Arrestable Offenses / Crimes under Fla. Stat. 870.01
S870.01 2 - RIOT - RENUMBERED. SEE REC # 9431 - F: T
CopyCited 40 times | Published | Supreme Court of Florida
...ection
775.082 or Section
775.083." [2] "All persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree, punishable as provided in Section
775.082, Section
775.083, or Section
775.084." Fla. Stat. §
870.01(2)....
CopyCited 38 times | Published | Supreme Court of Florida
...These arguments mimic the arguments found wanting in State v. Simpson,
347 So.2d 414 (Fla. 1977), appeal dismissed,
434 U.S. 961,
98 S.Ct. 498,
54 L.Ed.2d 447 (1977), and State v. Beasley,
317 So.2d 750 (Fla. 1975). In Beasley we upheld the constitutionality of section
870.01(2), Florida Statutes (1973), which prohibits riots, by construing the statute in terms of the common law definition of riots....
CopyCited 17 times | Published | Supreme Court of Florida
...*752 Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellant. Phillip A. Hubbart, Public Defender, and Roy S. Wood, Jr., Asst. Public Defender, for appellee. OVERTON, Justice. The constitutionality of this state's riot statute, Section 870.01(2), Florida Statutes (1973), is the issue in this cause. The appellee was charged by information with the offense of riot in that he, on February 14, 1973, "did incite or encourage a riot, in violation of 870.01(2), Florida Statutes." No further specifics were set forth in the information....
...trued the statute's application so that it applied solely to that speech which the state could constitutionally regulate. We previously applied this restrictive construction doctrine in State v. Ecker,
311 So.2d 104 (Fla. 1975). The subject statute, Section
870.01(2), Florida Statutes (1973), reads as follows: "All persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree, punishable as provided in §
775.082, §
775.083, or §
775.084." The...
...In fact, the term probably has a better common understanding by a citizen than the term "disorderly conduct" or "loitering" as they have been used and upheld by federal courts in Shuttlesworth v. Birmingham, supra, and United States v. Cassiagnol, supra. We hold Section 870.01(2), Florida Statutes (1973), establishing the criminal offense of riot and inciting and encouraging a riot, is constitutional subject to the following restrictive limitations....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1995 WL 103331
...We therefore affirm the adjudication of delinquency on the basis of affray, and reverse insofar as the adjudication rested on the offense of attempted battery upon a school employee. AFFIRMED in part, REVERSED in part and REMANDED. ERVIN, MINER and WOLF, JJ., concur. NOTES [1] Section 870.01(1), Florida Statutes (1993), makes an affray a misdemeanor of the first degree.
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1996 Fla. App. LEXIS 10347, 1996 WL 562435
...She was informed that she could appeal the recommendation, and she did. She was unsuccessful in appealing the recommendation, and was discharged on January 24, 1995, for failing to disclose her arrest in 1980, and plea of nolo contendere to the affray charge, Florida Statute Section 870.01....
...ght conviction meant serving time in jail. Even if she was confused by the term conviction, it is clear and unambiguous from the record that she was aware she entered a plea of nolo contendere and adjudication was withheld. I would affirm. NOTES [1] § 870.01, Fla....
CopyCited 5 times | Published | Supreme Court of Florida
...it seeks to make criminal the coming together without requiring affirmative action in furtherance of the breach of peace or other unlawful act... ." We disagree. In State v. Beasley,
317 So.2d 750 (Fla. 1976), we upheld the related riot statute, [3] Section
870.01, Florida Statutes, and held the term riot must be defined as it was understood at common law since it was not expressly defined in the statute....
...awful purpose" is merely the inference of neighbors. The threat to public welfare is too speculative to allow such an imposition upon the rights of free association and speech. As we stated in State v. Beasley , [4] construing the anti-riot statute (Section 870.01, Florida Statutes), for speech to constitute an incitement to riot the state must allege and prove "circumstances justifying a clear and present danger of a riot in accordance with its elements as heretofore set out and that the langua...
...If the crowd were armed, or were making threats to passersby, or were trespassing, the situation would come within the proscription of a number of valid criminal statutes. Should there be rioting, or the incitement to riot, the case would be adequately covered under Section 870.01, which we held constitutional in Beasley, supra....
...(1975), reads: " Unlawful assemblies. If three or more persons meet together to commit a breach of the peace, or to do any other unlawful act, each of them shall be guilty of a misdemeanor of the second degree, punishable as provided in s.
775.082 or s.
775.083." [3] §
870.01(2), Fla....
CopyCited 4 times | Published | Supreme Court of Florida
...Stahl, Jr., of Varon, Stahl & Kay, Hollywood, and Archie Odom, Port Charlotte, for appellants. Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for appellee. OVERTON, Justice. These consolidated cases are before this Court upon the constitutionality of the riot statute, Section 870.01(2), Florida Statutes (1973), and an improper identification procedure which allegedly made an independent identification at trial impossible....
...The fourth count charged the appellant, Mullins, with the riot offense and reads in its entirety as follows: "JULIUS TERRY MULLINS, did then and there riot, or incite a riot, or encourage a riot." Each of the appellants moved to dismiss the riot count of his respective information on the grounds that: "... Chapter 870.01 of the Florida Statutes is unconstitutional in that it fails to set forth sufficient information and guidelines......
