CopyCited 12 times | Published | Supreme Court of Florida | 2005 WL 1475338
...Johnson,
491 U.S. at 406-07,
109 S.Ct. 2533. The Florida statute clearly meets these requirements, as I explain below. B. The Florida Statute Several Florida statutes prohibit unauthorized uses of law enforcement and military uniforms. For example, section
250.43(2), Florida Statutes (2004), is almost identical to the federal armed services uniform ban contained in 18 U.S.C....
...§ 702 (2000), which the Supreme Court held valid in Schacht v. United States,
398 U.S. 58, 61,
90 S.Ct. 1555,
26 L.Ed.2d 44 (1970). [5] The statute prohibits everyone except members of our armed forces from wearing any part of any service branch's uniform, or an imitation of it, except as provided by law. §
250.43(2), Fla....
...ereof"); §
30.46(4), Fla. Stat. (2004) (prohibiting anyone but sheriffs and their deputies from wearing an official sheriff's badge or insignia or wearing a badge or insignia of such similarity that it is "indistinguishable" from twenty feet away); §
250.43(1) (prohibiting unauthorized persons from wearing the uniform or insignia of the Florida National Guard)....
CopyPublished | Florida 5th District Court of Appeal | 2008 Fla. App. LEXIS 16563, 2008 WL 4753740
ORFINGER, J. The State appeals the county court’s order declaring section 250.43(2), Florida Statutes (2007), unconstitutional. This Court has jurisdiction. Fla. R.App. P. 9.030(b)(1)(A). The State argues that the trial court erred by concluding that section 250.43(2), regulating the wearing of military uniform and insignia, was unconstitutionally overbroad and violates the right to due process....
...The alert TSA agent considered it odd that Montas’s hair was longer than allowed in the military. When he could not produce a military ID, Montas admitted that he was not in the Army. He was arrested and charged with one count of wearing a uniform and insignia of rank, in violation of section 250.43, Florida Statutes (2007). 1 On Montas’s motion and after a hearing, the trial court determined that section 250.43 was unconstitutionally overbroad and violated the due process clause....
...While we doubt that such a message would be perceived by those observing him in uniform, we can conceive of situations when a person might wear some part of a military uniform to communicate a message. For instance, a person might do so to express his support of the troops or to protest military action. Because section 250.43 potentially implicates protected speech or conduct, we must determine if it is supported by a compelling governmental interest and is narrowly drawn to protect that interest....
...In reaching this conclusion, the Third District noted that a t-shirt expressing support of the police or making a political statement about a candidate for sheriff would be prohibited by the statute. A police uniform worn as a Halloween costume would also be illegal. Rodriguez,
906 So.2d at 1090 n. 3. Section
250.43, criminalizing the unauthorized wearing of a military uniform, imitation uniform, or any part thereof, also makes similar activities illegal....
...Sult,
906 So.2d at 1021 ; Rodriguez,
906 So.2d at 1088 . The Suit court concluded that there was no way to read a specific intent to deceive element into the statute to create a narrower reading limiting its scope to unprotected conduct.
906 So.2d at 1022. In the same way, section
250.43 fails to contain a specific intent element....
...State,
619 So.2d 231, 236 (Fla.1993) (citing Firestone,
538 So.2d at 460 ; Brown v. State,
358 So.2d 16, 20 (Fla.1978)). Here, the State does not suggest an alternative reading of the statute, and we can find no logical way to read a specific intent element into the statute as it is written. Although section
250.43 differs from section
843.085 in several respects, the Florida Supreme Court’s reasoning in Suit and the Third District Court’s rationale in Rodriguez apply here. Without a specific intent element, section
250.43 clearly criminalizes both innocent, protected conduct and unprotected conduct, and is on that basis both overbroad and a violation of due process. Further, while section
250.43 addresses a compelling government interest, it is not narrowly-tailored to ensure that there is no more infringement than is necessary to protect that interest. Finally, there is no way to read the statute more narrowly without rewriting it. Therefore, we affirm the trial court’s ruling that section
250.43 is unconstitutionally overbroad and violates due process. AFFIRMED. TORPY and COHEN, JJ., concur. . In its entirety, section
250.43, Florida Statutes (2007), provides: (1) The uniform or insignia of rank worn by officers of the Florida National Guard shall be worn only by persons entitled thereto by commission under the laws of the state or the United States....
