Ron DeSantis, Governor v. Dream DefendersRon DeSantis, Governor v. Dream Defenders
Today we answer a certified question from the United States Court of Appeals for the Eleventh Circuit about the meaning of Florida‘s law prohibiting riot, section 870.01(2), Florida Statutes (2021).1 At bottom, the question is whether that law applies to a person who is present at a violent protest, but neither engages in, nor intends to assist others in engaging in, violent and disorderly conduct. And the answer is: no, it does not.
I
As we shall explain, riot has been illegal under Florida law since our first year as a United States territory. But to recount how this particular case came our way, we begin in 1967, when an amendment to the statute that then criminalized riot omitted a formal definition of the term. See ch. 67-407, § 1, Laws of Fla. (amending
The term “riot” at common law is defined as 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.
317 So. 2d 750, 752 (Fla. 1975) (citations omitted). Addressing a First Amendment challenge to the riot statute, we said that it passed constitutional muster because it required the State to prove “each of the common law elements” of the historic crime: “that 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.
In 2021, the Legislature passed the “Combatting Violence, Disorder, and Looting, and Law Enforcement Protection Act,” or Florida House Bill 1 (HB 1). See ch. 2021-6, § 15, Laws of Fla. Among other things,2 HB 1 amended section 870.01(2), Florida Statutes (2020), to define the crime of “riot“:
A person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct, resulting in:
(a) Injury to another person;
(b) Damage to property; or
(c) Imminent danger of injury to another person or damage to property.
Soon after HB 1 took effect, a group of plaintiffs—the appellees here4—sued Governor
On appeal, the U.S. Court of Appeals for the Eleventh Circuit found that the central constitutional question was the statute‘s scope. Dream Defs. v. Governor of Fla., 57 F.4th 879, 890 (11th Cir. 2023). While Dream Defenders maintained the statute could “criminalize[] continuing to protest peacefully while others commit violence,” the Governor and Sheriff Williams argued that “a person who is peacefully protesting does not commit a riot.” Id.
The Eleventh Circuit concluded that “[w]hether Florida‘s riot statute is unconstitutional turns on the proper interpretation of the new definition of ‘riot’ under Florida law—a question the Florida Supreme Court, the final arbiter of State law, has not yet addressed.” Id. at 884.
So today, it asks us:
What meaning is to be given to the provision of
Florida Stat. § 870.01(2) making it unlawful to “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 . . . [i]njury to another person; . . . [d]amage to property; . . . or [i]mminent danger of injury to another person or damage to property“?
Id. at 894 (alterations and omissions in original). “To assist [us] in answering [this] question,” the Eleventh Circuit added these considerations:
What qualifies as a “violent public disturbance“? Is it something more than “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“?
What conduct is required for a person to “willfully participate in a violent public disturbance“? Can a person “willfully participate in a violent public disturbance” without personally engaging in violence and disorderly conduct or advocating for violence and disorderly conduct? If so, what level of “participat[ion]” is required?
To obtain a conviction, does the State have to prove beyond a reasonable doubt that the defendant intended to engage or assist two or more other persons in violent and disorderly conduct? If not, what must the State prove regarding intent?
May a person be guilty of the crime of riot if the person attends a protest and the protest comes to involve a violent public disturbance in which three or more people acting with a common intent to assist each other engage in violent and disorderly conduct and the violent disturbance results in injuries to another person, damage to property, or imminent danger of injury to another or damage to property, but the person did not engage in, or intend to assist others in engaging in, violent and disorderly conduct?
Id. at 894-95 (alterations in original).
II
Before addressing these considerations, we determine which are within our power to decide.
We conclude three of the Eleventh Circuit‘s inquiries are sufficiently “determinative of the cause” to be within our jurisdiction, for each constitutes an essential step in that court‘s resolution of the underlying constitutional issues.7 They are:
- What qualifies as a “violent public disturbance“? Is it something more than “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“?
- To obtain a conviction, does the State have to prove beyond a reasonable doubt that the defendant intended to engage or assist two or more other persons in violent and disorderly conduct? If not, what must the State prove regarding intent?
- May a person be guilty of the crime of riot if the person attends a protest and the protest comes to involve a violent public disturbance in which three or more people acting with a common intent to assist each other engage in violent and disorderly conduct and the violent disturbance results in injuries to another person, damage to property, or imminent danger of injury to another or damage to property, but the person did not engage in, or intend to assist others in engaging in, violent and disorderly conduct?
Id. at 894-95 (alteration in original).