...Mullins was found not guilty of Count 2, aggravated battery upon Ralph Cunningham, and of Count 3, resisting arrest with violence. He was sentenced to five years imprisonment on each of Counts 1 and 4, with the sentences to run concurrently. With reference to the constitutional issue, we hold the riot statute, Section
870.01(2), Florida Statutes (1973), is constitutional in accordance with our recent decision in State v. Beasley,
317 So.2d 750 (Fla. 1975), and the restrictive construction contained therein. Under the guidelines set out in State v. Beasley, supra, the information in each of these cases is insufficient to properly charge a riot offense under Section
870.01(2), Florida Statutes (1973)....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1991 WL 154814
...In the interest of justice, Jones should be afforded this opportunity. Accordingly, we reverse all three convictions and remand for new trial. REVERSED and REMANDED. PETERSON, J., concurs. COWART, J., dissents without opinion. NOTES [1] §
944.40, Fla. Stat. (1987). [2] §
843.02, Fla. Stat. (Supp. 1988). [3] §
870.01(2), Fla....
CopyCited 1 times | Published | Supreme Court of Florida | 1998 WL 696947
...Thus, section 39.052(4) provides a two-step process for courts to follow once a child has been found delinquent and the court determines to adjudicate the child guilty and commit him or her to the DJJ. In D.L.B., the case relied upon by the majority, the trial court found the child delinquent under section 870.01, Florida Statutes (1995), for fighting in a public place....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 7296
...ng?” K.A.’s words do not rise to the level of obstruction. If anything, urging the crowd of people not to run could be viewed as intending to prevent panic. The state also suggests K.A. could properly have been arrested for inciting a riot under section 870.01(2), Florida Statutes (2007)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2009 WL 1606097
...unning?" K.A.'s words do not rise to the level of obstruction. If anything, urging the crowd of people not to run could be viewed as intending to prevent panic. The state also suggests K.A. could properly have been arrested for inciting a riot under section 870.01(2), Florida Statutes (2007)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...Public Defender, West Palm Beach, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee. BERANEK, Judge. Appellant was adjudicated guilty, after a jury trial, for inciting a riot under Section 870.01(2), Florida Statutes (1981)....
CopyPublished | Supreme Court of Florida | 23 Fla. L. Weekly Supp. 524, 1998 Fla. LEXIS 1897
trial court found the child delinquent under section
870.01, Florida Statutes (1995), for fighting in a
CopyPublished | Supreme Court of Florida | 23 Fla. L. Weekly Supp. 534, 1998 Fla. LEXIS 1899
...HARDING, C.J., and OVERTON and WELLS, JJ., concur. KOGAN, ANSTEAD and PARIENTE, JJ., dissent. . R.A.M. v. State,
695 So.2d 1308 (Fla. 1st DCA) review granted,
698 So.2d 1225 (Fla. 1997); J.P.M. v. State,
688 So.2d 458 (Fla. 1st DCA 1997); S.R. v. State,
683 So.2d 576 (Fla. 1st DCA 1996). . §
870.01(1), Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
...JILL PRYOR, Circuit Judge:
This appeal returns to us after we certified a question to the
Supreme Court of Florida asking it to provide an authoritative in-
terpretation of Florida’s amended criminal riot statute, Fla. Stat.
§ 870.01(2) (2021)....
..., the Florida Legisla-
ture passed the Combatting Violence, Disorder, and Looting, and
Law Enforcement Protection Act, also known as House Bill 1, 2021
Fla. Leg. Sess. Laws Serv. ch. 2021-6, and codified at Fla. Stat.
§ 870.01(2)....
...derly 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.
Fla. Stat. § 870.01(2).
In response to House Bill 1’s passage, the plaintiffs, Dream
Defenders and other civil rights organizations that organize and at-
tend racial justice protests, filed a complaint against defendants...
...I, 57 F.4th at 890–91. We therefore decided to certify a ques-
tion to the Florida Supreme Court addressing the riot statute’s
proper interpretation. We asked:
What meaning is to be given to the provision of Flor-
ida 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
USC...
...Page: 11 of 17
21-13489 Opinion of the Court 11
Dream Defs. I, 57 F.4th at 894. Based on a plain reading of the stat-
ute, the Court answered that “to obtain a conviction under section
870.01(2), the State must prove a defendant acted with intent to
assist others in violent and disorderly conduct.” DeSantis,
389 So.
3d at 424....
...In reaching this conclusion, the Court reasoned that “the
common-intent phrase is best understood to modify not only ‘an
assembly of three or more persons,’ but also ‘a person’ who ‘will-
fully participates in a violent public disturbance.’” Id. (quoting Fla.
Stat. § 870.01(2))....
...In the Court’s words, “a person cannot ‘willfully par-
ticipate’ in a ‘violent public disturbance’ without ‘acting with a
common intent to assist others in violent and disorderly conduct.’”
Id. (alteration adopted) (quoting Fla. Stat. § 870.01(2))....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Oct 9, 2024
...v-
ity.” Id. at 874. On appeal, “we certified a question to the Supreme
Court of Florida asking it to provide an authoritative interpretation
of [the law,] Florida’s amended criminal riot statute, Fla. Stat.
