protesters with a vehicle or weapon and were not charged with any crime.”
Mr. Vilfrard also notes that since HB1 was enacted, “[m]any FAMU NAACP
members have expressed confusion to [him] about what they can and cannot do
under HB1, particularly Section 15.” Id. ¶ 11. Specifically, Mr. Vilfrard states that
many members “are concerned that under Section 15, they can be arrested simply
for attending a protest where violence or disorderly conduct takes place, even if they
do not engage in any such conduct themselves.” Id. As a result, “HB1 has had a
severe chilling impact on demonstrations by FAMU NAACP members.” Id. ¶ 12.
“[M]any FAMU NAACP members have decided not to protest out of fear of being
arrested and potentially charged under this new law.” ECF No. 65-6 ¶ 12. And
“[s]everal FAMU NAACP members have expressly told [Mr. Vilfrard] that they
have decided not to protest because of this fear.” Id.
Finally, Plaintiffs attach the declaration of Ben Frazier, the founder and
President of Northside Coalition of Jacksonville. ECF No. 65-7. Mr. Frazier states
that “Northside Coalition of Jacksonville is a Florida nonprofit corporation focused
on speaking out against all forms of racial, social, and economic injustice.” Id. ¶ 2.
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“Currently, there are approximately 1,400 members, supporters, and volunteers of
Northside Coalition of Jacksonville.” Id. ¶ 3. “Members include retired teachers,
bankers, and correctional officers, among others.” Id. “Northside Coalition of
Jacksonville aims to make quality of life better for people in . . . communities [with
large Black populations] and to address all forms of racial injustice.” Id. ¶ 7.
To effect the change the organization wishes to see in its community,
Northside Coalition of Jacksonville engages with community members with “boots
on the ground.” ECF No. 65-7 ¶ 8. The Coalition has joined with other organizations
to “spearhead marches that led to thousands of community members coming out
to march in the streets,” following the murder of George Floyd. Id. ¶ 9. Since May
2020, “Northside Coalition of Jacksonville has held 25-30 rallies, marches, and press
conferences,” and has also “hosted numerous actions at County Commission and
other public board meetings.” Id. ¶ 11. However, since the enactment of HB1, Mr.
Frazier states, “the number of participants at Northside Coalition of Jacksonville’s
events has decreased by approximately 30-40 percent.” Id. ¶ 15.
The organization has hosted several events since the new definition of “riot”
went into effect, and the average turnout at those events was around 30 people,
compared to the 100 or so people who would normally attend such events in the past.
Id. In addition, Mr. Frazier states that many members have relayed their fears about
what “police or vigilantes will do to justify causing bodily harm to protesters” if they
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attend rallies, and that it has become “increasingly difficult to bring people out to
rallies.” ECF No. 65-7 ¶¶ 16–18.
Mr. Frazier asserts that his members’ fears of police and outside influence on
their events are grounded in fact—namely, the organization’s experience this past
spring when on three occasions “a known white power activist and agitator came to
a Northside Coalition of Jacksonville event.” Id. ¶ 20. Mr. Frazier also points to the
response by Sheriff Williams, which he describes as an overzealous reaction to nonviolent mass actions. ECF No. 65-7 ¶ 10. Specifically, Mr. Frazier refers to “one
instance [in late May 2020], after the formal event ended, [when] non-member
march participants continued their own protest.” Id. “Eventually, Sheriff [Williams]
called the SWAT team out for minor graffiti and a possible broken window.” Id. “At
the end of the day, officers arrested over 70 people,” and “treated many harshly.”
“To protect folks, Northside Coalition of Jacksonville has increased the
number of peacekeepers in the ranks during rallies and actions.” Id. ¶ 23. The
organization “has also sought out the help of legal observers and has asked all
members to review the organization’s non-violence protocols.” Id.
Plaintiffs’ organizational and associational injuries, including their diversion
of resources and self-censorship, are sufficiently concrete and particularized to
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support Article III standing to challenge the enforcement of Section 15’s definition
of “riot.” See Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1341 (11th Cir. 2014)
(“Under a diversion-of-resources theory, an organization has standing to sue when a
defendant’s illegal acts impair the organization’s ability to engage in its own projects
by forcing the organization to divert resources in response.”); ACLU v. Fla. Bar, 999
F.2d 1486, 1493 (11th Cir. 1993) (“[T]he alleged danger of this statute is, in large
measure one of self-censorship; a harm that can be realized without an actual
prosecution.”) (emphasis in original) (quoting Virginia v. Am. Booksellers Ass’n,
Inc., 484 U.S. 383, 393 (1988)).
Plaintiffs’ declarations color in the detailed outline established by their
Complaint. I credit the declarants’ statements regarding their organizations’
missions, core activities, and their members’ fears of protesting now that HB1 has
become law. I also credit the declarants’ statements regarding the self-censoring that
their members now engage in, the measurable drop in turnout at events that have
occurred since the passage of HB1, and the diversion of resources some Plaintiffs
have had to make to continue organizing in ways that do not involve direct actions
or large protests.
In LaCroix, the Eleventh Circuit noted that the appellant waited over a year
before moving for a preliminary injunction and that he had not shown that he would
be “imminently subject to” the challenged permitting ordinance. 819 F. App’x at
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843–44. Here, on the other hand, Plaintiffs have moved for preliminary injunctive
relief within three months of the law’s enactment. They have also demonstrated that
their members, like all Floridians, are subject to the criminal laws of the state,
including the challenged definition of “riot,” which went into effect immediately;
that their organizations’ core activities include demonstrations and protests; that they
have already been harmed through the diversion of their resources to hire canvassers
to educate members and the public about the new law and the modification of their
events from marches and protests to stationary events or no protests at all; and that
their members’ First Amendment rights have been chilled based on the demonstrably
lower turnout at events that have occurred since the law’s enactment. “Past injury
from alleged unconstitutional conduct does not in itself show a present case or
controversy regarding injunctive relief, if unaccompanied by current adverse
effects.” Lynch v. Baxley, 744 F.2d 1452, 1456 (11th Cir. 1984) (citing O’Shea v.
Littleton, 414 U.S. 488, 495–96 (1974)). But “[p]ast wrongs do constitute evidence
bearing on whether there is a real and immediate threat of repeated injury which
could be averted by the issuing of an injunction.” Id. Thus, this case is wholly
distinguishable from the scenarios in Eland, LaCroix, and related cases where the
plaintiffs’ injuries were purely conjectural.
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This Court notes Plaintiffs’ evidence is largely unchallenged,9 because of all
the Defendants, Governor DeSantis was the only one to submit evidence in response
to Plaintiffs’ declarations. See ECF No. 99-1. The evidence consists of print-outs of
event postings from the Broward, Goddsville, and Miami Dream Defenders’
Facebook pages, id. at 1–5; Chainless Change, Inc.’s Facebook page, id. at 6; and
other organizations’ event postings on Facebook, id. at 7–17. Based on these printouts, the Governor asserts “it is clear . . . that [Plaintiffs] have participated in protests,
demonstrations, or other events since the Act’s passage that they did not mention in
their declarations.” ECF No. 99 at 27. This evidence, according to the Governor,
belies their claim that they have suffered an injury-in-fact and irreparable harm. Id.
Governor DeSantis is mistaken for several reasons. First, the evidence that
pertains to the Plaintiffs in this case does not contradict Plaintiffs’ declarations or
When Plaintiffs originally filed their motion, this Court held an expedited scheduling
conference and set a briefing schedule to allow the parties sufficient time to prepare for the hearing.
This Court by no means limited the parties to declarations and written argument. Had the parties
requested to proceed with limited discovery or to present live witnesses at the hearing on Plaintiffs’
motion, this Court would have absolutely permitted it. Indeed, this Court routinely allows for
limited discovery ahead of preliminary-junction hearings and hears live witness testimony at such
hearings. See, e.g., Aderant N. Am., Inc. v. Yezovich, Case No. 4:21cv343-MW/MAF (permitting
limited discovery ahead of hearing); 21st Century Oncology, Inc. v. Moody, 402 F. Supp. 3d 1351,
1361 (N.D. Fla. 2019) (Walker, C.J.) (“During the [preliminary-injunction] hearing before this
Court, the parties presented lengthy expert testimony . . . .”); League of Women Voters of Fla. v.
Scott, 366 F. Supp. 3d 1311, 1314 (N.D. Fla. 2018) (Walker, C.J.) (describing testimony from
evidentiary hearing on motion for preliminary injunction); Hoffer v. Jones, 290 F. Supp. 3d 1292,
1294 (N.D. Fla. 2017) (Walker, J.) (order granting preliminary injunction after five-day hearing
that included testimony from expert witnesses, prison officials, and inmates). But here, none of the
parties sought limited discovery, nor did anyone ask to present live testimony at the hearing. Thus,
this Court is limited to only the evidence that Plaintiffs and Governor DeSantis have submitted.
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their asserted injuries. For example, Plaintiff BLMA Broward provided Tifanny
Burks’s declaration, ECF No. 65-4, in which she states that “BLMA Broward has
stopped organizing direct actions,” because of the challenged law. Id. ¶ 22. Ms.
Burks explains that “BLMA Broward planned a march on the one-year anniversary
of its May 31, 2020 protest,” id. ¶ 23, but “due to the implementation of HB1,
BLMA Broward canceled the march and instead planned a stationary event at
Delevoe Park in Ft. Lauderdale,” which “saw a very low turnout as compared to last
year’s march.” Id. Consistent with this evidence, the Governor attaches screenshots
of Broward Dream Defenders’ Facebook page, which promoted Plaintiff BLMA
Broward’s “Justice for George Floyd and Barry Gedeus Anniversary Protest” on
Sunday, May 30, 2021, in Delevoe Park, Ft. Lauderdale, Florida. See ECF No. 99-1
Similarly, Governor DeSantis points to event posts for various Dream
Defender groups, including the Goddsville Dream Defenders, who apparently use
the handle, “@UFDreamDefenders,” and organized a “demonstration in solidarity
with Palestine” in May of this year. See id. at 3. These posts also include a
“solidarity” with Palestine event and a “Vigil for Nakba Day and the Ongoing
Catastrophe in Palestine,” in Wynwood and Fort Lauderdale—all of which were
promoted by Miami Dream Defenders. Id. at 4–5. Of course, Ms. Gilmer’s
declaration already explained that “[r]ecent conflict in Israel and Palestine led to
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some small political demonstrations around the state,” and Dream Defenders
participated in such demonstrations, including rallies and marches in Tallahassee,
Orlando, and Gainesville. ECF No. 65-1 ¶ 23. But, Ms. Gilmer says, “[b]ecause of
HB1, Dream Defenders did not recruit people to demonstrate around these issues—
something it has historically done and would normally do during periods of
Second, the Governor attaches evidence that has nothing to do with a
purported protest. Specifically, Governor DeSantis points to a screenshot of Plaintiff
Chainless Change, Inc.’s Facebook post showing a flyer for a “Juneteenth Black Joy
Celebration” at Coleman Community Park in West Palm Beach on June 19, 2021.
ECF No. 99-1 at 6. The post notes that “There will be . . . Music, Food, Games,
Rental Assistance, Performers, Giveaways, Community Resources, and More,” and
includes a photograph of several joyful Black children. The post is reproduced for
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This Court is perplexed by the Governor’s decision to include this specific
Facebook post as evidence that Plaintiffs’ speech is not actually chilled in the manner
they assert in their motion. To start, this year marked the first official recognition of
Juneteenth National Independence Day as a federal holiday. 5 U.S.C. § 6103(a)
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(2021). This Court—along with other courts across the country—was closed for the
occasion. The Facebook post advertises a community celebration on a federal
holiday commemorating the end of slavery in America. But nothing in Mr.
Mitchell’s declaration, ECF No. 65-3, indicates that his organization’s members are
concerned about gathering in public for community celebrations of federal holidays.
Instead, Mr. Mitchell states that “Chainless Change leaders . . . understood [Section
15 of HB1] to mean that anyone who attends a protest may be arrested and held
without bond.” Id. ¶ 10. Mr. Mitchell goes on to describe past protests and fears
about discriminatory enforcement of the anti-riot law against his organization’s
members at future protests.
Here, the Governor has conflated a community celebration of a federal holiday
commemorating the end of slavery with a protest. He does so to argue that Plaintiff
Chainless Change’s claimed injury of chilled speech and self-censorship is not to be
believed. 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.10
If Governor DeSantis included this particular 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.
