Police arrested Black Lives Matter protesters in Columbus Ohio last summer. A few months later, state lawmakers proposed a bill that would have created stiff penalties for protesters who block traffic, and create affirmative defenses for people who harm or kill “rioters.” The bill failed, but similar legislation is still pending in many states. (Photo by Stephen Zenner / SOPA Images/Sipa USA)(Sipa via AP Images)
Weeks after Florida Gov. Ron DeSantis signed into law what he called “the strongest anti-looting, anti-rioting, pro-law-enforcement piece of legislation in the country,” two different federal lawsuits sought to overturn it.
The 52-page law, known as H.B. 1, expanded the definitions of rioting and inciting a riot. It added stiffer penalties for riot-related offenses and barred defendants from being released on bail before their first court appearance. The law made it a felony for three or more people to act jointly in a way that could harm people or property. H.B. 1 also created an affirmative defense for those who harm or kill protesters accused of “acting in furtherance of a riot.”
To Francesca Menes, co-founder of the Black Collective, a Florida nonprofit promoting the political and economic empowerment of Black communities, there was no question who the new law was meant for.
“This is an attack on us,” Menes said of H.B. 1. “This is a very clear, blatant attack on Black people exercising a right that they historically exercised throughout the civil rights movement.”
Racial justice protests proliferated last May, sparked by a viral video of a white Minneapolis police officer killing George Floyd, a Black man who was being arrested for using a counterfeit $20 bill. The protests inspired mainstream conversations about racism, inclusion and a reimagining of the concept of public safety, but property damage during some demonstrations brought on a conservative backlash, spurring laws like H.B. 1.
When that law passed and went into effect in April, Menes worried that taking to the streets would put Black Collective members in danger. They’d risk not only arrest, but the lasting roadblocks to housing, employment, loans and voting that come with a felony conviction.
“We can’t put people at risk of being arrested, when until you stand in front of a judge, you can’t post your bond. People have to be prepared to be held for three to four days. You could lose your job,” she told Law360. “You’re messing with the livelihood of Black communities, and basically telling us to sit down and shut up.”
Instead of protesting, volunteers knocked on an estimated 10,000 doors in Florida to warn people about the new law. And the Black Collective, along with other Black activist organizations including the NAACP of Florida, Black Lives Matter of Broward County and the Dream Defenders, also filed federal litigation alleging the new law was unconstitutional.
That lawsuit, in which Dream Defenders is the named plaintiff, could become a blueprint for future legal challenges to so-called “anti-rioting” laws, which have proliferated since Floyd’s killing.
Since last May, the number of bills seeking to limit when, where and how demonstrators can protest have tripled compared to prior years, according to data compiled by the International Center for Not-for-Profit Law.
“It’s been a real spike this year at just a completely different level,” Nicholas Robinson, a legal adviser for ICNL, told Law360. “We’ve never seen anything at the scale that we’ve seen this past year. The overwhelming number of bills this year were in response to the Black Lives Matter protests last summer.”
Those bills target protesters who block traffic and gather without a permit. One would make it impossible to be a public employee in Indiana after an unlawful assembly conviction. Several bills make it illegal to protest near “critical infrastructure,” like oil and gas pipelines. Some legislation, including the Florida law, an Oklahoma law and a bill in Iowa that seems poised to pass, have granted legal immunities to motorists who hit protesters with their cars.
Nine bills have already passed, many of them in April.
Prosecutors aren’t necessarily in favor of the new laws.
La Bravia Jenkins, the commonwealth’s attorney for Fredericksburg, Virginia, said her town of about 30,000 had “some pretty hairy incidents” around this time last year, as protesters gathered in the wake of Floyd’s killing. Fredericksburg’s mayor ended up apologizing for police officers’ use of tear gas against demonstrators, and those incidents were the subject of a federal lawsuit against the city, alleging “excessive use of force, unlawful arrests, and intimidation.”
Jenkins said protesters were blocking traffic, violating curfew, and “in many instances, being nasty.” Her office charged many of them with curfew violations.