§ 870.01(2) (2021).” Id....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Oct 9, 2024
amended criminal riot statute, Fla. Stat. §
870.01(2) (2021).” Id. We explained that:
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 2488
REMANDED. ERVIN, MINER and WOLF, JJ., concur. . Section
870.01(1), Florida Statutes (1993), makes an affray
CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 6266
...ion and supplies the officers with no immunity or justification in law against civil liability. Chapter 870 Fla.Stat., F.S.A., entitled “Affrays; Riots; Routs; Unlawful Assemblies,” provides the penalties for persons guilty of affrays and riots (§
870.01 (1) and (2); defines unlawful assemblies and provides the penalty therefor (§
870.02); and provides a greater penalty for persons participating in riots involving destruction of buildings or vessels (§ 870.03)....
...That body has not seen fit to change or modify the provision in question of this statute since its initial enactment in 1868. Chapter 870 has been amended by the legislature in recent years, in certain respects not changing or affecting §
870.05. In 1967 §
870.01 was amended to increase the penalty for persons guilty of a riot or of inciting a riot....
CopyPublished | Supreme Court of Florida
...Appellees.
June 20, 2024
COURIEL, J.
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)....
...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 § 870.01, Fla....
...at 753.
-2-
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 wi...
...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.
§ 870.01(2), Fla....
...3
2. Relevant here, HB 1 also defined the crime of “affray,”
created the crime of “aggravated rioting,” and required that a person
charged with “riot” or “aggravated rioting” be held in custody until
his or her bail hearing. § 870.01(1), (3), (6), Fla. Stat. (2021).
3. “Riot” under section 870.01(2) is a third-degree felony.
§ 870.01(2)....
...(2021).
-3-
Soon after HB 1 took effect, a group of plaintiffs—the appellees
here4—sued Governor Ron DeSantis, three Florida sheriffs, 5 and
Attorney General Ashley Moody in the U.S. District Court for the
Northern District of Florida to enjoin them from enforcing section
870.01(2)....
...: that it was vague in
violation of the Fourteenth Amendment, and overbroad in violation
of the First and Fourteenth Amendments. The federal district court
agreed, and in a lengthy order enjoined Governor DeSantis and the
Sheriffs from enforcing section 870.01(2)....
...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 ....
...by the Supreme Court of the United States or a United States Court
of Appeals “which [are] determinative of the cause and for which
there is no controlling precedent of the supreme court of Florida.”
The parties concede there is “no controlling precedent” interpreting
section 870.01(2)....
...assembly of three or more persons, acting with a common intent to
assist each other in violent and disorderly conduct,” and “resulting
in: (a) Injury to another person; (b) Damage to property; or (c)
Imminent danger of injury to another person or damage to
property.” § 870.01(2).
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....
....
operate as nuisances, threaten some tangible public or private
- 17 -
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 . . . .”).
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....
....”
The American Heritage Dictionary of the English Language 1934 (5th
ed. 2011); see also Webster’s Third New International Dictionary
2554 (1986) (“characterized by extreme force”). This contemporary
understanding informs our reading of section 870.01(2), but it also
illustrates that the statute has not strayed too far from the common
law, which required that the “tumultuous disturbance of the peace”
be carried out “in a violent and turbulent manner.” Beasley, 317
So....
...On to the modifiers. The first—“involving an assembly of three
or more persons, acting with a common intent to assist each other
in violent and disorderly conduct”—quite clearly tracks the common
law as articulated in Beasley. Compare § 870.01(2), with Beasley,
317 So....
...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. § 870.01(2)(a)-(c)....
...§ 574.040 (2000); N.C. Gen. Stat.
§ 14-288.2(a) (1994); N.Y. Penal Law § 240.06 (1968); Or. Rev. Stat.
§ 166.015(1) (1971); Tex. Penal Code § 42.02(a)(1) (1994).
- 20 -
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 . . . [i]njury to another
person,” “[d]amage to property,” or imminent danger of either,
§
870.01(2)(a)-(c).
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 di...
...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.” § 870.01(2) (emphasis added).
- 21 -
The prepositional verb “participates in,” as the Legislature
uses it, is transitive: it “requires a direct object to complete its
meaning.” See William Strunk, Jr....
...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. § 870.01(2).
And, to recap, a “violent public disturbance” is “an assembly of
three or more persons, acting with a common intent to assist each
other in violent and disorderly conduct.” See supra p....
...structions,
means only that the crime was done “intentionally, knowingly, and
purposely.” In re Standard Jury Instructions in Crim. Cases—Report
2011-01,
73 So. 3d 136, 138 (Fla. 2011). Today, we need only hold
that the word “willfully” in section
870.01(2) requires that an act
was done “intentionally, knowingly, and purposely.”
- 23 -
conduct.” So to obtain a conviction under section
870.01(2), the
State must prove a defendant acted with intent to assist others 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.” § 870.01(2)....
...o assist others in
- 25 -
engaging in, violent and disorderly conduct.” Dream Defs., 57 F.4th
at 895.
C
We conclude with a brief discussion of the alleged ambiguity of
section 870.01(2)....
...“common intent to assist [others] in violent and disorderly conduct.”