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Accordingly, this post is evidence of nothing other than the fact that Chainless
Change promoted a community celebration of a federal holiday.
Third, and lastly, the balance of Governor DeSantis’s evidence adds little to
the discussion about Plaintiffs’ asserted injuries because it does not pertain to these
Plaintiffs. The Governor’s decision to include flyers from groups like Black Lives
Matter: Tampa, Tampa Bay for Change, and Black Lives Matter Restoration Polk,
Inc., who are not before this Court, and for events that are not in Leon, Duval, or
Broward counties, simply does nothing to contradict Plaintiffs’ evidence or their
claimed injuries. Though it is true the event flyers include images of Black men and
women apparently engaged in peaceful protest, Plaintiffs are not before this Court
representing all Black men and women in the State of Florida. Instead, Plaintiffs
have limited their evidence to establish that (1) they and their members have engaged
in protests in Leon, Duval, and Broward Counties in the past, (2) they intend to do
so in the future or they already have engaged in demonstrations with much lower
turnout than before, and (3) the challenged law’s confusing definition of “riot” fails
to give their members sufficient notice of what is prohibited or when they could be
subject to arrest, such that their members do not wish to participate in future protests
or have ceased organizing protests altogether. For these reasons, I find Plaintiffs
have suffered both organizational and associational injuries-in-fact for Article III
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Next, I conclude that Plaintiffs’ injuries are fairly traceable to the Governor
and Defendant Sheriffs for the same reasons discussed in this Court’s Order on the
Motions to Dismiss, which I incorporate by reference here.11 ECF No. 90. Namely,
as to enforcing section 870.01(2), Florida law specifically gives Governor DeSantis
the power to order sheriffs to suppress riots and unlawful assemblies and to take
direct command of the Florida Highway Patrol to do the same. Indeed, Governor
DeSantis has used this power in the past. See ECF No. 1 ¶ 37 n.2 (citing June 2, 2020
statement from Governor DeSantis that he is mobilizing “more than 1,300 sworn
FHP troopers to support local law enforcement efforts.”). In addition, Governor
DeSantis has the power under Florida law to suspend sheriffs who decline to obey
his directives to suppress riots. Fla. Const. Art. IV, § 7(a) (stating the governor may
suspend “any county officer” for “malfeasance, misfeasance, neglect of duty,
drunkenness, incompetence, permanent inability to perform official duties, or
commission of a felony”). Finally, Florida law also gives Governor DeSantis the
power to order the Florida Department of Law Enforcement to investigate sheriffs
before the Governor suspends them. § 943.03, Fla. Stat. Accordingly, Florida law
specifically empowers Governor DeSantis to enforce section 870.01(2), beyond any
This Court must consider standing anew at every stage in the proceeding. This motion
presents a new standing inquiry in light of the new evidence submitted in support of and opposition
to Plaintiffs’ motion. While I have considered standing anew based on this new evidence, I
incorporate by reference the legal analysis regarding traceability from my 72-page order on the
motions to dismiss. See ECF No. 90. It makes no sense to cut and paste that order here, as the legal
analysis does not change.
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mere general supervisory authority as the Chief Executive of Florida. Cf. Jacobson
v. Fla. Sec’y of State, 974 F.3d 1236 (11th Cir. 2020); see also Reprod. Health Servs.
v. Strange, 3 F.4th 1240, 1252 (11th Cir. 2021) (explaining that “[t]he plaintiffs’
injuries are traceable to the Attorney General and the District Attorney” because
“[t]he Act contemplates enforcement by the Attorney General and the District
As to the Defendant Sheriffs, they are responsible for, among other things,
maintaining the peace, arresting those who disturb the peace, and suppressing “riots”
and “unlawful assemblies.” See, e.g., § 30.15(1)(f), Fla. Stat. (“Sheriffs, in their
respective counties . . . shall . . . [s]uppress tumults, riots, and unlawful assemblies
in their counties with force and strong hand when necessary.”); § 30.15(1)(g), Fla.
Stat. (“Sheriffs, in their respective counties . . . shall . . . [a]pprehend, without
warrant, any person disturbing the peace, and carry that person before the proper
judicial officer, that further proceedings may be had against him or her according to
law.”); § 870.04, Fla. Stat. (specifying officers to “disperse riotous assembl[ies],”
and stating that “the sheriff or the sheriff’s deputies . . . shall in the name of the state
command all the persons so assembled immediately and peaceably to disperse,” and
Because Governor DeSantis has the power to enforce section 870.01(2), he has “some
connection” with the law’s enforcement and is a proper party under Ex parte Young. See Osterback
v. Scott, 782 F. App’x 856, 858–59 (11th Cir. 2019).
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authorizing the sheriff to arrest any person who does not “immediately and
In addition, Plaintiffs’ declarations set out evidence that their members and
others present at protest events over the past year have been subject to allegedly
discriminatory enforcement activities within the jurisdiction of each Defendant
Sheriff. See, e.g., ECF No. 65-4 ¶ 28 (describing event where “a white supremacist
counter protester . . . attacked a protester by kicking and spitting on them,” but
“[e]ven though the incident was witnessed by police officers, nothing was done until
protesters chased the counter protestor and demanded that police officers arrest
him”); ECF No. 65-6 ¶ 8 (describing arrest of nineteen protesters in Tallahassee in
September 2020); ECF No. 65-1 ¶ 33 (describing the same event on September 5,
2020, when nineteen protesters were arrested in Tallahassee); ECF No. 65-7 ¶ 10
(describing event where “Sheriff Mike Williams react[e]d overzealously to . . . nonviolent mass actions,” in May 2020); ECF No. 65-3 ¶ 13 (describing early protests
in Broward County where “police officers regularly threatened to arrest us for
obstructing traffic,” and noting that the declarant had personally been “stopped and
harassed by officers during a mobile protest,” on April 17, 2020); id. ¶ 14 (describing
October 2020 protest at the Broward Sheriff’s Office headquarters where “officers
approached [protesters] and threatened to arrest [their] staff and other attendees for
disturbing the peace, trespassing, and disorderly conduct,” in an apparent attempt to
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“intimidate . . . and deter [the protesters] from exercising their First Amendment
Not one of the Defendant Sheriffs filed any evidence to dispute Plaintiffs’
version of the facts.13 Plaintiffs’ evidence at least establishes that Defendant Sheriffs
have taken an active role in making arrests and enforcing Florida’s criminal statutes
against protesters. And although Sheriff Tony asserts one of his employees has made
statements that his office will not enforce the challenged law, Sheriff Tony has filed
no evidence of an actual, formal policy to that effect. “Mid-litigation assurances are
all too easy to make and all too hard to enforce.” W. Ala. Women’s Ctr. v.
Williamson, 900 F.3d 1310, 1328 (11th Cir. 2018). Here, the reality is that Defendant
Sheriffs have an affirmative state-law duty to enforce the law at issue. See
§ 30.15(1)(f), Fla. Stat. What’s more, the Governor can order the Defendant Sheriffs
to do so and suspend them if they fail or refuse to act. In short, Florida law commands
sheriffs to suppress “riots,” if and when a sheriff or the Governor decides a gathering
of people has turned into a riot. Accordingly, this Court finds Plaintiffs have
demonstrated that Defendant Sheriffs’ enforcement authority causes Plaintiffs to
Sheriff McNeil filed no response whatsoever and takes no position on the motion for
preliminary injunction or the meaning of section 870.01(2), Florida Statutes (2021).
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self-censor and divert resources based on their well-founded fears that section
870.01(2) will be enforced against them. 14
Next, redressability. This prong of Article III standing “focuses . . . on whether
the injury that a plaintiff alleges is likely to be redressed through the litigation.”
Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 287 (2008). As this
Court has already noted, enjoining the Governor and the Defendant Sheriffs from
enforcing the challenged law has the practical consequence of removing the threat
that Florida law enforcement acting under the Governor’s orders, or the Defendant
Sheriffs themselves, will enforce section 870.01(2) against Plaintiffs’ members. See
ECF No. 90 at 40–42; see also Utah v. Evans, 536 U.S. 452, 464 (2002) (finding
redressability where a favorable ruling’s “practical consequence” was to make it
more likely “that the plaintiff would obtain relief that directly redresses the injury
“Article III also does not demand that the redress sought by a plaintiff be
complete.” Moody v. Holman, 887 F.3d 1281, 1287 (11th Cir. 2018). Here,
Defendant Williams asserts that, should any preliminary injunction issue, the public
interest served by the injunction would be limited given that Plaintiffs have not sued
Because Defendant Sheriffs have the power to enforce section 870.01(2), they have
“some connection” with the law’s enforcement and are proper parties under Ex parte Young. See
Osterback, 782 F. App’x at 858–59. This Court recognizes that there is an additional wrinkle
concerning the Defendant Sheriffs’ status as state officials, which this Court addressed in its order
on the motions to dismiss, ECF No. 90, incorporated by reference herein and discussed in more
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the relevant State Attorneys, the remaining 63 Sheriffs’ Departments, or other
policing agencies in Florida. ECF No. 98 at 12–13. To the extent Defendant
Williams implies that Plaintiffs must either have complete redress or receive no
relief at all, this is not the law. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801
(2021) (“True, a single dollar often cannot provide full redress, but the ability ‘to
effectuate a partial remedy’ satisfies the redressability requirement.” (quoting
Church of Scientology of Cal. v. United States, 506 U.S. 9, 13 (1992)); Church of
Scientology, 506 U.S. at 13 (“Even though it is now too late to prevent, or to provide
a fully satisfactory remedy for, the invasion of privacy that occurred when the IRS
obtained the information on the tapes, a court does have power to effectuate a partial
remedy by ordering the Government to destroy or return any and all copies it may
have in its possession.”). 15
Finally, Defendant Tony takes no position on the merits of Plaintiffs’ claims,
but instead reasserts his argument from the motion-to-dismiss stage that he is not
properly before this Court. ECF No. 96. Defendant Tony’s consternation is
apparently based on the fact that this Court did not blindly apply Hufford v. Rodgers,
912 F.2d 1338 (11th Cir. 1990), to find that the Defendant Sheriffs are not state
Plaintiffs have done what the Eleventh Circuit, in Jacobson and other cases, has
instructed plaintiffs to do when choosing the proper party to sue—they have sued those responsible
for enforcing the challenged law. Here, Plaintiffs have sued the chief law enforcers of the counties
where Plaintiffs and their members operate and who are tasked with the state-law duty of enforcing
Florida’s anti-riot laws.
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officials. Id. at 4–5. However, Hufford is no longer controlling after the Eleventh
Circuit’s en banc decision in Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) and
the Supreme Court’s related decision in McMillian v. Monroe County, 520 U.S. 781
Upon review of Defendant Tony’s response and the arguments presented at
the telephonic hearing with respect to this point, this Court reaffirms that Defendant
Sheriffs are properly before this Court as “state officials” with respect to their statelaw function to enforce Florida’s anti-riot laws.16 As discussed at the hearing, Florida
sheriffs are required by Florida law to command, “in the name of the state,” that
unlawful assemblies are to disperse. See § 870.04, Fla. Stat. Indeed, no other crime
in Florida is subject to such statewide concern. See § 14.022, Fla. Stat. (establishing
Governor’s emergency power to order sheriffs to suppress riots); § 30.15(1)(f), Fla.
Stat. (establishing Sheriffs’ duty to suppress riots). For these reasons, and those set
out in this Court’s Order on the Motions to Dismiss, this Court concludes that Florida
sheriffs act as state officials when enforcing Florida’s anti-riot laws, dispersing riots
under section 870.04, and quelling riots pursuant to their state-law duty under section
As discussed in footnote 14, I incorporate by reference the legal analysis regarding the
“Florida-sheriffs-as-state-officials” issue from my 72-page order on the motions to dismiss. See
ECF No. 90.
