CopyCited 12 times | Published | Supreme Court of Florida | 2005 WL 1475338
...Krauss, Chief Assistant Attorney General, Bureau Chief, Tampa Criminal Appeals and John M. Klawikofsky, Assistant Attorney General, Tampa, FL, for Respondent. WELLS, J. We have for review a decision of a district court of appeal on the following question, which the court certified to be of great public importance: IS SECTION
843.085, FLORIDA STATUTES (2001), UNCONSTITUTIONAL AS OVERBROAD, VAGUE, OR A VIOLATION OF THE RIGHT TO SUBSTANTIVE DUE PROCESS? Sult v. State,
839 So.2d 798, 806 (Fla. 2d DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we answer the certified question in the affirmative and hold that section
843.085 is unconstitutionally overbroad, vague, and violates substantive due process....
...Sult testified that when she purchased the T-shirt, she was not in uniform and was not asked for identification. It was further demonstrated at trial that other indicia of law enforcement authority are commercially sold to the public. Sult was charged and ultimately convicted of violating section 843.085(1), Florida Statutes (2001). [1] *1015 During the trial, Sult challenged the constitutionality of section 843.085, asserting that the statute was vague or overbroad and that the statute violated substantive due process and equal protection....
...vulnerable to selective prosecution than any other and that there was no particular class of people who stand to be more affected by its enactment or enforcement. However, the court certified the following question to the district court: IS CHAPTER 843.085 VIOLATIVE OF THE CONSTITUTION OF THE UNITED STATES AND OF THE STATE OF FLORIDA IN THAT IT CRIMINALIZES WHAT COULD BE INNOCENT CONDUCT, SPECIFICALLY THE WEARING OF PARAPHERNALIA *1016 THAT CAN BE PURCHASED THROUGH COMMERCIAL CHANNELS BY THE PU...
...ech but that "the right to dress as one pleases, vis-à-vis style and fashion, has little or no First Amendment implications." Sult,
839 So.2d at 803 (quoting City of Daytona Beach v. Del Percio,
476 So.2d 197, 202 (Fla.1985)). The court stated that section
843.085 does not prohibit an expression of support for law enforcement but only prohibits the wearing or displaying of any indicia of authority....
...Based on this analysis, the district court held that "[i]ndividuals who wear, without authorization, full law enforcement uniforms or display law enforcement badges are not entitled to First Amendment protection for their conduct." Sult,
839 So.2d at 804. The court held that section
843.085 was therefore not overbroad....
...The court concluded that the State had a legitimate and even compelling interest in preventing robberies and kidnappings by individuals posing as law enforcement officers and that the statute was rationally related to that goal. Id. at 806. Based on the foregoing, the Second District held that section 843.085 was not overbroad or vague and did not violate substantive due process....
...This Court accepted review of the certified question. The Third District Court of Appeal has also considered the constitutionality of this statute but reached a conflicting result. In Rodriguez v. State,
906 So.2d 1082,
2004 WL 93942 (Fla. 3d DCA Jan. 21, 2004), the Third District held that section
843.085 was unconstitutionally overbroad....
...Rodriguez later admitted that he thought the officer would not pull him over if he convinced the officer that he was a member of the police department. After an extended chase, Rodriguez was ultimately apprehended and charged with, among other things, violating section
843.085. The jury convicted Rodriguez of violating the statute. On appeal, Rodriguez argued that section
843.085 was unconstitutional because the statute was impermissibly content-based and overbroad and proscribed conduct protected by the Florida and Federal Constitutions. The Third District held that section
843.085 was overbroad, first noting that the First Amendment afforded protection to symbolic conduct or expressive conduct as well as to actual speech. The court found that section
843.085(1) was content-based "in that it focuses only on the content of the speech or expression and the direct impact that it has on a viewer." Rodriguez,
906 So.2d at 1088. Because the statute was content-based, the Third District stated that it was subject to strict judicial scrutiny and must be narrowly tailored to promote a compelling governmental interest. The Third District concluded that section
843.085(1) was unconstitutionally overbroad because it banned the wearing of any indicia of law enforcement authority regardless of the intent of the wearer and because it may be applied to conduct that is protected by the First Amendment....