A peaceful protestor, under the most natural reading of the statute,
is no rioter. We agree.
The appellees reach the same conclusions, but in a
roundabout way. They argue the most natural reading of section
870.01(2) would make it illegal to protest peacefully at a gathering
at which violence breaks out....
...the judicial
interpreter to consider the entire text, in view of its structure and of
- 26 -
The district court, when it enjoined enforcement of this duly
enacted state law over two years ago, concluded that section
870.01(2) was in fact ambiguous....
...ly
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 section
870.01(2),
Florida Statutes (2021). See id. This Court concluded:
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.
- 29 -
For purposes of section
870.01(2), a narrow interpretation of
“violent public disturbance” is essential to ensure that prosecutions
involving violations of the statute do not capture the peaceful,
nonviolent exercise of First Amendment rights nor criminalize the
mere presence at or lawful participation in an otherwise peaceful
assembly or protest. 13
While I agree with this Court’s bottom line, I do not agree that
section
870.01(2) is unambiguous....
...As observed by the federal
district court, “[b]y using the modifier ‘involving,’ the Florida
13. This interpretation of “violent public disturbance” will
almost certainly limit the possibility of unwarranted prosecutions
under section 870.01(2)....
...the disturbance and identify suspects. In the midst of such a fluid
scenario, innocent individuals may be taken into custody only for
things to be sorted later. At a minimum, this means that arrested
individuals will be held in custody until first appearance. See
§ 870.01(6), Fla....
...o be
only a smaller component of the larger whole.” Dream Defs. v.
DeSantis,
559 F. Supp. 3d 1238, 1274 (N.D. Fla. 2021).
The district court’s observation about the use of the word
“involving” is fundamental to the interpretation of section
870.01(2).
If a larger public assembly during which violence erupts is the
“violent public disturbance,” and the riotous assembly is “only a
smaller component of the larger” disturbance, then the term “violent
public disturbance...
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 169, 1985 Fla. App. LEXIS 11840
...ent danger” of a riot occurring, as required by State v. Beasley,
317 So.2d 750 (Fla.1975). We reject his contention. The information filed by the state in Beasley merely stated that the defendant “did incite or encourage a riot, in violation of
870.01(2), Florida Statutes.” The supreme court held that the information was inadequate, because it did not “establish circumstances justifying a clear and present danger of a riot.” Id....
...The informations before us are much more detailed than the information in Beasley . We think the allegations of these informations allege facts and circumstances which justify a clear and present danger of riots. Accordingly, we hold that they sufficiently allege the offense of inciting a riot as proscribed by section 870.01(2)....
CopyPublished | Court of Appeals for the Eleventh Circuit
...We therefore certify a question regarding the meaning of
“riot” in the new state law to the Florida Supreme Court.
I.
It has long been a felony under Florida law to engage in a
riot. See Fla. Stat. § 870.01(2) (2020) (“[A person] guilty of a riot, or
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 4 of 29
4 Opinion of the Court 21-13489
of inciting...
...at 753.
This “restrictive limitation[]” on the definition, the Florida Su-
preme Court said, ensured its constitutionality. Id.
With HB 1, the Florida Legislature amended the Florida
statute prohibiting riots, § 870.01(2), to add a definition of “riot.”
See HB 1 § 15....
...orderly 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.
Fla. Stat. § 870.01(2). 1 With HB 1, the Florida Legislature also
amended § 870.01 to specify that the statute “does not prohibit con-
stitutionally protected activity such as a peaceful protest.” Id.
§ 870.01(7); HB 1 § 15. Also relevant here, it added a requirement
that any person arrested for rioting “shall be held in custody” until
his bail hearing. Fla. Stat. § 870.01(6); see HB 1 § 15.
The plaintiffs in this case are organizations that regularly
stage peaceful protests, encouraging their members to come to-
gether to demonstrate their opposition to police violence and their
support for racial justice....
...ways—but the plaintiffs strive to keep the protests free from vio-
lence. Some plaintiffs designate members to attend protests as
“peacekeepers” tasked with keeping people with opposing views
1 In this opinion, when we say “§ 870.01(2),” we refer to the version of the
statute as amended by HB 1.
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 6 of 29
6 Opinion of the Court 21-13489
physically separated from one another....
...Peacekeepers have chased away counter-protestors in ef-
forts to stop the violence.
The plaintiffs sued Governor DeSantis, Sheriff Williams,
Leon County Sheriff Walt McNeil, and Broward County Sheriff
Gregory Tony, all in their official capacities, challenging
§ 870.01(2). Shortly after filing the complaint, the plaintiffs filed a
motion for a preliminary injunction to block Governor DeSantis
and the sheriffs from enforcing § 870.01(2)’s new definition of riot.
The plaintiffs argued that they were entitled to a preliminary in-
junction because they had a substantial likelihood of success on
their claims that, as amended, the statute prohibitin...
...The court de-
termined that the plaintiffs demonstrated a substantial likelihood
that they would succeed on their void-for-vagueness and over-
breadth claims. To evaluate these claims, the court explained, it
had to interpret the scope of § 870.01(2)’s prohibition on riots....
...After
parsing the statute, the court concluded that it “raise[d] grave con-
stitutional concerns.” Id. at 57.