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This is a pre-enforcement facial challenge to a Florida criminal statute that
implicates Plaintiffs’ and their members’ First Amendment rights. Governor
DeSantis argues, though, that Plaintiffs’ claims are premature, essentially for two
reasons. First, because this Court may not invalidate a law in a facial, preenforcement vagueness and overbreadth challenge regardless of the risks of
discriminatory enforcement. ECF No. 99 at 5 (citing High Ol’ Times, Inc. v. Busbee,
673 F.2d 1225, 1231 (11th Cir. 1982)). And second, because this Court should
abstain from ruling on a pre-enforcement facial challenge to a statute that is
“susceptible to ‘construction by the state courts that would avoid or modify the
constitutional question.’ ” Id. at 6 (quoting Zwickler v. Koota, 389 U.S. 241, 249
(1967)). This Court will address each argument in turn.
In support of his first point, Governor DeSantis relies on several cases
concerning pre-enforcement challenges outside of the First Amendment context to
suggest that pre-enforcement review is essentially never appropriate when it comes
to vagueness and overbreadth claims that implicate First Amendment rights. But
decades of binding Supreme Court and Eleventh Circuit precedent has held that preenforcement review is available for plaintiffs in facial vagueness and overbreadth
challenges in the First Amendment context. See Am. Booksellers Ass’n, Inc., 484
U.S. at 392–93; Baggett v. Bullitt, 377 U.S. 360, 372 (1964); Wollschlaeger v.
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Governor, Fla., 848 F.3d 1293 (11th Cir. 2017) (en banc); Bankshot Billiards, Inc.
v. City of Ocala, 634 F.3d 1340, 1350 (11th Cir. 2011) (listing cases addressing preenforcement review of vagueness claims based on challenged law’s chilling effect
on constitutionally protected activity). Unless and until the Supreme Court charts a
new path, or the Eleventh Circuit, en banc, takes a different approach, this Court will
apply the law that binds it.
Of course, “premature” could also mean that Plaintiffs’ pre-enforcement
challenge is not ripe. Although it is unclear whether Governor DeSantis is arguing
that Plaintiffs’ claims are unripe, this Court finds that the vagueness and overbreadth
claims are ripe for review.
Ripeness requires this Court to evaluate whether the case is fit for judicial
adjudication and the hardship to the parties of withholding court consideration. Nat’l
Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003). Courts apply the
ripeness doctrine “most permissively” in the First Amendment context. Harrell v.
Fla. Bar, 608 F.3d 1241, 1258 (11th Cir. 2010); Temple B’Nai Zion, Inc. v. City of
Sunny Isles Beach, Fla., 727 F.3d 1349, 1357 (11th Cir. 2013) (“In the First
Amendment context, our ripeness review is at its most charitable, and should any
significant doubt prevail, we will resolve it in favor of justiciability.”); Beaulieu v.
City of Alabaster, 454 F.3d 1219, 1227 (11th Cir. 2006) (“Because this case involves
an alleged violation of the First Amendment, our review of this suit’s ripeness is at
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its most permissive.”). For pre-enforcement challenges, “Article III standing and
ripeness issues . . . boil down to the same questions.” Wollschlaeger, 848 F.3d at
1304 (internal quotation omitted). That question is, “when [does] the threatened
enforcement of a law create an Article III injury?” Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 158 (2014). For the same reasons this Court finds that
Plaintiffs have suffered sufficiently concrete injuries, Plaintiffs’ challenge is ripe for
review. Moreover, the question of whether section 870.01(2) is facially vague or
overbroad requires no factual development; rather, it is a purely legal question and
is, therefore, presumptively ripe for judicial review. Club Madonna, Inc. v. City of
Miami Beach, 924 F.3d 1370, 1380 (11th Cir. 2019) (“A facial challenge presenting
purely legal argument is presumptively ripe for judicial review because that type of
argument does not rely on a developed factual record.”).
As to his second point, Governor DeSantis argues that, in the absence of any
state court interpretation of the challenged law, this Court should abstain from
reaching the merits of Plaintiffs’ vagueness and overbreadth claims. Governor
DeSantis fails to identify the abstention doctrine he is relying on to argue that this
Court should abstain until a state court interprets the statute. Accordingly, this Court
will discuss some possible options and whether they apply in this case.
First, there is Burford abstention, which requires federal courts to abstain in
deference to complex state administrative procedures. Burford v. Sun Oil Co., 319
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U.S. 315, 332 (1943); Boyes v. Shell Oil Prods. Co., 199 F.3d 1260, 1265 (11th Cir.
2000). Second, there is Thibodaux abstention, which applies when state law is
uncertain and important state issues such as eminent domain are at issue. See La.
Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 27–30 (1959). Third, there is
the well-known Younger abstention, which requires a court to abstain when there is
a pending state judicial proceeding absent extraordinary circumstances. See Younger
v. Harris, 401 U.S. 37, 53 (1971). Fourth, under Colorado River abstention, a court
should abstain in certain circumstances when there is an ongoing, parallel state
proceeding. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800,
818 (1976). Finally, there is Pullman abstention, which generally requires a federal
court to abstain when state law is unclear, and a state court decision may make
federal adjudication of a constitutional issue unnecessary. See Duke v. James, 713
F.2d 1507, 1510 (11th Cir. 1983).
Burford, Thibodaux, Younger, and Colorado River abstention are all
inapplicable here because there are no parallel state court proceedings, Governor
DeSantis has pointed to no important state issues, and no complex state
administrative procedures are at issue. What remains, then, is Pullman abstention. It
appears from Governor DeSantis’s arguments that he relies on Pullman abstention.
See ECF No. 107 (invoking Pullman abstention in Governor’s Answer to Plaintiffs’
Complaint). So, the question is whether abstaining under Pullman is appropriate.
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“[F]ederal courts have a virtually unflagging obligation . . . to exercise the
jurisdiction given to them.” Colorado River, 424 U.S. at 817. “Abstention from the
exercise of federal jurisdiction is the exception not the rule.” Id. at 813. Indeed, it is
“an extraordinary and narrow exception to the duty of a District Court to adjudicate
a controversy properly before it.” Id.
Moreover, abstention is not an automatic rule, but one of discretion. Baggett,
377 U.S. at 375; Siegel v. LePore, 234 F.3d 1163, 1174 (11th Cir. 2000) (en banc).
The Supreme Court has made clear that “the power to dismiss under the Burford
doctrine, as with other abstention doctrines, . . . derives from the discretion
historically enjoyed by courts of equity.” Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 727–28 (1996) (emphases added). In exercising its discretion, a federal court
must consider whether “certain classes of cases, and certain federal rights” are more
appropriately “adjudicated in federal court.” Id. at 728. Abstention is improper when
a party alleges that certain rights are threatened. Courts “must also take into
consideration the nature of the controversy and the particular right sought to be
enforced.” Edwards v. Sammons, 437 F.2d 1240, 1243 (5th Cir. 1971). 17
The statute in question implicates free expression and assembly rights
protected by the First Amendment. In similar situations, the Supreme Court and a
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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whole host of other courts have repeatedly held that abstention is inappropriate. See,
e.g., Baggett, 377 U.S. at 378–79; Dombrowski v. Pfister, 380 U.S. 479, 490–92
(1965); City of Houston, Tex. v. Hill, 482 U.S. 451, 467–68 (1987) (“We have held
that ‘abstention . . . is inappropriate in cases [where] . . . statutes are justifiably
attacked on their face as abridging free expression.’ ”); Cate v. Oldham, 707 F.2d
1176, 1184–85 (11th Cir. 1983) (declining to invoke Pullman abstention due to “the
great costs imposed by abstaining in” a case involving the First Amendment); Hobbs
v. Thompson, 448 F.2d 456, 462 (5th Cir. 1971) (“Courts have long recognized that
abstention is particularly inappropriate in an overbreadth or vagueness case
grounded upon the First Amendment.”). This is because the practical reality of
abstention is that it would require “piecemeal adjudication in many courts, thereby
delaying ultimate adjudication on the merits for an undue length of time, a result
quite costly where the vagueness of a state statute may inhibit the exercise of First
Amendment freedoms.” Id. at 379. “[T]o force the plaintiff who has commenced a
federal action to suffer the delay of state-court proceedings might itself effect the
impermissible chilling of the very constitutional right he seeks to protect.” Hill, 482
U.S. at 467–68 (quoting Zwickler, 389 U.S. at 252).
Here, the chilling effect is particularly pronounced given that the law not only
creates a risk of prosecution, but also subjects the person to mandatory time in
custody until first appearance. § 870.01(6), Fla. Stat. Given that a vague law does
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not give a would-be protestor any notice about what the law criminalizes, and that
the person may be punished for constitutionally protected activity given the law’s
potentially overbroad scope, a reasonable person, as the declarations in this case
make clear, would censor his own speech rather than risk arrest and time in jail. See
Dombrowski, 380 U.S. at 491–92 (“[T]o abstain is to subject those affected to the
uncertainties and vagaries of criminal prosecution, whereas the reasons for the
vagueness doctrine in the area of expression demand no less than freedom from
prosecution prior to a construction adequate to save the statute.”).
Moreover, as it relates to vagueness, the Supreme Court has held that when a
statute is challenged because plaintiffs “cannot understand the required promise,
cannot define the range of activities in which they might engage in the future, and
do not want to forswear doing all that is literally or arguably within the purview of
the vague terms,” abstention is not required. Baggett, 377 U.S. at 378. This is
because “it is fictional to believe that anything less than extensive adjudication,
under the impact of a variety of factual situations, would bring the [statute] within
the bounds of permissible constitutional certainty.” Id. That is precisely the case
here. As it relates to overbreadth, the Supreme Court in Zwickler “squarely held that
the abstention doctrine is inappropriate for cases in which the statute is justifiably
attacked on its face for an ‘overbreadth’ that abridges free expression.” Davis v.
Francois, 395 F.2d 730, 732 (5th Cir. 1968); see also Zwickler, 389 U.S. at 246–52.
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The practical effect of Governor DeSantis’s request to abstain is that many
individuals who seek to protest would stay home due to the chilling effect of a vague
and overbroad statute (as evident from Plaintiffs’ declarations), and those brave
enough to go protest may not understand whether their actions conform to the
bounds set forth by the statute and risk being arrested. What is more, even if a person
who is arrested acted within constitutional bounds, he or she may have to spend time
in custody before a state court dissects the statute to discern its meaning and
determine whether that person was lawfully arrested. § 870.01(6), Fla. Stat. Surely,
the abstention doctrine does not place such a burden on a person’s fundamental right
to freedom of speech. While legal doctrines often ignore practical realities, the
Supreme Court has repeatedly emphasized the importance of not abstaining in cases
involving the First Amendment.
In any event, even if the Supreme Court’s repeated admonition against
abstaining in cases involving facial challenges to statutes that allegedly violate the
First Amendment is an insufficient basis for this Court to decline the Governor’s
request to abstain, this Court still exercises its discretion to decline to abstain here
because the statute in question is not “obviously susceptible to a limiting
construction.” Hill, 482 U.S. at 468. As explained in detail below, section 870.01(2)
is incomprehensibly vague. And although Governor DeSantis argues that state courts
may provide a limiting construction, he proffers no narrow construction that would
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save the statute from its constitutional infirmity. Absent wholly rewriting the statute,
state courts cannot provide a limiting construction that would resolve section
870.01(2)’s constitutional infirmity.
Given the potential, and actual, chilling effect that abstention would prolong,
and the Supreme Court’s repeated warning against abstaining in First Amendment
cases, this Court chooses not to abstain from hearing Plaintiffs’ claims and resolving
Plaintiffs’ motion for preliminary injunction.
Under Rule 65 of the Federal Rules of Civil Procedure, a district court may
grant a preliminary injunction if the movant shows: “(1) it has a substantial
likelihood of success on the merits;” (2) it will suffer irreparable injury “unless the
injunction issues; (3) the threatened injury to the movant outweighs whatever
damage the proposed injunction may cause the opposing party; and (4) if issued, the
injunction would not be adverse to the public interest.” Siegel, 234 F.3d at 1176.
Although a “preliminary injunction is an extraordinary and drastic remedy,” it
nonetheless should be granted if “the movant ‘clearly carries the burden of
persuasion’ as to the four prerequisites.” United States v. Jefferson Cnty., 720 F.2d
1511, 1519 (11th Cir. 1983) (quoting Canal Auth. v. Callaway, 489 F.2d 567, 573
(5th Cir. 1974)). None of these elements, however, is controlling; rather, this Court
must consider the elements jointly, and a strong showing on one element may
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compensate for a weaker showing on another. See Fla. Med. Ass’n, Inc. v. U.S. Dep’t
of Health, Educ., & Welfare, 601 F.2d 199, 203 n.2 (5th Cir. 1979).