But Jenkins said she didn’t support recent bills in Virginia that would have banned protesting on highways, expanded the definition of a riot, and increased penalties for incitement.
“I think that the tools we have are adequate,” she said. “Obviously everyone has the right to express themselves under the First Amendment. I’m not looking to curtail that.”
Those constitutional concerns are why legal experts expect more litigation challenging the constitutionality of these laws.
“I think we’ll certainly see more legal challenges in the coming weeks and months,” Robinson said.
Vera Eidelman, a staff attorney with the American Civil Liberties Union, confirmed civil rights attorneys have their eyes on the legislative landscape.
“We will be watching closely to see how this new tranche of laws gets applied,” she said. “I think there may be some other laws in the most recent tranche that may be susceptible to facial challenges.”
The Florida lawsuits could serve as a bellwether for future litigation that could challenge these laws as unconstitutional, according to Rachel Kleinman, senior counsel for the NAACP Legal Defense Fund, and co-counsel for the Dream Defenders suit.
“I definitely think this case is being closely watched, maybe by both sides, to see what kind of challenges are going to be successful, and how far people can push,” she said.
The Dream Defenders suit alleges that H.B. 1 violates the First Amendment because it limits free speech and targets specific political messages. The litigation also includes a 14th Amendment challenge, arguing the law was “designed to target Black-led protests.” And it alleges the law includes a definition of rioting that is so broad, it amounts to a due process violation, since protesters can’t be sure what behavior will be considered illegal.
This is a very clear, blatant attack on Black people exercising a right that they historically exercised throughout the civil rights movement.
The Black Collective
“These laws were passed in context,” Kleinman said. “This is a direct attempt to stifle racial justice protests, and a direct threat to the call that protesters have made to reimagine public safety. We think it’s important to really lift that up, that these are bills aimed at racial justice, against racial justice.”
Representatives for the Florida Attorney General’s Office and Gov. Ron DeSantis did not respond to comment requests.
Another federal lawsuit from the Lawyers Matter Task force, a racial justice nonprofit, includes similar due process and free speech arguments, and alleges an additional Eighth Amendment violation, saying the new law amounts to cruel and unusual punishment “by depriving a presumably innocent citizen of the right to assemble, the right to timely bail, and a right to a punishment that has not been arbitrarily enhanced.”
Aaron Carter Bates, who represents Lawyers Matter Task Force, called the Eighth Amendment claim “a little bit more of a novel legal theory.”
“The crux of that argument is that under H.B. 1, you are denied bail until first appearance, which is a constitutional violation in our opinion,” he said. “And also you’re subjected to enhanced criminal penalties that have no rational, reasonable basis in the law.”
The plaintiffs in that suit, filed a few weeks before the Dream Defenders suit, already sought a temporary restraining order to prevent the law’s implementation. U.S. District Judge Paul Byron denied the bid, saying that plaintiffs would have to “explain how those specific provisions are unconstitutional,” but he added they could do so in a future preliminary injunction motion.
Some constitutional arguments may be more persuasive than others, according to Vanderbilt University law professor Gautam Hans, who serves as director of the Stanton Foundation First Amendment Clinic.
Judges can be wary of taking on a legislative role by striking down laws, Hans said, but in the last 15 years or so, the U.S. Supreme Court has espoused a more “expansive view of what the First Amendment preempts” — from press freedoms to religious liberties.
“The First Amendment striking down regulation is having a moment these days,” he said.
Enrique Armijo, a professor and associate dean at the Elon University School of Law, also thought the First Amendment and due process arguments could succeed in court, especially since the overly broad definitions in the law could arguably have a chilling effect.
“If I want to protest something and I don’t know whether or not I’m going to get arrested for protesting, I’m just going to sit at home. That’s me not engaging in constitutionally protected activity,” he said. “Courts are really worried about that.”
Armijo added that the equal protection claim might be more of an uphill battle. The defendants could argue H.B. 1 wasn’t only a response to progressive racial justice protesters, but the right-wing insurrectionists who stormed the Capitol building in January, and that the law is “not based on a particular viewpoint,” according to Armijo.