HB 1, their motion for a preliminary injunction requested only that the court
enjoin enforcement of § 870.01(2) based on their void-for-vagueness and over-
breadth claims....
... USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 8 of 29
8 Opinion of the Court 21-13489
Addressing the plaintiffs’ vagueness challenge, the district
court concluded that § 870.01(2) was open to “multiple reasonable
constructions,” and thus “an individual of ordinary intelligence
could read the [statute] and not be sure of its real-world conse-
quence.” Id....
...cluded that the statute forced “would-be protestors” to choose “be-
tween declining to jointly express their views with others or risk
being arrested and spending time behind bars.” Id. The court fur-
ther concluded that “the vagary of [§ 870.01(2)] empower[ed] law
enforcement officers to exercise their authority in arbitrary and dis-
criminatory ways” because “the statute [left] unclear who must
share what intent to be arrested.” Id....
...For these reasons, it
determined that the plaintiffs were substantially likely to prevail on
their vagueness challenge.
The district court also determined that the plaintiffs were
substantially likely to succeed on their overbreadth claim. Sec-
tion 870.01(2), the court concluded, “criminalize[d] a large amount
of unprotected activity,” as well as “vast swaths of core First
Amendment speech.” Id....
...members face an injury that is sufficiently imminent for standing
purposes. First, the plaintiffs’ members wish to exercise their right
to protest, speech that is affected with a First Amendment interest,
and believe that § 870.01(2) prevents them from doing so....
...But it canceled its
plans because of its members’ fears of being arrested for violating
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 12 of 29
12 Opinion of the Court 21-13489
§ 870.01(2)....
...ive.
As the district court’s findings of fact reflect, the plaintiffs’ members
have engaged and continue to engage in self-censorship in response
to the prospect of being charged with the crime of “riot” under
§ 870.01(2)....
...Ex parte Young requires that the
state officer have “authority to enforce the challenged statute.” Id. at 1342.
We agree with the district court that, based on Ex parte Young, Governor De-
Santis is a proper party because he has statutory authority to enforce
§
870.01(2)’s prohibition on riots.
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 16 of 29
16 Opinion of the Court 21-13489
Governor of Ga.,
978 F.3d 1266, 1270 (11th Cir....
...The first fac-
tor “is generally the most important.” Id. at 1271 n.12. (internal
quotation marks omitted).
Governor DeSantis and Sheriff Williams argue that the dis-
trict court erred in concluding that the plaintiffs are likely to suc-
ceed on their claims that § 870.01(2) is unconstitutional because it
is void for vagueness and overly broad....
...ida Supreme Court.
To address why certification is warranted here, we begin by
explaining how the plaintiffs’ constitutional claims turn on a novel
issue of Florida state law, the meaning of “riot” under § 870.01(2).
In these circumstances, certification is appropriate to avoid the risk
of friction that may arise when a federal court endeavors to con-
strue a novel state law in the first instance....
...3 Page: 17 of 29
21-13489 Opinion of the Court 17
Eng. v. Arizona,
520 U.S. 43, 75 (1997). Indeed, certification affords
the State’s highest court an opportunity to interpret §
870.01(2) in
a way that may obviate the plaintiffs’ constitutional concerns.
Resolution of the plaintiffs’ vagueness and overbreadth
claims requires interpretation of §
870.01(2)....
...sheltered by the First Amendment, the doctrine demands a greater
degree of specificity than in other contexts”).
The parties’ arguments illustrate how the plaintiffs’ vague-
ness claim depends on the interpretation of § 870.01(2). The plain-
tiffs argue that § 870.01(2) “fails to define what it means to ‘partici-
pate’ in a violent public disturbance” or to define what the term
“violent public protest” encompasses, leaving it “hopelessly
USCA11 Case: 21-13489 Document...
...of 29
21-13489 Opinion of the Court 19
Like their vagueness claim, the plaintiffs’ overbreadth claim
turns on what conduct is prohibited by the definition of riot in
§ 870.01(2)....
...at 30 (“Because [t]he statute does not sweep in a substantial
amount of protected speech, or criminalize innocent behavior, it is
not unconstitutionally overbroad.” (internal quotation marks
omitted)).
To determine what qualifies as a riot under § 870.01(2), we
look to the “actual text of the statute,” Boos v....
...orderly 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.
Fla. Stat. § 870.01(2).
The plaintiffs contend that the text raises some questions
about what kind of conduct the statutory definition prohibits....
...After all, the
same participation trophy goes to the child who hit the game-win-
ning home run and the child who simply showed up to play the
game.
And what kind of conduct constitutes the “violent public dis-
turbance,” Fla. Stat. § 870.01(2), in which a rioter participates? It
could be argued that the statute indicates that a riot requires more
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 21 of 29
21-13489...
...2017) (applying same canon under Florida
law).
To construe the statute, we would need to determine the
mens rea required for a conviction for rioting. The statute first pro-
vides that a person is guilty of rioting when he “willfully,” Fla. Stat.
§ 870.01(2), that is, intentionally, participates in the violent public
disturbance, see Harris v....
