Dream Defenders v. DeSantis

• Decision Date: 09 September 2021
• Docket Number: Case No.: 4:21cv191-MW/MAF
• Citation: 559 F.Supp.3d 1238
• Parties: The DREAM DEFENDERS, et al., Plaintiffs, v. Ron DESANTIS, in his official capacity as Governor of the State of Florida, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

559 F.Supp.3d 1238

The DREAM DEFENDERS, et al., Plaintiffs,

v.Ron DESANTIS, in his official capacity as Governor of the State of Florida, et al., Defendants.

Case No.: 4:21cv191-MW/MAF

United States District Court, N.D. Florida, Tallahassee Division.

Signed September 9, 2021

Anya Anton Marino, Harvard Law School, Jamaica Plain, MA, Georgina C. Yeomans, NAACP Legal Defense & Education Fund Inc., Caroline Lewis Wolverton, James Tysse, Miranda Alyssa Dore, Steven H. Schulman, Akin Gump Strauss etc., Washington, DC, Max H. Gaston, Daniel Boaz Tilley, Nicholas Warren, ACLU Foundation of Florida Inc., Alana J. Greer, Berbeth S. Foster, Denise A. Ghartey, Miriam Fahsi Haskell, Community Justice Project Inc., Miami, FL, Rachel M. Kleinman, Morenike Fajana, NAACP Legal Defense & Education Fund Inc., Anne Morrill Evans, Erica Evette Holland, Joseph L. Sorkin, Akin Gump Strauss etc., New York, NY, Nicholas Edward Petree, Akin Gump Strauss et al., LLP, Houston, TX, for Plaintiffs Dream Defenders, Black Collective Inc., Chainless Change Inc., Black Lives Matter Alliance Broward, Florida State Conference of the Naacp.

Anya Anton Marino, Harvard Law School, Jamaica Plain, MA, Alana J. Greer, Berbeth S. Foster, Denise A. Ghartey, Community Justice Project Inc., Daniel Boaz Tilley, Max H. Gaston, Nicholas Warren, ACLU Foundation of Florida Inc., Miriam Fahsi Haskell, Community Justice Project Inc., Miami, FL, Anne Morrill Evans, Erica Evette Holland, Joseph L. Sorkin, Akin Gump Strauss etc., Morenike Fajana, Rachel M. Kleinman, NAACP Legal Defense & Education Fund Inc., New York, NY, Caroline Lewis Wolverton, James Tysse, Miranda Alyssa Dore, Steven H. Schulman, Akin Gump Strauss etc., Washington, DC, Nicholas Edward Petree, Akin Gump Strauss et al., LLP, Houston, TX, for Plaintiff Northside Coalition of Jacksonville Inc.

Emily C. Percival, James William Uthmeier, icholas John Peter Meros, Executive Office of the Governor of Florida Office of General Counsel, Tallahassee, FL, for Defendant Ron Desantis.

Matthew Joseph Carson, Michael Patrick Spellman, Sniffen & Spellman PA, Tallahassee, FL, for Defendant Walt McNeil.

Helen Peacock Roberson, Jon Robert Phillips, Laura J. Boeckman, Sonya Harrell, Mary Margaret Giannini, Office of General Counsel City of Jacksonville, Jacksonville, FL, for Defendant Mike Williams.

Christopher J. Stearns, Jr., Michael Ross Piper, Johnson Anselmo Murdoch etc. PA, Ft. Lauderdale, FL, for Defendant Gregory Tony.

PRELIMINARY INJUNCTION

Mark E. Walker, Chief United States District Judge 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. 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, 84 S.Ct. 235, 11 L.Ed.2d 208 (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, 84 S.Ct. 235. 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 disorderly conduct within the City of Tallahassee at its Municipal Airport over which the city had jurisdiction." Id. at 145, 84 S.Ct. 235. 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 constitutional.

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 Amendment⁶ 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

I

A

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 participant in a larger demonstration where violence occurs" is guilty of rioting. ECF No. 1 ¶ 72.

B

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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 112 S.Ct. 2130. 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 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 future").

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...