“That to me seems at least plausible, like an argument that might be accepted,” he said.
But Boston University professor Karen Pita Loor, an expert on protest policing, thought the Dream Defenders’ complaint made a compelling 14th Amendment argument. It noted the bill was drafted before the Capitol siege and argued lawmakers were “put on notice” of the law’s discriminatory effect when opponents testified it would disproportionately affect Black activists.
That discrimination is already occuring, according to Loor’s research for a forthcoming Michigan Law Review symposium.
Though participants in last summer’s racial justice protests were diverse, people of color seemed more likely to face punishment. During the 11 days after George Floyd’s death, Black New Yorkers who were arrested during protests were more likely to see hasher charges — about 15.7% of Black defendants were charged with a felony, compared to 3.5% of white protesters, according to a report from the New York Attorney General’s Office.
“In places that we think of as liberal, what we have seen is not only police but also prosecutors behave differently depending on the race of the activists,” Loor said. “We see prosecutors charging activists differently in the same jurisdiction when the activists are people of color.”
Litigation that can point to similar trends in enforcement of the Florida law might be more persuasive than a facial Fourteenth Amendment claim, Hans said. Bringing a pre-enforcement challenge can be tricky. It’s difficult to demonstrate that a plaintiff is the plausible target of a law, and that can raise standing, mootness and ripeness concerns, he said.
“If you’re not going to assert a constitutional challenge in response to a criminal prosecution, there are all these nitty-gritty details that, even if we think the law is facially unconstitutional in terms of who it targets and why, it’s hard to find the right person to bring that challenge,” he said.
Kleinman said that the racial justice activists she represents have changed their behavior for fear of arrest, and have expended resources offering “know your rights” training for their members.
“All of our plaintiffs groups have already been directly harmed by this law,” she told Law360. “That being said, absolutely once people start being arrested under this law, there’s no reason why we wouldn’t start adding people as plaintiffs to this suit, and obviously they would have standing as well. But we don’t feel we need to wait for a strong standing argument.”
Bills targeting protesters have proliferated in the last year, but they’re nothing new, and facial challenges have worked against them before.
In 2019, the ACLU challenged a South Dakota law creating a civil liability for “riot boosters” — people who encouraged a protest resulting in property damage or violence. The suit, filed a day after the law passed, said the legislation was unconstitutional and sought to “chill peaceful protests of the Keystone XL Pipeline.” The state settled, promising not to enforce the law against peaceful protesters.
In January 2020, a Missouri state court judge granted a permanent injunction against a law barring public employees from picketing, finding it was unconstitutional. Public sector unions filed a complaint in 2018, the day before the law went into effect.
ACLU affiliates in Nebraska and Missouri have also won settlements over traffic obstruction ordinances and refusal to disperse laws that Eidelman said were “very nebulous and gave officers the discretion to shut down fully lawful protests.”
“This is not new,” Eidelman said. “Since I have been following this in the last five years, this has certainly been a trend that we have seen, of legislators choosing to respond to dynamic, powerful, impactful protests by seeking to silence them rather than actually choosing to respond to their messages.”
Loor thinks additional facial challenges could be on the way, as civil rights attorneys plan out their national strategy. But there could also be a second wave once demonstrators are arrested and charged under the new laws. Those could bring with them new legal arguments, like Fourth Amendment unlawful arrest claims, she said.
Bates welcomes additional litigation, and advises fellow civil rights attorneys to remember they’re “not reinventing the wheel.”
“The heavy lifting has been done in many of these arguments,” he said. “Just be careful you’re not wading into a situation where you’re creating bad law.”
Kleinman said effective impact litigation represents plaintiffs who are most deeply affected by the new laws, like “groups advocating for racial justice, people who are calling for a reimagination of public safety.”
“Bring out their story, and I think lawsuits are likely to be more effective,” she said.
–Editing by Katherine Rautenberg.