...2021) (defining “willful” under Florida state law). But the stat-
ute contains another reference to intent: it requires “an assembly
of three or more persons, acting with a common intent to assist
each other in violent and disorderly conduct.” Fla. Stat. § 870.01(2).
To be guilty of rioting does a person also need to share the com-
mon intent to assist in violent and disorderly conduct? Or can a
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 22 of 29...
...e to chant or hold signs.
Someone assists a person lying unconscious on the ground; an-
other person washes tear gas from his friend’s eyes. A few people
pull out their phones and record the fracas. Who has violated
§ 870.01? The parties sharply disagree about which participants
could be arrested and charged with rioting in this hypothetical sce-
nario.
According to the plaintiffs, every person present could be ar-
rested...
...who were injured,
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 23 of 29
21-13489 Opinion of the Court 23
or filmed the events. The plaintiffs acknowledge § 870.01’s savings
clause, which provides that the law “does not prohibit constitution-
ally protected activity such as a peaceful protest.” Fla. Stat.
§ 870.01(7)....
...6
The proper interpretation of the statutory definition is a
novel issue of state law that the Florida Supreme Court has yet to
address. After careful consideration, we exercise our discretion to
6 Governor DeSantis’s position that § 870.01(2) narrowed the common-law
definition of “riot” rests on the assumption that there is a distinction between
a “tumultuous” disturbance of the peace, as required under the common law,
and a “violent” one, as required by the statute....
...c disturbance that would be tu-
multuous but not violent. Id. at 23–24.
At oral argument Sheriff Williams also shifted positions as to the difference
between the statutory and common-law definitions, suggesting that
§ 870.01(2) narrowed the common-law definition by adding a second layer to
the intent requirement: those assembled must share a common intent to assist
each other in violent and disorderly conduct, and the individual facing prose-
cution must willfully participate. In this way, Sherriff Williams argued,
§ 870.01(2) provides additional protection for peaceful protestors....
...not certify those issues to a state supreme court). 7
We certify to the Florida Supreme Court the following ques-
tion of law:
What meaning is to be given to the provision of Flor-
ida 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
7 Although we conclude that certification is appropr...
CopyPublished | Court of Appeals for the Eleventh Circuit
...We therefore certify a question regarding the meaning of
“riot” in the new state law to the Florida Supreme Court.
I.
It has long been a felony under Florida law to engage in a
riot. See Fla. Stat. § 870.01(2) (2020) (“[A person] guilty of a riot, or
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 4 of 29
4 Opinion of the Court 21-13489
of inciting...
...at 753.
This “restrictive limitation[]” on the definition, the Florida Su-
preme Court said, ensured its constitutionality. Id.
With HB 1, the Florida Legislature amended the Florida
statute prohibiting riots, § 870.01(2), to add a definition of “riot.”
See HB 1 § 15....
...orderly 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.
Fla. Stat. § 870.01(2). 1 With HB 1, the Florida Legislature also
amended § 870.01 to specify that the statute “does not prohibit con-
stitutionally protected activity such as a peaceful protest.” Id.
§ 870.01(7); HB 1 § 15. Also relevant here, it added a requirement
that any person arrested for rioting “shall be held in custody” until
his bail hearing. Fla. Stat. § 870.01(6); see HB 1 § 15.
The plaintiffs in this case are organizations that regularly
stage peaceful protests, encouraging their members to come to-
gether to demonstrate their opposition to police violence and their
support for racial justice....
...ways—but the plaintiffs strive to keep the protests free from vio-
lence. Some plaintiffs designate members to attend protests as
“peacekeepers” tasked with keeping people with opposing views
1 In this opinion, when we say “§ 870.01(2),” we refer to the version of the
statute as amended by HB 1.
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 6 of 29
6 Opinion of the Court 21-13489
physically separated from one another....
...Peacekeepers have chased away counter-protestors in ef-
forts to stop the violence.
The plaintiffs sued Governor DeSantis, Sheriff Williams,
Leon County Sheriff Walt McNeil, and Broward County Sheriff
Gregory Tony, all in their official capacities, challenging
§ 870.01(2). Shortly after filing the complaint, the plaintiffs filed a
motion for a preliminary injunction to block Governor DeSantis
and the sheriffs from enforcing § 870.01(2)’s new definition of riot.
The plaintiffs argued that they were entitled to a preliminary in-
junction because they had a substantial likelihood of success on
their claims that, as amended, the statute prohibitin...
...The court de-
termined that the plaintiffs demonstrated a substantial likelihood
that they would succeed on their void-for-vagueness and over-
breadth claims. To evaluate these claims, the court explained, it
had to interpret the scope of § 870.01(2)’s prohibition on riots....
...After
parsing the statute, the court concluded that it “raise[d] grave con-
stitutional concerns.” Id. at 57.
HB 1, their motion for a preliminary injunction requested only that the court
enjoin enforcement of § 870.01(2) based on their void-for-vagueness and over-
breadth claims....
... USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 8 of 29
8 Opinion of the Court 21-13489
Addressing the plaintiffs’ vagueness challenge, the district
court concluded that § 870.01(2) was open to “multiple reasonable
constructions,” and thus “an individual of ordinary intelligence
could read the [statute] and not be sure of its real-world conse-
quence.” Id....