This Court begins with whether Plaintiffs have shown a substantial likelihood
of success on the merits. This Court addresses this factor first because failure here
obviates the need to “consider the remaining conditions prerequisite to injunctive
relief.” Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242,
1247 (11th Cir. 2002) (citing Pittman, 267 F.3d at 1292). On the merits, Plaintiffs
argue that the new definition of “riot” is impermissibly vague and overbroad.
Vague laws violate the Due Process Clause because they fail to give notice of
what they prohibit. A law can be impermissibly vague in two distinct ways. “First,
if it fails to provide people of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits. Second, if it authorizes or even encourages
arbitrary and discriminatory enforcement.” Wollschlaeger, 848 F.3d at 1319–20.
Overbroad laws, on the other hand, violate the First Amendment because they punish
“a substantial amount of protected free speech, judged in relation to the statute’s
plainly legitimate sweep.” Virginia v. Hicks, 539 U.S. 113, 118–19 (2003) (cleaned
Vagueness and overbreadth are interrelated but discrete concepts. Am.
Booksellers v. Webb, 919 F.2d 1493, 1505 (11th Cir. 1990). For example, a law that
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prohibits any person from engaging “in First Amendment activities” in a set area is
overbroad but not vague. Erwin Chemerinsky, Constitutional Law 1032 (6th ed.
2019) (quoting Bd. of Airport Comm’rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569,
571 (1987)). And a law that bans all activity not protected by the First Amendment
is vague but not overbroad. Id. But often a law is both overbroad and vague—a
concept the Eleventh Circuit has called “[o]verbreadth from indeterminacy.” Webb,
919 F.2d at 1505. This is so because an indefinite law may give the government
leeway to punish protected conduct. So, in addressing overbreadth, this Court must
“evaluate the ambiguous as well as the unambiguous scope of the enactment.” Vill.
of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 495 n.6 (1982).
For both challenges, this Court begins by construing the statute at issue. This
Court starts here because it is mindful that it has a duty to construe the statute as
constitutional if it can. 18 See Boos v. Barry, 485 U.S. 312, 330 (1988).
This Court addressed constitutional avoidance at the hearing and pressed
Governor DeSantis’s counsel as to the proper standard that applies in this case. See
Tr. at 25 (“What is your best case that says in the context of a First Amendment
This Court recognizes that there are really two doctrines at play here. One “holds that
courts should, if possible, interpret ambiguous statutes to avoid rendering them unconstitutional.”
United States v. Davis, 139 S. Ct. 2319, 2332 n.6 (2019). The other “suggests courts should
construe ambiguous statutes to avoid the need to address serious questions about their
constitutionality.” Id. Given their obvious overlap, both are addressed together here.
Case 4:21-cv-00191-MW-MAF Document 137 Filed 09/09/21 Page 46 of 90
analysis that so long as there’s one constitutional reasonable construction, that’s the
end of the inquiry?”). Although the Governor could not identify a case at the hearing,
he later filed supplemental authority partially addressing this Court’s questions. ECF
No. 130. But upon review, the Governor’s supplemental authority left this Court
with more questions than answers. Accordingly, this Court ordered the parties to
submit supplemental briefing addressing (1) whether the constitutional avoidance
canon that the Governor cited applies in facial vagueness and overbreadth challenges
to state statutes and, if so, (2) what the proper framework is for this Court to apply
that canon. ECF No. 131.
In their supplemental briefs, Plaintiffs and Sheriff Williams agree that when a
narrowing construction of a state statute would avoid a constitutional infirmity, this
Court may adopt such a construction only if it is “reasonable and readily apparent.”
ECF No. 133 at 2-3; ECF No. 134 at 5. Governor DeSantis, on the other hand, asserts
that whenever Florida courts and federal courts are “presented with two
constructions of a statute, at least one of which is reasonable and constitutional,
courts adopt that construction.” ECF No. 135 at 5 n.4. But the Governor misstates
the rule by merging different standards into one. Accordingly, this Court pauses to
set out the standard this Court must use and explain how it applies in this case.
The nature of this Court’s duty to narrowly construe a challenged statute
varies depending on whether this Court is construing a state or federal enactment.
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When a federal law is at issue, this Court has a “duty to avoid constitutional
difficulties by [adopting a limiting construction] if such a construction is fairly
possible.” Boos, 485 U.S. at 331 (emphasis added). If, on the other hand, a state law
is at issue, this Court cannot “adopt a narrowing construction . . . unless such a
construction is reasonable and readily apparent.” Id. at 330 (emphasis added);
accord Stenberg v. Carhart, 530 U.S. 914, 944 (2000); see also Gooding v. Wilson,
405 U.S. 518, 520 (1972) (noting that “[o]nly the [state] courts can supply the
requisite construction” to save an otherwise vague and overbroad statute).
“The distinction is an important one” because “[w]hen a state statute has
unconstitutional applications and has not been given a narrowing construction by the
state court that saves it from those applications, federal courts ‘must be careful not
to encroach upon the domain of a state legislature by rewriting a law to conform it
to constitutional requirements.’ ” Toghill v. Clarke, 877 F.3d 547, 556 (4th Cir.
2017) (quoting Legend Night Club v. Miller, 637 F.3d 291, 301 (4th Cir. 2011)); see
also Dimmitt v. City of Clearwater, 985 F.2d 1565, 1572 (11th Cir. 1993) (“[A]s a
federal court, we must be particularly reluctant to rewrite the terms of a state statute.”
(emphasis in original)); Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 833 (7th
Cir. 2014) (explaining that “the ‘unless’ clause” in “unless such construction is
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reasonable and readily apparent” is an “important federalism principle [that] should
be invoked sparingly and with caution.”). 19
So the question before this Court is not whether there is any reading that would
render the statute constitutional. Nor is it whether there is a possible, plausible, or
simply reasonable reading that would render the statute constitutional. Instead, the
question is whether there is a constitutional reading of the statute that is both
reasonable and readily apparent and, thus, does not require this Court to rewrite the
statute to conform it to constitutional requirements. See Citizens for Responsible
Gov. State Pol. Action Comm. v. Davidson, 236 F.3d 1174, 1194–95 (10th Cir. 2000)
(declining state’s invitation to give statute at issue “a construction more restrictive
than that provided by [its] plain language” (quoting Wilson v. Stocker, 819 F.2d 943,
948 (10th Cir. 1987)).
With that in mind, this Court starts with the text. Section 870.01(2) provides
Governor DeSantis relies on Pine v. City of West Palm Beach for the proposition that
“when one interpretation of a law raises serious constitutional problems, courts will construe the
law to avoid those problems so long as the reading is not plainly contrary to legislative intent.”
762 F.3d 1262, 1270 (11th Cir. 2014). Pine, says the Governor, sets the standard in this case. But
the Governor’s interpretation of Pine—that it requires this Court to adopt any plausible
constitutional interpretation—is inconsistent with decades of Supreme Court and Eleventh Circuit
cases. See Boos, 485 U.S. at 331 (explaining that a federal court cannot “adopt a narrowing
construction [of a state statute] . . . unless such a construction is reasonable and readily apparent”);
see also Dimmitt, 985 F.2d at 1572; Webb, 919 F.2d at 1508; Gay Lesbian Bisexual All. v. Pryor,
110 F.3d 1543, 1550 (11th Cir. 1997). Instead, this Court reads Pine as holding that the ordinance
at issue was susceptible to a reasonable and readily apparent limiting construction. Just because
the Eleventh Circuit did not use the magic words does not mean it sought to overrule itself and the
Supreme Court sub silentio.
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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
§ 870.01(2), Fla. Stat. (2021).
Plaintiffs assert that this language is vague because it does not make clear (1)
whether a person must share a common intent with three or more persons to engage
in violent and disorderly conduct; or (2) whether it merely requires a person to
willfully participate in a violent public disturbance that includes a discrete assembly
of three or more persons who are assisting each other in violent and disorderly
conduct (even though the person willfully participating in the disturbance does not
share their common intent). ECF No. 65 at 20–21. Plaintiffs also argue that it is
unclear whether the reciprocal pronoun “each other” is intended to relate to the
“three or more persons” in the assembly or to both the person and the assembly of
three or more persons. Id. at 21. Lastly, Plaintiffs contend that the phrase “willfully
participates” provides no notice of what conduct is prohibited. Id. at 21–22. In short,
Plaintiffs assert that one could plausibly read the statute to prohibit a peaceful
protester from continuing to peacefully protest the moment he or she knows that
violence has broken out between several persons at a demonstration.
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Pushing back, Governor DeSantis asserts that the definition is not vague
because “ ‘riot’ has a common meaning that will inform an ordinary person’s
reading.” ECF No. 99 at 8. Further, in their papers, both Governor DeSantis and
Sheriff Williams argue that the new definition “merely codifies Florida’s longstanding definition of ‘riot.’ ” ECF No. 98 at 6; ECF No. 99 at 10 (arguing that
section 870.01(2) “mirrors the common law definition of ‘riot’ ”). At the hearing,
however, Governor DeSantis changed his argument from what was briefed to assert
the amendment clarified, not codified, the common-law definition. Tr. at 18 (“And
the legislature was not simply trying to mirror the common law definition.”). Finally,
both Defendants assert that the new definition plainly requires the “person”
described in the statute share the common intent to do violence with the “three or
more people” described later in the sentence. See ECF No. 99 at 13.
To start, this Court must make clear the question before it. The question is not
how the statute actually applies. That is to say, this Court is not construing the statute
to apply it in a particular, well-defined context. Rather, the question is whether a
person of ordinary intelligence can understand what the statute prohibits. Thus, the
canons of construction, while still relevant, take on less significance. And while this
is a Court of law—not grammar—the “ordinary principles of English prose” are not
“irrelevant” to the definition’s construction. See Flora v. United States, 362 U.S.
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145, 150 (1960). This is especially true here, where the question is how a person of
ordinary intelligence would read the statute.
That said, Governor DeSantis is absolutely right that “the Due Process clause
does not demand perfection from legislators.” ECF No. 99 at 7 (citing Grayned v.
City of Rockford, 408 U.S. 104, 110–11 (1972)). And so this Court will not enjoin
the statute’s enforcement merely because it can imagine some “close cases.” United
States v. Williams, 553 U.S. 285, 305 (2008).
This Court also acknowledges the obvious up front; some conduct clearly falls
within the definition’s scope. Tossing Molotov cocktails at the police station with
10 of your best friends is clearly rioting. But the Supreme Court has squarely rejected
the argument that “a vague provision is constitutional merely because there is some
conduct that clearly falls within the provision’s grasp.” Johnson v. United States,
576 U.S. 591, 602 (2015).
Likewise, although it is well within the Florida Legislature’s purview to ban
coordinated violent or destructive conduct, overbreadth is an exception to the rule
that a plaintiff who brings a facial attack on a statute must show that the statute can
never be constitutionally applied. Doe v. Valencia Coll., 903 F.3d 1220, 1232 (11th
Cir. 2018). All of this is to say that the mere fact that the statute has some
constitutional applications does not decide the ultimate issue before this Court.
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With those caveats, this Court turns back to the statute’s language. Starting
with the first part of the statute, “a person commits a riot if he or she willfully
participates in a violent public disturbance . . . .” § 870.01(2), Fla. Stat. First, a person
must “willfully participate” to commit a riot. To be sure, as Defendants argue,
“willfully” has a commonly understood definition in Florida—“intentionally and
purposefully.” Cahours v. State, 147 So. 3d 574, 576 (Fla. 1st DCA 2014). So a
person must do something on purpose rather than on accident.
So far so good. But even a commonly understood word may be rendered
ambiguous by the language surrounding it. Wollschlaeger, 848 F.3d at 1321. Here,
our potential rioter must “willfully participate in a violent public disturbance.” This
begs the questions of (1) what does it mean to participate, and (2) what is a violent
This is where things fall apart. Although both Governor DeSantis and Sheriff
Williams argue that the phrase “willfully participate” is commonly understood,
neither party offers an actual definition. Is it enough to stand passively near
violence? What if you continue protesting when violence erupts? What if that protest
merely involves standing with a sign while others fight around you? Does it depend
on whether your sign expresses a message that is pro- or anti-law enforcement? What
about filming the violence? What if you are in the process of leaving the disturbance
and give a rioter a bottle of water to wash tear gas from their eyes?