...that this statute must be narrowly tailored with an intent requirement so as not to run afoul of the rights guaranteed by the First Amendment." Rodriguez,
906 So.2d at 1089-90. The Third District's decision did not consider the constitutionality of section
843.085 under a vagueness or substantive due process analysis. *1018 ANALYSIS We agree with the Third District that section
843.085(1) is unconstitutional. We answer the Second District's certified question in the affirmative, quash the Second District's decision, and remand for further proceedings in accord with this opinion. We conclude that the defects in section
843.085(1) are similar to the defects we considered in respect to the City of Tampa's loitering ordinance in Wyche v....
...Thus, it is impossible to say that the ordinance bears a reasonable relation to a permissible legislative objective *1021 and is not discriminatory, arbitrary, or oppressive. Lasky v. State Farm Ins. Co.,
296 So.2d 9 (Fla.1974). Wyche,
619 So.2d at 237. Section
843.085(1), Florida Statutes, makes it a crime for an individual to exhibit, wear, or display any indicia of authority, or any colorable imitation thereof, of any federal, state, county, or municipal law enforcement agency or to display in an...
...of specified words. The reach of the statute is not tailored toward the legitimate public purpose of prohibiting conduct intended to deceive the public into believing law enforcement impersonators. The "could deceive a reasonable person" element of section 843.085(1), in conjunction with the prohibition of a display in any manner or combination of the words listed in the statute, results in a virtually boundless and uncertain restriction on expression. Thus, similar to the Tampa ordinance that was the subject of the Wyche decision, section 843.085(1) is overbroad because it reaches a substantial amount of constitutionally protected conduct....
...See Southeastern Fisheries Ass'n, Inc. v. Dep't of Natural Res.,
453 So.2d 1351, 1353 (Fla.1984). We agree with the following statement of the Third District: Likewise, we conclude in the instant case that in the absence of an intent or scienter requirement, section
843.085(1) is constitutionally infirm because it makes no distinction between the innocent wearing or display of law enforcement indicia from that designed to deceive the reasonable public into believing that such display is official....
...such item is authorized has committed a misdemeanor in the first degree. As written, the statute plainly requires the individual to merely possess the general intent to wear or display the item. As with the ordinance in Wyche, we could not construe section
843.085(1) otherwise "without effectively rewriting it, and we decline to `legislate' in that fashion." Wyche,
619 So.2d at 236. Thus, section
843.085(1) is unconstitutionally overbroad....
...nson v. State,
393 So.2d 1076 (Fla.1980) (holding statute that made it an offense to wear a mask or hood that concealed identity unconstitutionally overbroad because law was susceptible of being applied to entirely innocent activities). We also find section
843.085(1) to be vague and in violation of substantive due process. Section
843.085(1), because of its imprecision, again as with the ordinance that was the subject of the Wyche decision, fails to give fair notice of what conduct is prohibited....
...State,
842 So.2d 46 (Fla.2002); L.B. v. State,
700 So.2d 370 (Fla.1997); or Bouters v. State,
659 So.2d 235 (Fla.1995). Section
784.048, Florida Statutes (Supp.1992), Florida's stalking statute, which was the subject of Bouters, did not have the flaw we find in section
843.085(1)....
...ide the First Amendment's purview." Bouters,
659 So.2d at 237. Even though the statute did not define "harass," we found that the statute was not unconstitutionally vague because it contained the requisite "willful, malicious, and repeated" element. Section
843.085(1) does not have a similar intent element....
...upheld the constitutionality of the statute, finding that the statute would be construed giving the words their plain and ordinary meaning. L.B.,
700 So.2d at 372. We conclude that this is plainly different from the issue of vagueness in respect to section
843.085(1) because section
843.085(1) potentially reaches constitutionally protected expression and has no specific intent-to-deceive *1023 element....