...cluded that the statute forced “would-be protestors” to choose “be-
tween declining to jointly express their views with others or risk
being arrested and spending time behind bars.” Id. The court fur-
ther concluded that “the vagary of [§ 870.01(2)] empower[ed] law
enforcement officers to exercise their authority in arbitrary and dis-
criminatory ways” because “the statute [left] unclear who must
share what intent to be arrested.” Id....
...For these reasons, it
determined that the plaintiffs were substantially likely to prevail on
their vagueness challenge.
The district court also determined that the plaintiffs were
substantially likely to succeed on their overbreadth claim. Sec-
tion 870.01(2), the court concluded, “criminalize[d] a large amount
of unprotected activity,” as well as “vast swaths of core First
Amendment speech.” Id....
...members face an injury that is sufficiently imminent for standing
purposes. First, the plaintiffs’ members wish to exercise their right
to protest, speech that is affected with a First Amendment interest,
and believe that § 870.01(2) prevents them from doing so....
...But it canceled its
plans because of its members’ fears of being arrested for violating
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 12 of 29
12 Opinion of the Court 21-13489
§ 870.01(2)....
...ive.
As the district court’s findings of fact reflect, the plaintiffs’ members
have engaged and continue to engage in self-censorship in response
to the prospect of being charged with the crime of “riot” under
§ 870.01(2)....
...Ex parte Young requires that the
state officer have “authority to enforce the challenged statute.” Id. at 1342.
We agree with the district court that, based on Ex parte Young, Governor De-
Santis is a proper party because he has statutory authority to enforce
§
870.01(2)’s prohibition on riots.
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 16 of 29
16 Opinion of the Court 21-13489
Governor of Ga.,
978 F.3d 1266, 1270 (11th Cir....
...The first fac-
tor “is generally the most important.” Id. at 1271 n.12. (internal
quotation marks omitted).
Governor DeSantis and Sheriff Williams argue that the dis-
trict court erred in concluding that the plaintiffs are likely to suc-
ceed on their claims that § 870.01(2) is unconstitutional because it
is void for vagueness and overly broad....
...ida Supreme Court.
To address why certification is warranted here, we begin by
explaining how the plaintiffs’ constitutional claims turn on a novel
issue of Florida state law, the meaning of “riot” under § 870.01(2).
In these circumstances, certification is appropriate to avoid the risk
of friction that may arise when a federal court endeavors to con-
strue a novel state law in the first instance....
...3 Page: 17 of 29
21-13489 Opinion of the Court 17
Eng. v. Arizona,
520 U.S. 43, 75 (1997). Indeed, certification affords
the State’s highest court an opportunity to interpret §
870.01(2) in
a way that may obviate the plaintiffs’ constitutional concerns.
Resolution of the plaintiffs’ vagueness and overbreadth
claims requires interpretation of §
870.01(2)....
...sheltered by the First Amendment, the doctrine demands a greater
degree of specificity than in other contexts”).
The parties’ arguments illustrate how the plaintiffs’ vague-
ness claim depends on the interpretation of § 870.01(2). The plain-
tiffs argue that § 870.01(2) “fails to define what it means to ‘partici-
pate’ in a violent public disturbance” or to define what the term
“violent public protest” encompasses, leaving it “hopelessly
USCA11 Case: 21-13489 Document...
...of 29
21-13489 Opinion of the Court 19
Like their vagueness claim, the plaintiffs’ overbreadth claim
turns on what conduct is prohibited by the definition of riot in
§ 870.01(2)....
...at 30 (“Because [t]he statute does not sweep in a substantial
amount of protected speech, or criminalize innocent behavior, it is
not unconstitutionally overbroad.” (internal quotation marks
omitted)).
To determine what qualifies as a riot under § 870.01(2), we
look to the “actual text of the statute,” Boos v....
...orderly 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.
Fla. Stat. § 870.01(2).
The plaintiffs contend that the text raises some questions
about what kind of conduct the statutory definition prohibits....
...After all, the
same participation trophy goes to the child who hit the game-win-
ning home run and the child who simply showed up to play the
game.
And what kind of conduct constitutes the “violent public dis-
turbance,” Fla. Stat. § 870.01(2), in which a rioter participates? It
could be argued that the statute indicates that a riot requires more
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 21 of 29
21-13489...
...2017) (applying same canon under Florida
law).
To construe the statute, we would need to determine the
mens rea required for a conviction for rioting. The statute first pro-
vides that a person is guilty of rioting when he “willfully,” Fla. Stat.
§ 870.01(2), that is, intentionally, participates in the violent public
disturbance, see Harris v....
...2021) (defining “willful” under Florida state law). But the stat-
ute contains another reference to intent: it requires “an assembly
of three or more persons, acting with a common intent to assist
each other in violent and disorderly conduct.” Fla. Stat. § 870.01(2).
To be guilty of rioting does a person also need to share the com-
mon intent to assist in violent and disorderly conduct? Or can a
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 22 of 29...
...e to chant or hold signs.
Someone assists a person lying unconscious on the ground; an-
other person washes tear gas from his friend’s eyes. A few people
pull out their phones and record the fracas. Who has violated
§ 870.01? The parties sharply disagree about which participants
could be arrested and charged with rioting in this hypothetical sce-
nario.