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The Governor would have this Court pencil in an exception for a person who
merely “attend[s]” a violent demonstration but does not actively engage in violence
or conduct that poses an imminent risk of injury or property damage. ECF No. 99 at
13. But the Governor offers no explanation or construction that limits when mere
attendance becomes participation, except that a person must “intend to commit
violence.” Id. But this ignores the plain text of the statute, which separates a person
from an assembly of three or more persons sharing that intent. See infra.
A “violent public disturbance” raises similar questions. Is a violent public
disturbance a peaceful protest that later turns violent? Is it a protest that creates an
imminent risk of violence? Do the violent actions of three people render an otherwise
peaceful protest of 300 people a violent public disturbance? Does a rowdy group of
Proud Boys20 or anarchists have veto power over peaceful protests under this
definition? At least one Florida court has defined a “riot” as a “violent public
disturbance.” City of Daytona Beach v. Brown, 273 So. 2d 124, 126 (Fla. 1st DCA
1973). Perhaps, then, a person riots if they willfully participate in a riot?
Governor DeSantis offers no answers to these questions—instead, he insists
the statute is clear in that “it merely prohibits participating in, or assisting others in
The “Proud Boys” are “a far-right extremist group,” whose members have been accused
of “taking part in the siege of the U.S. Capitol” on January 6, 2021. Proud Boy organizer arrested
in Florida over riot at Capitol, Associated Press, (January 21, 2021, 3:22 AM),
https://abcnews.go.com/Politics/wireStory/proud-boy-organizer-arrested-florida-riot-capitol75387065 (last visited Sep. 9, 2021).
Case 4:21-cv-00191-MW-MAF Document 137 Filed 09/09/21 Page 54 of 90
participating in, violent protests.” ECF No. 135 at 9.21 The Governor’s strained
construction eliminates the phrase “a violent public disturbance involving” and
would instead require only that a person commits a riot if he or she willfully
participates in an assembly of three or more persons, acting with a common intent
to assist each other in violent and disorderly conduct. ECF No. 99 at 13 (“And it
logically follows that a person willfully participating in a group that acts with a
common intent will share that intent.”). But as Governor DeSantis acknowledges,
this Court must read the statute as a whole and give meaning to each word or phrase
that the Legislature used. And here, the Legislature situated the riotous assembly of
three or more persons within a larger whole—a “violent public disturbance.” Surely
the smaller assembly and the larger public disturbance are two distinct concepts, as
discussed in more detail below.
The next portion of the statute further muddles things because it stacks
multiple participial phrases on each other in a way that has led to fundamental
disagreement between the parties. It provides that a person commits a riot if they
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” injury, property damage, or imminent risk of either
This begs the question whether the Governor reads a “public disturbance” to mean a
Case 4:21-cv-00191-MW-MAF Document 137 Filed 09/09/21 Page 55 of 90
injury or property damage. § 870.01(2), Fla. Stat. (emphasis added). To start, the
statute qualifies the public disturbance as “involving an assembly of three or more
persons, acting with a common intent to assist each other in violent and disorderly
conduct, resulting in” either “(a) Injury to another person; (b) Damage to property;
or (c) Imminent danger of injury to another person or damage to property.”
The key word here, which Defendants refuse to confront, is “involving.”
Oxford Dictionary defines “involve” as “(of a situation or event) include
(something) as a necessary part or result.” Involve, Oxford Dictionaries,
involving (last visited Sep. 9, 2021); see also Involve, Merriam-Webster.com
involve (last visited Sep. 9, 2021) (noting that “involve” means “to contain within
as part of the whole”). “Involving” is the present participle of “involve,” which
modifies “a violent public disturbance.” See Bryan A. Garner, Garner’s Modern
American Usage 909 (3d ed. 2009) (noting that a participle is a word derived from
a verb but having characteristics of both a verb and an adjective, and functions as an
adjective when it modifies a noun or pronoun).
The closest Governor DeSantis comes to addressing this term is in offering
his construction, which requires a person to willfully participate “in a violent public
disturbance involving 3 or more people.” ECF No. 99 at 10. Setting aside the fact
Case 4:21-cv-00191-MW-MAF Document 137 Filed 09/09/21 Page 56 of 90
that the Governor has eliminated the statutory phrase “an assembly of” from the text
of the statute, he does not address head on whether a peaceful protest that is disrupted
by violent counter protesters, unruly college students, or anyone else who seeks
violence is transformed into a larger “violent public disturbance,” or if only the
subset of people actively engaging in violent or destructive activities is the “violent
public disturbance.” By 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, in the same sense that a movie involving sex and violence is not
necessarily a film in which all the characters do throughout the film is engage in sex
and violence. Thus, it appears that a person must participate in a violent public
disturbance that includes, as a necessary part or contains as part of the whole, “an
assembly of three or more persons, acting with a common intent to assist each other
in violent and disorderly conduct” and that results in injury, property damage, or an
imminent threat of injury or property damage.
While Defendants argue at length that the person must share the intent to assist
the three or more persons in violent and disorderly conduct, this reading finds no
support in the text. Grammatically, “a limiting clause or phrase . . . should ordinarily
be read as modifying only the noun or phrase that it immediately follows.” Barnhart
v. Thomas, 540 U.S. 20, 26 (2003). Thus, the participial phrase, “acting with a
common intent to assist each other” would ordinarily modify the assembly of three
Case 4:21-cv-00191-MW-MAF Document 137 Filed 09/09/21 Page 57 of 90
or more persons—the phrase that it immediately follows and not, as Defendants’
suggest, the “person” at the beginning of the sentence.
Putting it all together, the statute—if it is susceptible to any reasonable
reading—appears to require a person to intentionally participate in a violent public
disturbance. Further, that disturbance must include three or more persons acting
together with a common intent to assist each other in violent and disorderly conduct,
and either the violent public disturbance or the violent and disorderly conduct—it is
not entirely clear which or if there is even a difference between the two—must result
in injury, property damage, or the imminent risk thereof. Such a reading raises grave
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This reading also comports with the sentence diagram Plaintiffs submitted,
and which this Court has reproduced below. 22
ECF No. 119 at 2 (Plaintiffs’ sentence diagram).
Plaintiffs read the statute such that the “resulting in” phrase modifies the “violent public
disturbance.” However, the statute could also plausibly require the “violent and disorderly
conduct”—the object of an assembly of three or more persons’ common intent to assist each
other—to result in injury, property damage, etc.
Case 4:21-cv-00191-MW-MAF Document 137 Filed 09/09/21 Page 59 of 90
On the other hand, Governor DeSantis and Sheriff Williams argue strenuously
against this reading. The diagram below visualizes their alternative reading, which
shifts the participial phrase “acting with a common intent to assist each other in
violent and disorderly conduct” from modifying the phrase “an assembly of three or
more persons,” as shown in Plaintiffs’ diagram, to modifying the pronouns “he or
she”—the placeholders for the subject “person.”
ECF No. 121-1 (Governor DeSantis’s sentence diagram).
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Leaning on the doctrine of constitutional avoidance, Governor DeSantis
argues that this Court must adopt the above interpretation because it is just as
reasonable as Plaintiffs’. Tr. at 26 (“[B]etween two reasonable interpretations, one
of which is constitutional, . . . the Court accepts that constitutional interpretation”).23
To start, as explained above, because this is a state statute, the Governor’s suggested
reading can save the statute only if it is both reasonable and readily apparent. It is
not. Sheriff Williams, on the other hand, argues that this construction is the only
reasonable way to read the statute. ECF No. 134 at 2 (“Because the interpretation of
Section 15 advanced by Sheriff Williams is the only grammatically and legally
correct interpretation of the statute, there is no need to apply the canon of
constitutional avoidance, as two readings of the statute are not equally reasonable or
plausible.”). Again, it is not. As explained below, section 870.01(2)’s text simply
will not bear the construction the Defendants would have this Court give it.
In advancing their interpretation, Governor DeSantis and Sheriff Williams
make multiple arguments, which this Court will address in turn. First, Governor
DeSantis asserts, correctly, that the provision at issue cannot be read in isolation.
Further, he argues, this Court must look to section 870.01(7) for additional
clarification, because it provides that “[t]his section does not prohibit
Although Governor DeSantis did not raise this issue in his papers, it became a major
feature of his argument during the hearing. But the mere fact that the Governor’s argument has
morphed does not absolve this Court of its responsibility to consider the issue.
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constitutionally protected activity such as a peaceful protest.” § 870.01(7), Fla. Stat.
Governor DeSantis argues that this section “mak[es] plain” that the statute
cannot be read as Plaintiffs suggest. ECF No. 99 at 13. Governor DeSantis is right,
in part. While a “savings clause” like section (7) may “validate a construction of the
statute which avoids its application to protected expression,” the clause “cannot
substantively operate to save an otherwise invalid statute.” CISPES (Comm. in
Solidarity with People of El Salvador) v. FBI, 770 F.2d 468, 474 (5th Cir. 1985). Put
another way, section (7) does nothing more than restate the constitutional avoidance
canon. Id. (explaining that constitutional savings clauses are “mere restatement[s] of
well-settled constitutional restrictions on the construction of statutory enactments”).
And so, even if section (7) supports a constitutional reading of the statute, it cannot,
on its own, render the statute unambiguous.
Defendants also argue that the statute merely enacts riot’s long-applied
common-law definition—although, as noted above, their argument has been a bit of
a moving target. At common law, a riot was “a tumultuous disturbance of the peace
by three or more persons, assembled and acting with a common intent, either in
executing a lawful private enterprise in a violent and turbulent manner, to the terror
of the people, or in executing an unlawful enterprise in a violent and turbulent
manner.” Beasley, 317 So. 2d at 752. Thus, at common law, a person accused of
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rioting was required to share the same intent as his or her compatriots to act “in a
violent and turbulent manner.” See Bayes v. State, 454 So. 2d 703, 704 (Fla. 1st DCA
1984) (upholding a child’s conviction for rioting under 1971 statute where he, “with
at least three other boys, acted in a violent manner, thereby causing a tumultuous
disturbance of the peace in throwing pieces of asphalt toward vehicles and staff
members” at the Arthur G. Dozier School for Boys).
It is clear why Defendants make this argument. If, for example, the Legislature
had passed a bill that was identical to HB1 in all respects, except that it provided that
a “riot” means “riot as defined at common law,” this Court would not hesitate to
uphold the law against a vagueness or overbreadth challenge. The same would be
true if the Legislature made minor changes to riot’s definition that left the meaning
intact. The problem, however, is that Defendants cannot articulate why this Court
should conclude that the new definition merely codified the common law. Indeed,
regardless of whether the Defendants’ argument is that the new definition enacts the
common-law definition or clarifies it, their argument cannot be squared with what is
before this Court. For one, the common-law definition appears to be engrafted, in
part, into the statute’s definition; specifically, the portion describing “an assembly
of three or more persons, acting with a common intent to assist each other in violent
and disorderly conduct.”
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But if the statute carries the same meaning as the common-law definition, one
must wonder what the 17 words preceding this portion of the definition are doing.
That Florida law directs this Court to give meaning to “every word, phrase, sentence,
and part of the statute” makes this interpretation all the more problematic. Edwards
v. Thomas, 229 So. 3d 277, 284 (Fla. 2017) (quoting Quarantello v. Leroy, 977 So.
2d 648, 651–52 (Fla. 5th DCA 2008)). Giving meaning to all the words used by the
Legislature, it appears the new definition changed the common-law definition by
separating “a person” from the “assembly of three or more persons” who share a
As for the statute’s grammar and internal logic, Governor DeSantis argues
that the “term ‘each other’ is a reciprocal pronoun that only refers to exactly two
people or things” and that “the reciprocal pronoun ‘one another,’ on the other hand,
refers to three or more people or things.” ECF No. 121 at 2 (citing Bryan A. Garner,
Dictionary of Modern Legal Usage 302 (2d ed. 2001)). Thus, says Governor
DeSantis, because the statute uses the term “each other,” it “requires the ‘person’ to
act with the intent to assist the assembly in violent and disorderly conduct.” Id. at 3
(cleaned up). If instead the new definition described the intent of the persons in the
assembly, it would have used “one another” because it was referring to three or more
people as opposed to one person and a separate thing—an assembly. Id.
