Protesters arrested in Florida could face the harshest punishments in the nation if a new proposal from Gov. Ron DeSantis becomes law.
The sweeping policy changes would make felonies out of participating in protests that result in property damage or blocking roads, and anyone who organizes or donates money to protesters would risk to liability under the state’s racketeering laws.
At the same time, it would grant protections to people who drive cars into crowds of protesters, even if someone is injured or killed — an “invitation to homicide,” one veteran defense lawyer said. It also threatens to cut state funding to local governments that shrink law enforcement budgets and makes it easier to sue them over property damage related to protests.
“This is a bald-faced, full-frontal assault on the First Amendment by this administration,” said Melba Pearson, a former Miami-Dade prosecutor and current policy director at the Center for the Administration of Justice at Florida International University. “It’s completely unconstitutional. … This can’t pass and if it does pass, it’s going to be tied up in lawsuits for the foreseeable future.”
Florida could become just the second state to pass laws enhancing criminal penalties against disruptive protesters since the summer, when the killing of George Floyd by Minneapolis police sparked nationwide unrest and demonstrations against police brutality.
Tennessee’s Republican Gov. Bill Lee, following weeks of protests outside the state capitol building in Nashville, called a special session last month and signed into law changes that intensify legal punishments for several actions associated with the protests, including making it a felony to camp on state property. It was widely criticized because in Tennessee, people convicted of felonies lose their voting rights, meaning those most vocal about reform could also be blocked at the ballot box in the future.
DeSantis’ proposal goes even further than the new Tennessee law, said Kate Ruane, senior legislative council for the American Civil Liberties Union.
The full legislative text that lawmakers would vote on has not been made public, but DeSantis held a press conference Monday in Polk County detailing the plan and issued a summary of its main points.
“The summary appears incredibly harsh and comprehensive in the number of ways that it seeks to send the message to protesters — especially protesters demanding for divestment and defunding of local law enforcement and of police — that the governor does not want to hear their message and will instead punish them for expressing it in any way that the state can,” Ruane said.
DeSantis announced his proposal alongside more than a dozen law enforcement leaders from across the state, including Polk County Sheriff Grady Judd and police chiefs from Lakeland, Clermont and Eustis.
Judd questioned why more governors had not taken similar stands.
“For everyone across the United States today, this is what leadership looks like,” Judd said. “So I ask the other states: Where’s your governor? Where’s your speaker of the House? Where’s your president of the Senate? Why aren’t they standing together? This is remarkable.”
On Tuesday, DeSantis urged Republican lawmakers to quickly enact the measures in November ahead of the normal legislative session set to begin in March.
‘Potential for mischief and abuse’
Someone convicted of participating in “violent or disorderly assemblies” would face life-altering consequences if DeSantis’ proposals are adopted: a mandatory minimum of six months in jail, the loss of benefits like food stamps or unemployment assistance, and ineligibility for employment by state and local governments.
The result would be a “chilling effect” on peaceful protests and could lead to self-censorship, said Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida. The concept of “disorderly assembly” is very broad, Calvert argues, creating the potential for police to abuse their discretion.
Would-be protesters “may fear what they will be doing will be perceived as illegal,” Calvert said. “Rather than risk enhanced punishment, they won’t engage in activities that might otherwise be lawful.”
DeSantis also proposed providing immunity for drivers who cause injury or death “if fleeing for safety from a mob,” a change that Calvert called “inherently dangerous.”
“We’ve already seen cars driving through protests,” he said. “It’s probably supposed to sound like self-defense, but it clearly has the potential for mischief and abuse.”
Orlando defense attorney Roger Weeden said the provision would “give a license” to a person like James Alex Fields Jr., the white supremacist who drove his car into a crowd of anti-racism demonstrators in Charlottesville, Va., in 2017, killing one woman and injuring dozens of others.
At his trial, Fields‘ attorney told jurors he “felt he was in danger” when he plowed into the crowd.
Weeden said the provision goes beyond Florida’s controversial “stand your ground” law, which allows people to use deadly force if they think they’re in danger of being killed or seriously injured.
“It’s ‘stand your ground’ on steroids,” he said. “It’s an invitation to homicide.”
Weeden represented more than a dozen protesters who were arrested this summer at Orlando demonstrations against police brutality in the wake of George Floyd’s killing. More than 100 people were jailed on misdemeanors or ordinance violations, though nearly 80 later had those charges dropped, including some of Weeden’s clients.
Weeden said most of his clients were able to bond out of jail quickly after being arrested for disorderly conduct. DeSantis’ proposal prohibits defendants from posting bail before their first court appearance if they’re charged with a crime related to a “violent or disorderly assembly.”
