By Dan Christensen, FloridaBulldog.org
Florida’s controversial new “anti-riot’’ law that opponents say puts an unconstitutional chill on legitimate protest by ratcheting up the power of police to crack down on demonstrators could end up hitting unsuspecting taxpayers in the pocket.
That’s because a section in the law that’s drawn scant media attention specifically provides that municipalities – and by extension their taxpaying residents and insurers – be held civilly liable for unlimited damages caused by their failure to properly respond to a “riot or unlawful assembly.”
Another largely overlooked provision in the law gives the governor and Cabinet the power, if a complaint is filed, to overturn decisions by local governments to cut the operating budgets of police departments. The provision is the state’s response to the “defund the police” movement that envisions transferring funds from police departments to other public safety and social service efforts.
“Those two issues are really terrible, terrible provisions for cities and part of an overall trend in Tallahassee to do things that hurt the cities,” said Jamie Alan Cole, a Fort Lauderdale attorney with the firm Weiss Serota who has decades of experience representing local governments.
Gov. Ron DeSantis championed the “Combatting Public Disorder Act” in the wake of last summer’s nationwide protests demanding justice following the deaths of George Floyd in Minneapolis, MN and Breonna Taylor in Louisville, KY at the hands of police.
“It takes a robust approach to uphold the rule of law, stand with those serving in law enforcement and enforce Florida’s zero tolerance policy for violent and disorderly assemblies. The bill comes in the wake of ongoing violence, rioting and other forms of civil unrest throughout the United States over the last two years,” says a press release put out by DeSantis’s office when he signed it into law at the Polk County Sheriff’s Office on April 19. It took effect immediately.
‘A ton of bricks’
A federal lawsuit challenging its constitutionality, brought in North Florida by a half-dozen black-led civil rights organizations on May 11, contends those two sections are among a number of measures “designed to implement Governor DeSantis’s promise that ‘a ton of bricks [will] rain down on’ protesters” in Florida.
The four-count complaint accuses the state of violating First Amendment protections as well as the equal protection and due process clauses of the Fourteenth Amendment. It asks U.S. District Judge Paul Byron to declare the Act unconstitutional and enjoin enforcement.
The plaintiffs include the Florida NAACP, Miami-based The Dream Defenders and The Black Collective, and Broward’s Chainless Change and the Black Lives Matter Alliance Broward. The defendants are DeSantis, Attorney General Ashley Moody and a trio of local sheriffs, including Broward Sheriff Gregory Tony.
Neither Tony nor any of the other defendant sheriffs is accused of any specific wrongdoing, and is named because of his statutory authority to suppress riots. Miami, Fort Lauderdale and Tampa “all saw community members peacefully rise up in demonstration against police brutality,” the lawsuit says. “At a protest organized by Plaintiff Black Lives Matter Alliance Broward [in February 2021],’’ violence erupted “only after an officer shoved a kneeling protestor in the face without provocation.”
Among the provisions of the Act that have gotten the most attention are new criminal offenses with harsh penalties – including the elimination of bail – that expose protestors to arrest for what the lawsuit says is their “mere proximity to acts of violence or property destruction.”
Anti-riot law ‘motivated’ by racial bigotry
The suit says the Legislature “was motivated, at least in part, by a racially discriminatory purpose.” It argues “the intended effect of the Act is to deter the exercise of First Amendment rights by certain individuals — namely, those interested in changing the way police interact with Black communities.”
“Plaintiffs, Black–led groups of Florida residents who organize and conduct racial justice protests, are fearful that their members risk criminal liability merely for speaking out and advocating for change,” the lawsuit says. “Until enjoined, the Act will harm these groups and their members by chilling and punishing the exercise of their constitutional rights.”
Because of the actions by the Republican Legislature and Republican Gov. DeSantis, Florida’s cities and counties have their own new fear: unlimited liability for damages caused by a “riot” in their jurisdiction.
The Act imposes a new “duty” on municipal governments: to allow their police departments “to respond appropriately to protect persons and property during a riot or unlawful assembly based on the availability of adequate equipment.” Likewise, municipal sovereign immunity – previously capped at $300,000 per incident – is now waived for damages “arising from personal injury, wrongful death or property damages” caused by a city or county’s “breach of duty” during a “riot.”
“It’s hard to predict how things play out, but if something like Jan. 6 were to happen in a city here there could be tremendous liability,” said attorney Cole. “There will be a lot of second guessing of police decisions by plaintiffs who say you should have done more.”
Further, under the Act “municipalities are incentivized not to intervene or otherwise thwart overly punitive law enforcement response to demonstrations, for fear of running afoul of this provision,” the lawsuit says. “As a further result, protestors are likely to be subject to unfettered and harsh police responses, including force and arrest, and will be precluded from appealing to their local government to prevent or mitigate these responses.”
Blacks “will almost certainly be disproportionately affected by these police responses” due to disparities in Florida’s criminal justice system, the lawsuit says.
State control over municipal budgets
If the newly created fear of unlimited liability weren’t enough to cow local governments, the Act gives the governor a mechanism to impose state control on municipalities that want to reduce their law enforcement operating budgets.
If tentative budgets contain a reduction, a state attorney or a member of the “governing body who objects to the funding reduction” can file an appeal with the Administration Commission within 30 days. (The commission is an obscure entity composed of the governor and the Cabinet. It most recently drew attention in Broward when it appointed the county’s former Supervisor of Elections, Peter Antonacci, as the state’s chief administrative law judge.)
The municipality’s governing body would have five days to respond. The governor’s office must then hold a budget hearing on the matter and report its findings to the Administration Commission, which the governor chairs. The commission has 30 days to approve the budget reduction or modify it. The commission’s decision “shall be final,” the Act says.
The Florida League of Cities opposed HB 1 before it became law, as it did numerous bills aimed at preempting local control in a variety of controversial matters. Florida legislators apparently believe they, not local mayors and commissioners, know what’s best.
Messages left with the League of Cities to interview executive director Jeannie Garner were directed to league spokesman James Miller, who did not respond to Florida Bulldog.
The civil rights lawsuit notes the Act provides “no definition for the term ‘funding reduction.’ Consequently, this provision has already and will continue to chill Black and would-be protesters from engaging in protest.”