According to the plaintiffs, every person present could be ar-
rested...
...who were injured,
USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 23 of 29
21-13489 Opinion of the Court 23
or filmed the events. The plaintiffs acknowledge § 870.01’s savings
clause, which provides that the law “does not prohibit constitution-
ally protected activity such as a peaceful protest.” Fla. Stat.
§ 870.01(7)....
...6
The proper interpretation of the statutory definition is a
novel issue of state law that the Florida Supreme Court has yet to
address. After careful consideration, we exercise our discretion to
6 Governor DeSantis’s position that § 870.01(2) narrowed the common-law
definition of “riot” rests on the assumption that there is a distinction between
a “tumultuous” disturbance of the peace, as required under the common law,
and a “violent” one, as required by the statute....
...c disturbance that would be tu-
multuous but not violent. Id. at 23–24.
At oral argument Sheriff Williams also shifted positions as to the difference
between the statutory and common-law definitions, suggesting that
§ 870.01(2) narrowed the common-law definition by adding a second layer to
the intent requirement: those assembled must share a common intent to assist
each other in violent and disorderly conduct, and the individual facing prose-
cution must willfully participate. In this way, Sherriff Williams argued,
§ 870.01(2) provides additional protection for peaceful protestors....
...not certify those issues to a state supreme court). 7
We certify to the Florida Supreme Court the following ques-
tion of law:
What meaning is to be given to the provision of Flor-
ida Stat. § 870.01(2) making it unlawful to “willfully
participate[] in a violent public disturbance involving
an assembly of three or persons, acting with a
7 Although we conclude that certification is appropriate...
CopyPublished | Supreme Court of Florida | 1974 Fla. LEXIS 4393
PER CURIAM: This is an appeal from the Circuit Court of Duval County, Florida, transferred by the First District Court of Appeal. The Circuit Court upheld in this case the constitutionality of Section 870.01(2), Florida Statutes, F.S.A., which provides: “(2) All persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree....
CopyPublished | Supreme Court of Florida | 1975 Fla. LEXIS 4460
OVERTON, Justice. This case is before this Court upon the constitutionality of the riot statute, Section 870.01(2), Florida Statutes (1973). The appellant, Amos Baker, was charged in an information as follows: “AMOS BAKER, did then and there riot, or incite a riot, or encourage a riot.” The appellant moved to dismiss the information on the grounds that: “ . . . Chapter 870.01 of the Florida Statutes is unconstitutional in that it fails to set forth sufficient information and guidelines....
...” The trial court denied the motion to dismiss. We have jurisdiction. 1 The appellant was tried by a jury, which returned its verdict of guilty to the offense charged in the information. The appellant was sentenced to five years in the state prison. We hold Section 870.01(2), Florida Statutes (1973), is constitutional in accordance with our recent decision in State v....
CopyPublished | Supreme Court of Florida | 1975 Fla. LEXIS 4464
OVERTON, Justice. This case is before this Court upon the constitutionality of the riot statute, Section 870.01(2), Florida Statutes (1973)....
...“COUNT II FRANCIS KELLY, did then and there, willfully, maliciously and intentionally injure or damage real or personal property, to-wit: An International backhoe, the property of RUPERT BROWN, said damage being in excess of $200.00.” 1 The appellant moved to dismiss Count 1 on the grounds that: “. . . Chapter 870.01 of the Florida Statutes is unconstitutional in that it fails to set forth sufficient information and guidelines....
...The trial court denied the motion to dismiss. We have jurisdiction. 2 The appellant was tried by a jury, which returned its verdict of guilty to both Counts 1 and 2 of the information. The appellant was sentenced to five years on each count, the sentences to run concurrently. We hold Section 870.01(2), Florida Statutes (1973), is constitutional in accordance with our recent decision in State v....
CopyPublished | District Court of Appeal of Florida | 9 Fla. L. Weekly 1773, 1984 Fla. App. LEXIS 14493
BOOTH, Judge. This cause is before us on appeal from a judgment and sentence entered upon a jury verdict, finding the appellant guilty of the crime of riot, inciting, or encouraging a riot in violation of Section 870.01, Florida Statutes (1981), and sentencing him to five years imprisonment....
CopyPublished | District Court of Appeal of Florida | 1975 Fla. App. LEXIS 15015
an affray. Affrays are proscribed by Fla.Stat. § 870.-01(1)(1973). The victim was accosted by a group of
CopyPublished | District Court, N.D. Florida | 12 Fed. R. Serv. 2d 1268, 1968 U.S. Dist. LEXIS 9214
..., Florida, or of Alachua County, Florida, seeking an injunction restraining the defendants, “their agents, employees, attorneys and all others acting in concert therewith from the enforcement, operation or exe *773 cution of ss.
806.01 and 806.02,
870.01 and
843.01 of the [Statutes of the] State of Floridaand further restraining the defendants, their agents, etc., “from impeding, intimidating, hindering and preventing the individual plaintiffs and the friends, supporters and members of the o...
...property of himself or of another, not included or described in the preceding section, shall be guilty of arson in the second degree, and upon conviction thereof, be punished by imprisonment in the state prison for not more than ten years. (c) F.S. § 870.01, F.S.A....