III
A
As ever, our focus is the statutory text at issue. See Alachua Cnty. v. Watson, 333 So. 3d 162, 169 (Fla. 2022). To determine its best reading, we “exhaust ‘all the textual and structural clues’ ” that inform its meaning. Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022) (quoting Alachua Cnty., 333 So. 3d at 169). Because the previous definition of riot stemmed from the common law, see Beasley, 317 So. 2d at 752, one clue—the long history of the
The crime of “riot” has deep roots in English law, and thus in Florida law, too. See
“unlawfully, riotously, and tumultuously assemble[] together, to the disturbance of the publick peace,” and not disperse after being ordered to do so. Riot Act of 1714, 1 Geo. I, c. 5, § I.
Blackstone, writing later in the eighteenth century, described “riot” as the most serious of three escalating offenses “against the public peace“: unlawful assembly, rout, and riot.9 2 William
Blackstone, Commentaries *145-46. Unlike unlawful assembly and rout, a “riot” in Blackstone‘s formulation required that the offenders “actually do an unlawful act of violence.” Id. at *146; see generally Nick Robinson, Rethinking the Crime of Rioting, 107 Minn. L. Rev. 77, 93-96 (2022) (surveying the history of the crime of riot in England).
When Florida‘s Territorial Council first convened in 1822, presumably borrowing from Blackstone, it outlawed “riots, routs,
After statehood, the Florida Legislature redefined “riot” as the more serious form of “unlawful assembly.” See Rev. Stat. 1892, § 2408. While “unlawful assembly” occurred when three or more people gathered “to commit a breach of the peace or to do any other unlawful act,” a criminal riot further required that that group “demolish, pull down or destroy . . . any dwelling house or other building, or any ship or vessel.” Id. §§ 2406-2407. The 1892 definition would hold in substance until 1967, when the Legislature amended the law without including a definition. See id.; Gen. St. 1906, § 3239; Rev. Gen. St. 1920, § 5072; Comp. Gen. Laws 1927, § 7174; ch. 67-407, § 1, Laws of Fla.
Our cases and laws have used the term “riot” outside Florida‘s criminal code. The 1869 Act for the Incorporation of Cities and Towns, echoing the 1361 Justices of the Peace Act, gave local governments the power to pass laws “as may be expedient and necessary for the preservation of the public peace” and “the suppression of riots and disorderly assemblies.” Compare ch. 1688, § 11, Laws of Fla. (1869), with Justices of the Peace Act of 1361, 34 Edw. III c.1. See also Towns v. City of Tallahassee, 11 Fla. 130, 133-34 (1866) (city had authority to regulate “disorderly and riotous house[s] for the resort of idle and drunken persons“). In Bird v. State, an 1881 murder case, several violent striking mill hands were referred to as “rioters.” 18 Fla. 493, 499 (1881). The group “had assembled in great numbers with arms of various kinds, including fire-arms, in the vicinity of said mill,” and engaged in “riot and tumult.” Id. And in 1920, this Court grappled with the tension between the crime of riot and free assembly, distinguishing lawful public gatherings from “riots and disorderly assemblies.” Anderson v. Tedford, 85 So. 673, 673-74 (Fla. 1920). We held that a city may regulate “for the preservation of the public peace and . . . the suppression of riots,” but may not forbid peaceful “public meetings” or “parades with or without music“:
It is only when [public] meetings, political, religious, social, or of other character, create public disturbances, operate as nuisances, threaten some tangible public or private mischief, prevent the passage of persons to and fro, obstruct traffic, or prevent the free use of the streets to the public, that they may be restricted . . . .
From the crime of riot‘s long history, three themes emerge. First, “riot” was generally understood as a crime against the “public peace,” and not necessarily against a specific victim or victims. See, e.g., ch. 1688, § 11, Laws of Fla. (1869); Justices of the Peace Act of 1361, 34 Edw. III, c.1. But see Rev. Stat. 1892, § 2406 (requiring that a rioter “demolish, pull down or destroy . . . any dwelling house or other building, or any ship or vessel“). Second, a riot often, but not always, had a point: its participants assembled with a shared aim, like protesting an employer,
And third, crucially, violence is intrinsic to a riot. See, e.g., Riot Act of 1549, 3 & 4 Edw. VI, c. 5; 2 William Blackstone, Commentaries *145-46; An Act to define crimes and misdemeanors and to prescribe punishments for the same, § 70, Acts of the Legislative Council of the Territory of Florida, Third Session (1824). To protest passionately, without more, is not to “riot” in the historic sense of the term. See, e.g., Anderson, 85 So. at 674. While the freedom to assemble peaceably has long been sacrosanct under the First Amendment, see N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 915 (1982),10 the common law, and now this statute, tell us violence is an unprotected form of expression, if expression it is.