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While Mr. Garner is certainly well respected and his texts serve as helpful
references, he is not the emperor of grammar and usage. And here, his description
of the difference between “each other” and “one another,” though technically
correct, does not end the inquiry—nor does it match the reality of common usage.
To start, Governor DeSantis’s citation to the technical rule that “each other”
refers only to two persons or things relies on there being only two persons or things
to make proper use of “each other” in the statute. Accordingly, the Governor points
to the “person” who is the subject of the statute (“A person commits a riot if he or
she . . . ) and the “assembly” of three or more persons as the two persons or things
to which “each other” refers. Indeed, a person is a single person, and an assembly is
a single “thing.” So, under the Governor’s reading, the Legislature has made proper
use of “each other” by referring to a single person and a single thing. But Governor
DeSantis ignores—either out of convenience or necessity—that the assembly at
issue must include “three or more persons.” With that in mind, “each other”
effectively refers back to at least four people: “a person” and “three or more
Governor DeSantis’s reading also ignores the common usage of “each other.”
Merriam-Webster explains that “[e]ach other and one another are used
interchangeably by good writers and have been since at least the 16th century.” Each
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webster.com/dictionary/each%20other (last visited Sep. 9, 2021). It should come as
no surprise that the Florida Legislature has also used the terms interchangeably in
other statutes—but in violation of the technical grammar rule the Governor cites.
See § 732.703(3)(i), Fla. Stat. (stating “the decedent and that person are married to
one another”); § 837.021(1), Fla. Stat. (addressing “two or more material statements
. . . which contradict each other”). All this is to say that a person of ordinary
intelligence will not look at the statute and think, “ah ha! the statute says ‘each other,’
not ‘one another,’ it’s all clear now.” 24 But see ECF No. 120 at 4 (arguing that, had
the Legislature “used the reciprocal pronoun ‘one another,’ ” it would have
“rendered the statute ambiguous”).
Finally, as partially addressed above, Defendants DeSantis and Sheriff
Williams argue at length that (1) “riot” has a common meaning that will inform an
average person’s reading of the statute, (2) that “willfully participate” has an obvious
meaning, and (3) that people will know what the statute prohibits because “it
logically follows that a person willfully participating in a group that acts with a
common intent will share that intent.” ECF No. 99 at 13; ECF No. 98 at 7, 11; see
also Tr. at 29 (“[A] common, ordinary person would certainly understand what a riot
All bets are off if English teachers, who some would say are people of extraordinary
intelligence, read the statute.
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The problem for Defendants is that, although they repeatedly claim that their
preferred reading is crystal clear, they never truly explain why. Simply put,
Defendants argue that one can tell that the statute embraces their reading because of
the way it is.25 And it should come as no surprise that Defendants refuse to engage
meaningfully with the statute’s text. As demonstrated above, the moment one does,
Defendants’ interpretation crumbles.
Defendants’ proposed interpretation strains the rules of construction,
grammar, and logic beyond their breaking points, and requires this Court to ignore
the plain text of the statute and blithely proclaim that “everyone knows what a riot
means,” notwithstanding this new definition that the Florida Legislature enacted.
Under both separation of powers and federalism principles, this Court cannot
“rewrite” the statute “to conform it to constitutional requirements.” Am. Bookseller’s
Assn., Inc., 484 U.S. at 397. But that is what Defendants ask this Court to do. Indeed,
Defendants would have this Court pencil in the margins that only active, violent acts
in furtherance of either the “violent public disturbance” or the “violent and
disorderly conduct”—again, it is not clear which—constitute participation. In so
doing, Defendants also imply that this Court should strike the “imminent danger”
requirement under the “resulting in” phrase, as it is unclear how someone actively
In that regard, Defendants’ argument is reminiscent of the beloved aspen tree meme. See
This is an Aspen, YouTube (Oct. 19, 2019), https://www.youtube.com/watch?v=wKiXdqaY180.
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engaging in violent and disorderly acts has not already caused injury or property
Plus, Defendants would have this Court strike the participle “involving,” and
merge the “violent public disturbance” with “assembly of three or more persons” to
reflect that this is really just the common-law definition of riot. And, in addition to
these edits, Defendants suggest that the Legislature obviously meant to include the
“person” with the “assembly of three or more persons, acting with a common intent
to assist each other in violent and disorderly conduct,” so this Court should just do
their job for them and construe it that way. But see Dimmitt, 985 F.2d at 1572 (“The
task of drafting a constitutionally permissible [statute] must be left to the [state].”).
In short, Defendants’ preferred construction is neither reasonable nor readily
apparent given the plain language of the statute. Instead, it reduces much of the
verbiage to surplusage and invites this Court to fill in the blanks that the Florida
Legislature left behind. To accept that invitation would usurp the powers of the
Florida Legislature. Constitutional avoidance cannot resolve this case nor is the
challenged definition readily susceptible to a reasonable construction that saves it;
this Court must meet the statute’s potential vagueness and overbreadth head on.
Having so concluded, this Court turns to Plaintiffs’ vagueness argument.
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“[A] vague law is no law at all,” as enforcement of a vague law violates our
“twin constitutional pillars of due process and separation of powers.” Davis, 139 S.
Ct. at 2323, 2325. “Vague laws contravene the ‘first essential of due process of law’
that statutes must give people ‘of common intelligence’ fair notice of what the law
demands of them.” Id. at 2325 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385,
391 (1926)) (citations omitted). “[T]he purpose of [this] requirement is to enable the
ordinary citizen to conform his or her conduct to the law.” City of Chicago v.
Morales, 527 U.S. 41, 58 (1999).
Vague laws “also undermine the Constitution’s separation of powers and the
democratic self-governance it aims to protect. Only the people’s elected
representatives in the legislature are authorized to ‘make an act a crime.’ ” Id.
(quoting United States v. Hudson, 7 Cranch 32, 34, 11 U.S. 32 (1812)). But vague
laws may leave “relatively unaccountable police, prosecutors, and judges”
empowered to define crimes, “eroding the people’s ability to oversee the creation of
the laws they are expected to abide.” Id. (citations omitted). See also Smith v.
Goguen, 415 U.S. 566, 572–73 (1974); Grayned, 408 U.S. at 108–09; Papachristou
v. City of Jacksonville, 405 U.S. 156, 162 (1972).
The void-for-vagueness doctrine is based on “at least two connected but
discrete due process concerns: first, that regulated parties should know what is
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required of them so they may act accordingly; second, precision and guidance are
necessary so that those enforcing the law do not act in an arbitrary or discriminatory
way.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). The standard
for vagueness is particularly strict in the context of the First Amendment; “[w]hen
speech is involved, rigorous adherence to those requirements is necessary to ensure
that ambiguity does not chill protected speech.” 26 Id. at 253–54; see also Reno v.
ACLU, 521 U.S. 844, 871–72 (1997) (“The vagueness of [content-based regulations
of speech] . . . raise[s] special First Amendment concerns because of its obvious
chilling effect on free speech.”); Winters v. New York, 333 U.S. 507, 509 (1948) (“It
is settled that a statute so vague and indefinite, in form and as interpreted, as to
permit within the scope of its language the punishment of incidents fairly within the
protection of the guarantee of free speech is void, on its face, as contrary to the
The Supreme Court and the Eleventh Circuit have recognized that “[w]hile
‘perfect clarity and precise guidance have never been required even of regulations
that restrict expressive activity,’ . . . ‘government may regulate in the area’ of First
Governor DeSantis argues that Plaintiffs’ must show that the law at issue is
“impermissibly vague in all of its applications.” ECF No. 99 at 8 (quoting Flipside, 455 U.S. at
494–95). But he misstates the standard for Plaintiffs’ facial attack based on vagueness here. “The
court should then examine the facial vagueness challenge and, assuming the enactment implicates
no constitutionally protected conduct, should uphold the challenge only if the enactment is
impermissibly vague in all of its applications.” Id. at 494–95 (emphasis added). As Plaintiffs show,
this new definition of “riot” implicates constitutionally protected speech, making the “in all of its
applications” requirement irrelevant.
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Amendment freedoms ‘only with narrow specificity.’ ” Wollschlaeger, 848 F.3d at
1320 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989) and NAACP
v. Button, 371 U.S. 415, 433 (1963)). This special sensitivity to vagueness in the
context of freedom of expression exists because “[v]ague laws force potential
speakers to ‘steer far wider of the unlawful zone . . . than if the boundaries of the
forbidden areas were clearly marked,’ thus silencing more speech than intended.”
Id. (quoting Baggett, 377 U.S. at 372) (cleaned up).
As discussed supra, the parties in this case have put forward multiple
interpretations of HB1’s new definition of “riot.” These alternative interpretations
are not simply technically distinct; they result in different meanings of varying
breadth. For example,
• Either the term “participates” requires a person to actively join in a
violent public disturbance or it requires mere passivity—such as
continuing to hold up one’s protest sign or failing to disperse as soon
as violence erupts.
• Either the term “violent public disturbance” means that the protest
already turned violent before the person “willfully participated” or it
means the protest turned violent after she “willfully participated.”
• Either violence must have already occurred objectively, or there need
only be a law enforcement officer’s subjective sense of imminent
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property damage or injury for a protestor to risk arrest and detention
until first appearance.
• Either peaceful protestors effectively have a duty to stop expressing
their views and leave the scene at the first sign of a potential riot, or this
new definition imposes no such duty.
The net effect of these multiple readings of the new definition of “riot” is that
an individual of ordinary intelligence could read the now-modified Section
870.01(2) and not be sure of its real-world consequence. She would not know if this
law meant that she had to merely avoid sharing a common intent to assist two others
in violent and disorderly conduct, or if she had to avoid participating in any public
event where such violent and disorderly conduct could occur. 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. “[A]
vague law is no law at all,” Davis, 139 S. Ct. at 2323, and certainly neither is one
that can lead to multiple opposing interpretations. That type of law is simply “a trap
for the innocent.” United States v. Cardiff, 344 U.S. 174, 176 (1952).
In addition to creating a wide scope of potential interpretations for individuals,
failing to give them reasonable notice, the vagary of this statute empowers law
enforcement officers to exercise their authority in arbitrary and discriminatory ways.
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Because the statute leaves unclear who must share what intent to be arrested, law
enforcement officers, prosecutors, and courts cannot rely, and cannot be held to rely,
on objective standards. Without at least “minimal guidelines,” “a criminal statute
may permit ‘a standardless sweep [that] allows policemen, prosecutors, and juries to
pursue their personal predilections.’ ” Kolender v. Lawson, 461 U.S. 352, 358 (1983)
(quoting Goguen, 415 U.S. at 575); see also United States v. Reese, 92 U.S. 214, 221
(1875) (“It would certainly be dangerous if the legislature could set a net large
enough to catch all possible offenders, and leave it to the courts to step inside and
say who could be rightfully detained, and who should be set at large. This would, to
some extent, substitute the judicial for the legislative department of the
Vague laws “encourage erratic administration whether the censor be
administrative or judicial; ‘individual impressions become the yardstick of action,
and result in regulation in accordance with the beliefs of the individual censor rather
than regulation by law.’ ” Interstate Cir., Inc. v. City of Dallas, 390 U.S. 676, 685
(1968) (quoting Kingsley Int’l Pictures Corp. v. Regents, 360 U.S. 684, 701 (1959)
(Clark, J., concurring in result)). The “impermissible risk of discriminatory
enforcement” due to the beliefs of individual censors is particularly concerning in
this context, “for history shows that speech is suppressed when either the speaker or
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the message is critical of those who enforce the law.” Gentile v. State Bar of Nev.,
501 U.S. 1030, 1051 (1991) (citations omitted).
Governor DeSantis cannot credibly argue that this new definition of “riot”
was not intended to empower law enforcement officers against those who may
criticize their legal authority, as he has referred to the proposed legislation that led
to HB1 as “the strongest anti-rioting, pro-law enforcement piece of legislation in the
country,” ECF No. 65 at 4 n.5, and referred to HB1’s critics as “anti-police,” id. at
23 n.17. Governor DeSantis further “promised to have ‘a ton of bricks rain down
on’ ” those who violate the law when he unveiled HB1’s preceding proposed
legislation. ECF No. 65 at 4 n.4. Through this new definition of “riot,” he appears to
have done just that, using a threat of selective enforcement as his rain clouds.