Under Florida law, people are entitled to be released from jail before trial under “reasonable conditions,” such as bond, unless they face a possible life sentence and strong evidence of guilt. But DeSantis’ proposal calls for establishing a presumption against bond for arrested protesters, meaning they’d have to convince a judge they should be released.
Pearson, who unsuccessfully ran for Miami-Dade State Attorney this year as a Democrat on a criminal justice reform platform, argued the governor’s real goal is to dissuade people from challenging excessive force by police.
In response to criticisms, the governor’s office said the measures “are not meant to discourage peaceful assembly or freedom of speech, both of which are constitutional rights the Governor clearly supports.”
“These measures are meant to discourage agitators who use these rights as cover to engage in violence and disrupt Florida’s communities,” spokesman Cody McCloud said.
While most of the protests that sprung up across the country after Floyd’s killing remained peaceful, some, in cities like Minneapolis, Portland and Louisville, ended with buildings set on fire and businesses looted.
“I will not allow this kind of violence to occur here in Florida,” DeSantis said Monday.
But even as protests took place in Florida cities over the summer, demonstrations here lacked widespread or sustained violence or looting.
In a statement, Mitch Stone, president of the Florida Association of Criminal Defense Lawyers, noted that “there are laws currently on the books that prohibit violence, the destruction of property and attacks on law enforcement officers.”
“Non-violent protest will be impacted if this proposal becomes law,” Stone said. “Parading on streets, assembling at all hours, sit ins, and other non-destructive activities can be interpreted as violating the laws contemplated by this proposal.”
Activists, Dems vow to fight
Local organizers describe the proposed legislation as an aggressive move meant to scare protesters and curry political favor before a pivotal election.
“Proposed legislation like this further moves us to becoming a more fascist state,” said Maxwell Frost, an organizer with March For our Lives and The People 407. “… It’s a tragedy to our democracy and what this country supposedly stands for.”
The bill would keep potential protesters from exercising their First Amendment rights and potentially expose them to COVID-19 in overcrowded jails with few protections against the virus’ spread, said Frost and Anthony Roberts, who goes by AmpDaTruth and leads the Reach Party protest group.
Both organizers were arrested on disorderly conduct charges during protests in July. Frost’s charge was dropped, but the case against AmpDaTruth, who was also accused of battery on law enforcement and resisting arrest, is still pending.
“We already have charges for these things. We have a lot of laws protecting law enforcement, why do we need more?” AmpDaTruth asked.
In addition to establishing an upgraded penalty for battering law enforcement during a violent or disorderly assembly, DeSantis has proposed subjecting “anyone who organizes or funds” such an assembly to the state’s Racketeer Influenced and Corrupt Organization (RICO) Act, typically used to go after gangs and drug cartels.
In addition to severe financial penalties, violations of Florida’s RICO act are punishable by up to 30 years in prison. McCloud confirmed Wednesday that the governor intends for organizers of disorderly assemblies to face “civil and criminal” liability under the RICO law, adding that “[f]urther details will be worked out with the legislature.”
Weeden said the proposals would allow police to wage “open war on protesters.”
Demonstrating is one of the few accessible ways members of minority groups are empowered to raise concerns about issues in their communities, and this bill disproportionately targets them, Frost said.
“[The bill] is another deterrent to say, ‘If you come out, we might place a felony on you, and your already difficult life is going to be made even more difficult if you come out to make a difference in your society and your country,'” he said.
The bill also functions as a voter suppression tool, Frost said. Under its terms, protesters could receive felony convictions and be banned from voting until their sentence is complete and all fines and fees are paid.
“We have to do everything we can to fight against it,” Frost said.
Democratic lawmakers and civil rights leaders from across the state decried DeSantis’ proposal, questioning why protests would be his priority, when thousands of Floridians have died of COVID-19, the state has not passed a pandemic relief plan as the economy and unemployment system continue to struggle.
“He doesn’t want us to actually address his terrible track record … so he’s using law and order as an election stunt to distract,” said state Rep. Anna Eskamani, D-Orlando, at a virtual press conference Tuesday.
Rep. Shevrin Jones, D-West Park, said the proposal is “actively undermining the Constitution” and the way the nation has been shaped, noting that Black people and women earned the right to vote through protesting.
“We’re going to fight this tooth and nail,” Jones said. “To the governor, with all due respect sir: You’ve just declared war on our civil rights. We are prepared to strap up our boots, in the spirit of John Lewis, and get in some good trouble.”
dstennett@orlandosentinel.com