In Beasley, when this Court said “riot” had its common-law meaning, we meant the word captured these historic themes. See 317 So. 2d at 753. When, as here, the Legislature chooses to codify
what was once a common-law crime, we do not presume that it scours the dirt from those common-law roots. See Tomlinson v. State, 369 So. 3d 1142, 1147 (Fla. 2023) (“At the time, ‘maliciously’ had developed a settled legal meaning at English common law, of which we are mindful in interpreting the statute.” (footnote omitted)); Sekhar v. United States, 570 U.S. 729, 732 (2013) (“It is a settled principle of interpretation that, absent other indication, ‘[the Legislature] intends to incorporate the well-settled meaning of the common-law terms it uses.’ ” (quoting Neder v. United States, 527 U.S. 1, 23 (1999))). Rather, “if a word is obviously transplanted from” the common law, we presume absent other indication that “it brings the old soil with it.” Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947).
B
We turn to the Eleventh Circuit‘s specific inquiries.
1
What qualifies as a “violent public disturbance“? Is it something more than “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“?
Dream Defs., 57 F.4th at 894 (alteration in original).
First, the phrase “violent public disturbance.” We have held that a person “loudly and profanely” yelling at a police officer, to the point that “[s]everal persons were drawn to the scene,” created a “public disturbance” under Florida‘s disorderly intoxication statute. Cross v. State, 374 So. 2d 519, 520-21 (Fla. 1979) (citing
But section 870.01(2) also requires that the public disturbance be “violent.” Because the Legislature has not defined that term, we look for its meaning at the time the statute was enacted. See Tomlinson, 369 So. 3d at 1146. The American Heritage Dictionary defines “violent” as “[c]ausing or intending to cause damage, injury, or death, often when
On to the modifiers. The first—“involving an assembly of three or more persons,
The second modifier—the one about what results conduct must have to constitute riot—adds to the Beasley formulation a requirement that the “violent public disturbance” “result[] in . . . [i]njury to another person,” “[d]amage to property,” or “[i]mminent danger” of either.
In sum: a “violent public disturbance” under
2
To obtain a conviction, does the State have to prove beyond a reasonable doubt that the defendant intended to engage or assist two or more other persons in violent and disorderly conduct? If not, what must the State prove regarding intent?
The statute‘s words answer this one. To prove a defendant “willfully participate[d] in a violent public disturbance,” the State must prove the defendant was part of the “violent public disturbance“—that is, part of the “assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct.”
What does it mean, then, to “willfully participate“? The ordinary meaning of “participate” is “to take part in something (as an enterprise or activity).” Webster‘s Third New International Dictionary 1646 (1986); see also The American Heritage Dictionary of the English Language 1285 (5th ed. 2011) (“[t]o be active or involved in something“). And the adverb “willfully,” when it appears in a criminal statute, tells us that the act must have been done “intentionally, knowingly, and purposely.”11 In re Standard JuryInstructions in Crim. Cases—Report 2011-01, 73 So. 3d 136, 138 (Fla. 2011); see Willful, Black‘s Law Dictionary (11th ed. 2019) (defining willful as both “[v]oluntary and intentional, but not necessarily malicious,” and “involv[ing] conscious wrong or evil purpose on the part of the actor“). So to “willfully participate[]” in a “violent public disturbance,” a defendant must have “intentionally, knowingly, and purposely” chosen to be part of it.
This means that to “willfully participate” in a “violent public disturbance,” a defendant must “intentionally, knowingly, and purposely” be part of the “assembly of three or more persons, acting with a common intent to assist each other in violent and disorderlyconduct.” So to obtain a conviction under
It also accords with the punctuation of the statutory text. And “[n]o intelligent construction of a text can ignore its punctuation.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 161 (2012). The phrase “acting with a common intent to assist each other in violent and disorderly conduct” is preceded by a comma. Such punctuation ordinarily indicates that the phrase modifies all that goes before it in the sentence and is not restricted to its immediate antecedent. So we are instructed by Facebook, Inc. v. Duguid, in which the Court said that “[a] qualifying phrase separated from antecedents by a comma is evidence that the qualifier is supposed to apply to all the antecedents instead of only to the immediately preceding one.” 592 U.S. 395, 403-04 (2021) (alteration in original) (quoting William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution 67-68 (2016)).Here, this grammatical rule supports the conclusion that the common-intent phrase is best understood to modify not only “an assembly of three or more persons,” but also “a person” who “willfully participates in a violent public disturbance.” The common-intent requirement extends to each person mentioned in the text, and a person can commit an offense under the statute only by acting with the specified intent: willfulness.
3
May a person be guilty of the crime of riot if the person attends a protest and the protest comes to involve a violent public disturbance in which three or more people acting with a common intent to assist each other engage in violent and disorderly conduct and the violent disturbance results in injuries to another person, damage to property, or imminent danger of injury to another or damage to property, but the person did not engage in, or intend to assist others in engaging in, violent and disorderly conduct?