To recap, HB1’s new definition of “riot” both fails to put Floridians of
ordinary intelligence on notice of what acts it criminalizes and encourages arbitrary
and discriminatory enforcement, making this provision vague to the point of
unconstitutionality. It requires individuals to “speculate as to the meaning of penal
statutes,” at the risk of their liberty. Lanzetta v. State of New Jersey, 306 U.S. 451,
“When Congress passes a vague law, the role of courts under our Constitution
is not to fashion a new, clearer law to take its place, but to treat the law as a nullity
and invite Congress to try again.” Davis, 139 S. Ct. at 2323. While it is not Congress
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that authored this statute, the same principle applies; this Court’s role is not to
remedy the Florida Legislature’s mistake, but to give the Legislature the opportunity
to do so itself. Accordingly, I conclude that Plaintiffs have shown a substantial
likelihood of success as to their claim that section 870.01(2) is unconstitutionally
vague in violation of the 14th Amendment.
This Court turns next to Plaintiffs’ second argument, overbreadth. As
explained above, the overbreadth doctrine loosens the rules typically governing
facial attacks on the constitutionality of a statute. Valencia Coll., 903 F.3d at 1232.
The exception exists because “the threat of enforcement of an overbroad law may
deter or ‘chill’ constitutionally protected speech—especially when the overbroad
statute imposes criminal sanctions.” Hicks, 539 U.S. at 119.
To prevail on their overbreadth claim, Plaintiffs must show that section
870.01(2) “punishes a ‘substantial’ amount of protected free speech, ‘judged in
relation to the statute’s plainly legitimate sweep.’ ” Id. at 118–19. “Substantial
overbreadth” is not “readily reduced to an exact definition.” Members of City
Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984). But the
Supreme Court has recognized that “the mere fact that one can conceive of some
impermissible applications of a statute is not sufficient to render it susceptible to an
overbreadth challenge.” Id. So the question is not whether this Court can conceive
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of any hypothetical situation in which section 870.01(2) would violate the
Constitution. Instead, this Court must ask whether section 870.01(2) prohibits a
substantial amount of activity protected by the First Amendment relative to the
amount of unprotected activity it prohibits.
The first step, then, is to figure out what the statute prohibits. Williams, 553
U.S. at 293. At this step, this Court “should, of course, construe the statute to avoid
constitutional problems, if the statute is subject to such a limiting construction.” New
York v. Ferber, 458 U.S. 747, 769 n.24 (1982). But this Court cannot twist itself into
a pretzel to save an otherwise invalid statute. See Boos, 485 U.S. at 330 (“[F]ederal
courts are without power to adopt a narrowing construction of a state statute unless
such a construction is reasonable and readily apparent.”). Assuming the statute is not
subject to a limiting construction, the next question is whether the statute
“criminalizes a substantial amount of protected expressive activity.” Williams, 553
U.S. at 297. “In making that determination, a court should evaluate the ambiguous
as well as the unambiguous scope of the enactment.” Flipside, 455 U.S. at 495 n.6.
If the statute is overbroad, this Court must ask whether it can sever the problematic
provision from the rest of the statute. Ferber, 458 U.S. at 769 n.24.
First, as explained above, the statute is vague because it is subject to multiple
reasonable constructions. It is also not subject to a limiting construction. Second,
considering the statute’s ambiguous scope, it is overbroad. To be sure, the statute
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criminalizes a large amount of unprotected activity. But, in its ambiguity, it also
consumes vast swaths of core First Amendment speech. Because it is unclear
whether a person must share an intent to do violence and because it is unclear what
it means to participate, the statute can plausibly be read to criminalize continuing to
protest after violence occurs, even if the protestors are not involved in, and do not
support, the violence. The statute can also be read to criminalize other expressive
activity, like remaining at the scene of a protest turned violent to film the police
reaction. See Toole v. City of Atlanta, 798 F. App’x 381, 388 (11th Cir. 2019)
(explaining that persons have a clearly established First Amendment right to
peacefully protest and to film police).
That is not to say that the police cannot order protestors to leave once violence
occurs. See Bell v. Keating, 697 F.3d 445, 457 (7th Cir. 2012) (“It is well established
that otherwise protected speech may be curtailed when an assembly stokes—or is
threatened by—imminent physical or property damage.”). But there is a world of
difference between the law addressed in Bell, which criminalized defying a lawful
dispersal order, and section 870.01(2). Section 870.01(2) appears to criminalize
mere presence and nothing more. Not disobeying a lawful order, not obstructing
justice, not actively joining in violent or destructive conduct—mere presence. Thus,
through section 870.01(2), protestors could be held criminally liable for others’
violent acts. Such “guilt by association is a philosophy alien to the traditions of a
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free society . . . and the First Amendment itself.” NAACP v. Claiborne Hardware
Co., 458 U.S. 886, 932 (1982).
That said, there can be no doubt, overbreadth is “strong medicine” that must
be employed sparingly. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). But here
we are not dealing with marginal cases. As Plaintiffs’ unrebutted evidence makes
clear, through no fault of Plaintiffs, violence often occurs at their protests. Agitators
and white supremacists have spit on and attacked Plaintiffs’ members at protests.
ECF No. 65-3 ¶ 15; ECF No. 65-4 ¶ 28. Individuals have also attempted to drive
their vehicles through groups of protestors or pulled a gun on protesters. ECF No.
65-1 ¶¶ 28–29. Plus, on three occasions, white supremacists hounded Plaintiff
Northside Coalition’s protests, and even expressed confidence that HB1 endorsed
their actions. ECF No. 65-7 ¶¶ 20–22. As these incidents demonstrate, it
unfortunately takes only a handful of bad actors to transform a peaceful protest into
a “violent public disturbance.”
If this Court does not enjoin the statute’s enforcement, the lawless actions of
a few rogue individuals could effectively criminalize the protected speech of
hundreds, if not thousands, of law-abiding Floridians. This violates the First
Amendment. See, e.g., Bible Believers v. Wayne Cnty., Mich., 805 F.3d 228, 252
(6th Cir. 2015). Florida’s interest in preventing public violence is beyond question,
but when that interest collides with rights guaranteed by the First Amendment, the
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“government may regulate in the area only with narrow specificity.” Button, 371
U.S. at 433. Otherwise, those rights, which “are delicate and vulnerable, as well as
supremely precious in our society,” may be suffocated. Id. Section 870.01(2),
through its ambiguity, chills speech and eviscerates that essential breathing space.
The law is overbroad. 27 Accordingly, I conclude that Plaintiffs have established a
substantial likelihood of success on the merits as to their overbreadth claim.
The remaining preliminary injunction factors are thoroughly intertwined with
considerations already discussed regarding the merits of Plaintiffs’ claims. On
balance, these factors weigh in favor of granting Plaintiffs’ motion for preliminary
First, irreparable injury. This Court can only grant Plaintiffs’ motion for
injunctive relief if “irreparable injury will be suffered unless the injunction issues.”
Siegel, 234 F.3d at 1176. And because “the very idea of a preliminary injunction is
premised on the need for speedy and urgent action to protect a plaintiff’s rights,” the
injury must be “imminent.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248
(11th Cir. 2016).
The third, and final, issue in the overbreadth analysis is severability. Because, as
discussed more in depth below, Plaintiffs only ask this Court to enjoin section 870.01(2)’s
enforcement, this Court need not address severability at this stage.
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Here, Governor DeSantis argues (1) that “Plaintiffs do not demonstrate that
they will suffer any injury” and (2) that “even if Plaintiffs faced such an injury, their
significant delay in seeking an injunction demonstrates it is not imminent.” ECF No.
99 at 26–27 (emphasis in original).
The first argument merits little discussion. As this Court discussed at length
in its 72-page order on Defendants’ motions to dismiss, Plaintiffs sufficiently alleged
injury at the pleading stage. See generally ECF No. 90. Now, as discussed at length
above, at the preliminary-injunction stage, Plaintiffs have shown a First Amendment
injury. That some members of a Plaintiff organization participated in a holiday
celebration—as distressing as that may be to the Governor—changes nothing. In
short, Plaintiffs have demonstrated that their speech has been, and is being, chilled
by section 870.01(2). In addition, Plaintiffs have demonstrated that they have had to
divert their scarce resources from organizing around other issues to educating their
members and the public about the inherent risks of protesting under this new law.
“An ongoing violation of the First Amendment constitutes an irreparable injury.” FF
Cosms. FL, Inc. v. City of Miami Beach, 866 F.3d 1290, 1298 (11th Cir. 2017). I
conclude that Plaintiffs have suffered and are suffering an irreparable injury.
Plaintiffs’ delay in bringing their motion for preliminary injunction does not
dictate otherwise. Roughly three months passed from the day Governor DeSantis
signed HB1 to the day Plaintiffs filed their motion for preliminary injunction.
Case 4:21-cv-00191-MW-MAF Document 137 Filed 09/09/21 Page 80 of 90
Although “[a] delay in seeking a preliminary injunction of even only a few months
. . . militates against a finding of irreparable harm,” such delay is not determinative.
Wreal, 840 F.3d at 1248. Indeed, as the Governor acknowledged, “delay is but one
factor in the irreparable harm analysis.” RoDa Drilling Co. v. Siegal, 552 F.3d 1203,
1211 (10th Cir. 2009); Cuviello v. City of Vallejo, 944 F.3d 816, 833 (9th Cir. 2019);
see also Ideal Indus., Inc. v. Gardner Bender, Inc., 612 F.2d 1018, 1025 (7th Cir.
1979) (explaining there is no “general rule that irreparable injury cannot exist if the
plaintiff delays in filing its motion for a preliminary injunction.”). Generally, each
case hinges on the reason for the delay. Some cases have held a two-year delay
excusable. See Arc of Cal. v. Douglas, 757 F.3d 975, 990–91 (9th Cir. 2014). Others
have held a five-month delay inexcusable. See Wreal, 840 F.3d at 1248.
The Governor’s suggestion to the contrary notwithstanding, delay is less
probative in the context of continuing injuries—especially constitutional injuries.
Cuviello, 944 F.3d at 833. Moreover, the Governor cites zero cases in support of his
attempt to stretch Plaintiffs’ delay by arguing that Plaintiffs should have been ready
to go on day one because they knew HB1 would pass.
At the hearing, Plaintiffs explained that their delay stemmed from the time it
took them to consider their options, prepare their lawsuit, and prepare their motion.
I find Plaintiffs’ explanation well founded. See Georgia v. United States, 398 F.
Supp. 3d 1330, 1347 (S.D. Ga. 2019) (“The Court considers that roughly two-and80
Case 4:21-cv-00191-MW-MAF Document 137 Filed 09/09/21 Page 81 of 90
a-half-month period to be a reasonable time for Plaintiffs to consider their options
under the [the relevant law] and decide to prepare for and pursue injunctive relief . .
. .”). And Plaintiffs had good cause to move slowly, Defendants—as they should—
have vigorously challenged Plaintiffs on every issue, holding them strictly to their
burden at each stage. Indeed, moving quickly has its own risks; in a parallel case in
which the plaintiffs moved much faster, the court denied the plaintiffs’ motion for a
temporary restraining order as insufficiently briefed. See Legacy Ent. & Arts Found.,
Inc. v. Mina, No. 6:21-cv-698-PGB-DCI, 2021 WL 2907722, at *2 (M.D. Fla. May
18, 2021). 28
And this is no simple case. A point that is perhaps best demonstrated by
comparing this case to Study Edge, LLC v. Skoolers Tutoring Center, which
Governor DeSantis cited at the hearing. No. 1:17cv76-MW/GRJ, 2017 WL 6994563
(N.D. Fla. Dec. 8, 2017). Study Edge, like many of the cases addressing delay, was
a copyright infringement case. Id. at *1. It was much simpler than the complex
constitutional litigation presented here. Additionally, the plaintiff in Study Edge
As Governor DeSantis points out, the court dismissed this case just days ago because it
found the plaintiffs had failed to establish standing to sue. ECF No. 127-1. It limited its holding
“to the extremely narrow issue of whether these particular Plaintiffs have standing to sue in this
particular case.” Id. at 13. This Court is not familiar with the record in the case, but it has no
quarrel with the ruling as it relates to the specific facts that were deemed insufficient to support
the plaintiffs’ standing to proceed before the District Court in the Middle District of Florida.
