TALLAHASSEE, Fla. - A federal appeals court Tuesday turned to the Florida Supreme Court for help as it considers the constitutionality of a 2021 state law that enhanced penalties and created new crimes in protests that turn violent.
A three-judge panel of the 11th U.S. Circuit Court of Appeals sent the case to the Florida court because of what it called a "novel" issue — how to determine the meaning of the word "riot" in the law.
"The proper interpretation of the statutory definition is a novel issue of state law that the Florida Supreme Court has yet to address," the panel said in a 29-page decision. "After careful consideration, we exercise our discretion to certify a question to that (Supreme) Court to determine precisely what conduct the definition prohibits."
The move came as the panel considered a state appeal of a 2021 decision by Chief U.S. District Judge Mark Walker to issue a preliminary injunction against the law. Walker described the law as unconstitutionally "vague and overbroad."
Gov. Ron DeSantis led efforts to pass the law after nationwide protests following the 2020 death of George Floyd, a Black man who was killed by a Minneapolis police officer. Dubbed the "Combating Public Disorder" law, the measure included a series of steps aimed at cracking down on protests that become violent.
But groups such as the Dream Defenders and the Florida State Conference of the NAACP challenged the law (HB 1), arguing that it would have a chilling effect on First Amendment rights. Walker issued a 90-page ruling that pointed to vagueness in the measure.
"Though plaintiffs claim that they and their members fear that it (the law) 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," Walker wrote. "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."
The panel of the Atlanta-based appeals court heard arguments last March in the state’s appeal of the preliminary injunction. But in Tuesday’s decision, it said it was deferring a ruling on the preliminary injunction until after the Florida Supreme Court can weigh in on the definition of riot.
In passing the measure, the Legislature changed a law that barred riots. The revamped law says 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, resulting in injury to another person, damage to property or imminent danger of injury to another person or damage to property."
The appeals court said plaintiffs, for example, have argued that the law does not define what it means to participate in a violent public disturbance.
"According to the plaintiffs, every person present could be arrested and charged with rioting because each willfully participated in the protest, which became a violent disturbance — even those who did not engage in any violence or disorderly conduct themselves," Tuesday’s decision said. "The plaintiffs express concern that protesters could be charged with rioting if they remained on the scene after violence erupted and continued to protest, assisted those who were injured or filmed the events."
But attorneys for DeSantis disagreed with that hypothetical situation, the appeals court said.
"The governor argues that a nonviolent demonstrator cannot be considered as willfully participating in a violent public disturbance simply because violence occurs among others who are in close proximity," said the decision, written by Judge Jill Pryor and joined by Judges Elizabeth Branch and Ed Carnes.
While such moves are unusual, the federal appeals court at times sends cases to the Florida Supreme Court to help sort out the wording of state laws — a move known as certifying a question. For example, the appeals court in 2021 looked to the state court in a challenge to a credit-card fee for red-light camera violations.
"Certification in this circumstance (the protest law case) allows us to avoid the friction that could arise if we, as a federal court, addressed the merits of the plaintiffs’ pre-enforcement constitutional challenge without first giving the Florida Supreme Court an opportunity to interpret its state’s law," Tuesday’s decision said.