Dream Defs., 57 F.4th at 894-95.
The answer is no. As we have explained, a person cannot “willfully participate” in a “violent public disturbance” without “acting with a common intent to assist [others] in violent and disorderly conduct.”
C
We conclude with a brief discussion of the alleged ambiguity of
The appellees reach the same conclusions, but in a roundabout way. They argue the most natural reading of
The district court, when it enjoined enforcement of this duly enacted state law over two years ago, concluded that
Where lawyers seek ambiguity, there often is it found. “As lawyers, we are indoctrinated from the first days of law school to find ambiguity in even the clearest of pronouncements.” Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2139 (2016) (reviewing Robert A. Katzmann, Judging Statutes(2014)); see also Ward Farnsworth et al., Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J. Legal Analysis 257, 260-73, 290 (2010) (arguing data show “judgments about ambiguity . . . are easily biased by strong policy preferences that the makers of the judgments hold“). But read as a typical reader of the English language would read it—with reference to “‘all the textual and structural clues’ that bear on [its] meaning“—the statute at issue here is not ambiguous, but reveals one best reading. Conage, 346 So. 3d at 598 (quoting Alachua Cnty., 333 So. 3d at 169).
IV
Having answered the questions of Florida law over which we have jurisdiction, we return this case to the U.S. Court of Appeals for the Eleventh Circuit.
It is so ordered.
MUÑIZ, C.J., and CANADY, GROSSHANS, FRANCIS, and SASSO, JJ., concur.
LABARGA, J., concurs in result with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
LABARGA, J., concurring in result.
When a violent public disturbance erupts during an assembly where peaceful protestors are exercising their First Amendment rights, the term “violent public disturbance” does not apply to the entire assembly. Instead, the “violent public disturbance” consists of the actual, violently disruptive act or acts themselves, carried out by a group of three or more persons who engage in or act with “common intent to assist each other in violent and disorderly conduct.” Majority op. at 21. As a result, the violent public disrupters either cause injury to another person or damage to property, or they create an imminent danger of such harm—and in so doing, satisfy the elements of “riot” under
In sum: a “violent public disturbance” under
section 870.01(2) is “a tumultuous disturbance of the peace,” Beasley, 317 So. 2d at 752; that is carried out in “a violent and turbulent manner,” id.; “involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct,”§ 870.01(2) ; and “results in . . . injury to another person,” “damage to property,” or imminent danger of either,§ 870.01(2)(a) -(c).
Majority op. at 21.
For purposes of
While I agree with this Court‘s bottom line, I do not agree that
The district court‘s observation about the use of the word “involving” is fundamental to the interpretation of
Instead of acknowledging any ambiguity, this Court concludes that there is only “one best reading” of the statute, see majority op. at 28, which is to exclude “a person who is present at a violent protest, but neither engages in, nor intends to assist others in engaging in, violent and disorderly conduct.” Id. at 1.
I agree with this reading but not because it is the one best reading. Rather, because the term “violent public disturbance” is ambiguous, the rule of lenity requires it. See
Consequently, I can only concur in the result.
Certified Question of Law from the United States Court of Appeals for the Eleventh Circuit – Case No. 21-13489
Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor General, and Daniel W. Bell and Jeffrey Paul DeSousa, Chief Deputy Solicitors General, Office of the Attorney General, Tallahassee, Florida; and Ryan D. Newman, General Counsel, and Nicholas J.P. Meros, Deputy General Counsel, Executive Office of the Governor, Tallahassee, Florida,
for Appellant Ron DeSantis, Governor of Florida
Sonya Harrell, Chief, Tort and Employment Litigation, and Jon R. Phillips, Deputy General Counsel, Office of General Counsel for the City of Jacksonville, Jacksonville, Florida,
for Appellant Jacksonville Sheriff‘s Office
Jerry C. Edwards and Daniel B. Tilley of the ACLU Foundation of Florida, Miami, Florida; Nicholas L.V. Warren of the ACLU Foundation of Florida, Jacksonville, Florida; Michael Skocpol and Anuja D. Thatte of NAACP Legal Defense & Educational Fund, Inc., Washington, District of Columbia; Rachel M. Kleinman of NAACP Legal Defense & Educational Fund, Inc., New York, New York; James E. Tysse, Steven Schulman, and Kristen E. Loveland of Akin Gump Strauss Hauer & Feld LLP, Washington, District of Columbia; and Alana J. Greer, Miriam Haskell, Berbeth Foster, and Denise A. Ghartey of the Community Justice Project, Miami, Florida,
for Appellees