...We found the cruelty to animals statute contained a requirement of general intent. However, we also found that the "general intent to commit an act ... is obviously reasonably related to the harm sought to be avoided." Reynolds,
842 So.2d at 51. We do not find such a reasonable relationship to be obvious in section
843.085(1). We point out that there is a Florida statute criminalizing the false impersonation of an officer, section
843.08, Florida Statutes (2004), [4] which is not implicated in this case....
...We remand this case to the district court for further consideration consistent with this opinion. It is so ordered. PARIENTE, C.J., and ANSTEAD, LEWIS, and QUINCE, JJ., concur. CANTERO, J., dissents with an opinion, in which BELL, J., concurs. CANTERO, J., dissenting. I disagree with the majority that the statute at issue, section 843.085, Florida Statutes (2001), is unconstitutional....
...(2004) (providing that a single uniform and badge of a law enforcement officer may be awarded to a retiring employee or to the family of a deceased officer, but that such items are presented "to commemorate *1026 prior service and must be used only in such manner as the employer prescribes by rule"). Finally, section 843.085(3) prohibits unauthorized persons from selling governmentally authorized law enforcement indicia of authority, except to authorized law enforcement personnel. These statutes, including the statute at issue here, address only conduct. Section 843.085(1), provides as follows: It is unlawful for any person: (1) Unless appointed by the Governor pursuant to chapter 354, authorized by the appropriate agency, or displayed in a closed or mounted case as a collection or exhibit, to wear o...
...currency except for "historical," "newsworthy," or certain other purposes, but upholding the statute's size and color requirements for permissible reproductions as reasonable time, place, or manner restrictions). The Court subsequently upheld against a First Amendment challenge a federal statute similar to section 843.085(1), although it struck part of a related statute....
...at 63,
90 S.Ct. 1555. Finally, in State v. McLamb, 188 Ariz. 1, 932 P.2d 266, 271-72 (Ct.App.1997), the defendant challenged on First Amendment grounds his conviction for the unauthorized wearing of a city's police insignia under an ordinance similar to section
843.085....
...iance so that arbitrary and discriminatory enforcement is discouraged; and (C) whether the law interferes with the exercise of constitutionally protected rights such as free speech. See Grayned,
408 U.S. at 108-09,
92 S.Ct. 2294. To demonstrate that section
843.085 is not unconstitutionally vague, I will address each question in turn....
...The majority holds that a person of common understanding is left to guess at what items fall within the statute's prohibition. I disagree. As stated above, the statute prohibits the unauthorized wearing or displaying of "authorized indicia of authority, including any badge, insignia, emblem, identification card, or uniform." § 843.085(1), Fla....
...ity has embraced Sult's claim that the statute has the effect of criminalizing "innocent activities" and infringing the First Amendment. See majority op. at 1022. As to the first concern of substantive due process, the Legislature's goal in enacting section 843.085 was legitimate....
...We concluded that the Legislature had authority to require only general intent, and had "put potential offenders on express notice of the intent required to violate" the statute. Id. at 51. Further, we found the general intent requirement to be "obviously reasonably related to the harm sought to be avoided." Id. Section 843.085 also is a general intent statute....
...Therefore, I would approve the Second District's opinion. I fear that today the Court has stripped law enforcement agencies of one important weapon in their battle against crime. I only hope that the legislature acts quickly to fill the void. I respectfully dissent. BELL, J., concurs. NOTES [1] Section 843.085, Florida Statutes (2001), provides in pertinent part: 843.085....
...Moreover, in the aftermath of the "September 11th" tragedy, it has now become commonplace for many Americans to wear authentic-looking law enforcement t-shirts, caps and other paraphernalia merely out of reverence for the tragedy's heroes. All such persons would nevertheless be in violation of section 843.085(1)....
...on the opportunity to explain this conduct, and no one shall be convicted of violating this subsection if it appears at trial that the explanation given was true and disclosed a lawful purpose. Wyche,
619 So.2d at 233-34 n. 2 (emphasis omitted). [4] Section
843.08 prohibits a person from falsely assum[ing] or pretend[ing] to be a sheriff, officer of the Florida Highway Patrol, officer of the Fish and Wildlife Conservation Commission, officer of the Department of Environmental Protection, officer...