However, this Court has carefully considered the district court’s order and, for the reasons
discussed at length above, this Court respectfully disagrees with its conclusion that the statute is
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waited seven months, more than twice as long as the plaintiffs here, to bring its
motion for preliminary injunction. Id. at *5. And, most importantly, the plaintiff in
Study Edge “sought to enjoin distribution of spring 2017 materials—a semester that
ended long before [it] moved for a preliminary injunction.” Id. (emphasis deleted).
Compared to the plaintiff in Study Edge, the Plaintiffs moved at least twice as
fast, are suffering continuing constitutional injuries, and have offered a reasonable
explanation for their delay. There is no comparison; Plaintiffs have not unduly
delayed. The irreparable injury factor weighs in favor of an injunction.
The final two factors for a preliminary injunction—damage to the opposing
party and the public interest—are consolidated when the injunction is to be issued
against the government. See Otto, 981 F.3d at 870; Scott v. Roberts, 612 F.3d 1279,
1280 (11th Cir. 2010) (“When the state is a party, the third and fourth [preliminary
injunction] considerations are largely the same.”).
Governor DeSantis contends that enjoining the enforcement of section
870.01(2) would “severely curtail the State’s ability to deter and prosecute violent
demonstrations to protect public safety and private property.” ECF No. 99 at 30.
Thus, Governor DeSantis argues, the state will suffer, and the public interest will be
thwarted if this Court were to enjoin Defendants from enforcing section 870.01(2).
Id. This Court disagrees.
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Even if this Court enjoins Defendants from enforcing section 870.01(2), the
Governor still has the power to take any measures to prevent overt threats of violence
or violence, § 14.022(1), Fla. Stat., and to declare that a danger exists to the person
or property of any citizen or citizens of the state and order any sheriff to exercise
their full powers to suppress riots, § 14.022(3)(b), Fla. Stat. Indeed, the sheriffs are
directed to suppress riots in their counties “with force and strong hand when
necessary.” § 30.15(1)(f), Fla. Stat. An injunction preventing the Defendants from
using the new definition of “riot” does not prevent them from suppressing riots;
rather they merely cannot employ the new definition of a riot, and must rely instead
on the common-law definition, as they have in the past. This option precludes any
argument that Defendants will be harmed by the injunction, especially given the fact
that they have repeatedly argued that the new definition of riot contained in section
870.01(2) merely mirrors or clarifies the common-law definition of riot.29
Moreover, state law enforcement officers have numerous criminal statutes at
their disposal that prohibit and punish unlawful conduct, and which protect public
safety and private property. This non-exhaustive list includes, but is not limited to,
As this Court has noted throughout this Order, Governor DeSantis and Sheriff Williams
both argued at length in their papers that the new definition merely mirrors or codifies the commonlaw definition of riot. Governor DeSantis then retreated from that position at the hearing in
asserting that, instead of codifying the definition, it clarified the definition. Regardless of whether
the new definition is an attempt to codify the common-law definition or an attempt to clarify it, I
conclude that the definition is still vague and overbroad.
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Disorderly Conduct, § 877.03, Fla. Stat.; Affray, § 877.01(1), Fla. Stat.; Criminal
Mischief, § 806.13, Fla. Stat.; Arson, § 806.01, Fla. Stat.; Fire bombs, § 806.111,
Fla. Stat.; Assault, § 784.011, Fla. Stat.; Aggravated Assault, § 784.021, Fla. Stat.;
Battery and Felony Battery, § 784.03, Fla. Stat.; Aggravated Battery, § 784.045, Fla.
Stat.; Assault or Battery on Law Enforcement, § 784.07, Fla. Stat.; Assault or Battery
on Person 65 or Older, § 784.08, Fla. Stat.; Trespassing §§ 810.08–09, Fla. Stat.;
Burglary, § 810.02, Fla. Stat.; Mob Intimidation, § 784.0495, Fla. Stat.; Resisting
Officer With Violence, § 843.01, Fla. Stat.; Resisting Officer Without Violence, §
843.02, Fla. Stat.; Obstruction by Disguised Person, § 843.03, Fla. Stat.; Unlawful
Assemblies, § 870.02, Fla. Stat.; and Destroying/Demolishing Memorial or Historic
Property, § 806.135, Fla. Stat.30
On the flip side, the public and the state have no interest in enforcing a likely
unconstitutional statute. Odebrecht Const., Inc. v. Sec’y, Fla. Dep’t of Transp., 715
F.3d 1268, 1289 (11th Cir. 2013) (“[t]he public has no interest in the enforcement of
what is very likely an unconstitutional statute.”); KH Outdoor, LLC v. City of
Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006) (“As noted, even a temporary
One could also argue that enjoining the enforcement of the new definition of riot does
not prevent prosecution under section 870.01(2), because the statute is divided into two categories.
It defines “riot” and then criminalizes it. This Court is merely enjoining the enforcement of the
new definition of riot; it is not decriminalizing rioting as understood at common law. However,
this Court need not decide whether this argument is persuasive or whether the statute is enforceable
without the new definition of riot because the State has plenty of other tools in its arsenal to
maintain public order and punish criminal conduct.
Case 4:21-cv-00191-MW-MAF Document 137 Filed 09/09/21 Page 85 of 90
infringement of First Amendment rights constitutes a serious and substantial injury,
and the city has no legitimate interest in enforcing an unconstitutional ordinance.
For similar reasons, the injunction plainly is not adverse to the public interest. The
public has no interest in enforcing an unconstitutional ordinance.”).
Balancing, on one hand, the fact that Defendants may still protect private
property and public safety using the numerous tools at their disposal, and, on the
other hand, the state and the public’s lack of interest in enforcing a statute that is
likely unconstitutional, this Court finds that the final two factors weight in favor of
granting a preliminary injunction.
Before proceeding any further, this Court makes plain what it is not doing. It
is not striking the definition of “riot” from the Florida Statutes. Nor is it enjoining
all law enforcement agencies across the state from enforcing this specific law.
Instead, this Court is granting the narrow relief of enjoining the Governor and three
sheriffs from enforcing Florida’s law against “rioting” as defined by section
Additionally, this Court notes that while Plaintiffs assert the Governor’s
timing in announcing the legislation that ultimately became HB1 suggests that this
new definition is in response to the racial justice protests that occurred during the
summer of 2020, it is not lost on this Court, nor should it be lost on the public, that
this statute sweeps in all manner of conduct and speech, regardless of the point of
Case 4:21-cv-00191-MW-MAF Document 137 Filed 09/09/21 Page 86 of 90
view of the speaker or the cause he or she may be advocating. This definition of
“riot” casts a broad net. Though Plaintiffs claim that they and their members fear
that it will be used against them based on the color of their skin or the messages that
they express, its vagueness permits those in power to weaponize its enforcement
against any group who wishes to express any message that the government
disapproves of. See Gentile, 501 U.S. at 1051 (“[H]istory shows that speech is
suppressed when either the speaker or the message is critical of those who enforce
the law.”). Thus, while there may be some Floridians who welcome the chilling
effect that this law has on the Plaintiffs in this case, depending on who is in power,
next time it could be their ox being gored.
Finally, this Court recognizes that much ink has been spilled over whether this
definition is simply a restatement of the common-law definition of riot. For the
reasons discussed above, it is not. But this Court is certain that had the Florida
Legislature simply codified the definition that the Florida Supreme Court announced
in the Beasley case, Plaintiffs’ claims would likely fail. This Court is also not saying
that the Florida Legislature is unable to expand upon the common-law definition of
a riot, or that it is not allowed to enhance the crime, or that it cannot enact tougher
penalties for rioting. It is the Florida Legislature’s prerogative to enact such policies.
But it must do so within the bounds of the Constitution. In this case, it has failed to
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Plaintiffs have demonstrated that they are entitled to a preliminary injunction.
In their requested relief, Plaintiffs seek to enjoin the enforcement of Section 15 of
HB1. ECF No. 64 ¶ 6. However, Section 15 is part of a bill that amended section
870.01. This Court cannot enjoin the enforcement of a bill; rather, it can enjoin
parties from enforcing a statute. And so, Plaintiffs’ requested relief can be construed
as enjoining the enforcement of section 870.01 as amended by Section 15. After
questioning by this Court during the preliminary injunction hearing, Plaintiffs
clarified that they only seek to enjoin Defendants from enforcing the new definition
of “riot” in section 870.01(2). 31
Even if Plaintiffs did not narrow their requested relief, this Court can tailor
the remedy as it sees fit and need not grant the total relief sought by Plaintiffs. When
“the court decides to grant an injunction, it must also ascertain what relief to provide,
keeping in mind that the purpose of the injunction is not to conclusively determine
the rights of parties, but to balance the equities in the interim as the litigation
proceeds.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1327 (11th Cir.
2019) (citation omitted). “So it is axiomatic that a district court ‘need not grant the
In their papers, Plaintiffs argued that the definition of riot is not severable from the
remainder of section 870.01, Florida Statutes, as amended by Section 15. Therefore, Plaintiffs
sought to enjoin the enforcement of the entirety of section 870.01, Florida Statutes, as amended by
Section 15. However, considering severance at this juncture is likely premature, because this Court
is not invalidating the challenged law. See Scott, 612 F.3d at 1297. Accordingly, this Court will
not pass on the issue of severability at this time.
Case 4:21-cv-00191-MW-MAF Document 137 Filed 09/09/21 Page 88 of 90
total relief sought by the applicant but may mold its decree to meet the exigencies of
the particular case.’ ” Id. (citation omitted). Based on these principles, this Court
enjoins Defendants from enforcing the new definition of “riot” contained in section
Having determined a preliminary injunction is warranted, this Court next
addresses whether it will stay that injunction pending appeal. Stays pending appeal
are governed by a four-part test: “(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding; and (4) where the public interest
lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also Venues Lines Agency
v. CVG Industria Venezolana De Aluminio, C.A., 210 F.3d 1309, 1313 (11th Cir.
2000) (applying the same test). Considering that this test is so similar to that applied
when considering a preliminary injunction, courts rarely stay a preliminary
injunction pending appeal. That rings true here. Because no exceptional
circumstances justify staying this Order pending appeal, see Brenner v. Scott, 999 F.
Supp. 2d 1278, 1292 (N.D. Fla. 2014) (Hinkle, J.) (issuing a rare stay of a
preliminary injunction given the public interest in stable marriage laws across the
country), this Court refuses to do so. Defendants have every right to appeal, and this
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Court sees no reason to delay Defendants in seeking an appeal by requiring them to
file a motion to stay with this Court under Rule 62.
Though what’s past is prologue, this Court need not give it any power beyond
providing context for the case now before it. A critical part of that context, which
has not yet been discussed, is that following Ms. Jakes’s, Ms. Patterson’s, and the
1961 Freedom Riders’ arrests under Florida’s anti-riot laws, the rule of law
ultimately prevailed. Katzenbach v. McClung, 379 U.S. 294 (1964); Browder v.
Gayle, 142 F. Supp. 707 (M.D. Al. 1956), aff’d 352 U.S. 903 (1956); see also Batson
v. Kentucky, 476 U.S. 79 (1986); Loving v. Virginia, 388 U.S. 1 (1967); Harper v.
Va. State Bd. of Elections, 383 U.S. 663 (1966); Verdict, Minnesota v. Chauvin, No.
27-CR-20-12646 (Minn. Dist. Ct. April 20, 2021). And so too, with this Court, the
rule of law prevails.
IT IS ORDERED:
1. Plaintiffs’ motion for preliminary injunction, ECF No. 64, is GRANTED in
part and DENIED in part. The motion is DENIED as moot with respect to
Defendant Moody. The motion is GRANTED with respect to Defendants
DeSantis, McNeil, Tony, and Williams.
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2. Defendants must take no steps to enforce Florida Statutes § 870.01(2) (2021)
as it pertains to the definition of “riot,” until otherwise ordered. This
preliminary injunction binds Defendants DeSantis, McNeil, Tony, and
Williams and their officers, agents, servants, employees, and attorneys—and
others in active concert or participation with any of them—who receive actual
notice of this injunction by personal service or otherwise.
3. This injunction is effective immediately, without the posting of security, but
Defendants may seek an order requiring the posting of security.
SO ORDERED on September 9, 2021.
s/Mark E. Walker
Chief United States District Judge
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