There is a lawsuit brewing in Florida regarding a new law passed last spring. This, like so much in our society seems to be dividing us. The law is a reaction, in part, to demonstrations in the summer of 2020. Those events illustrated that there are very different views or perspectives on our world. It would, perhaps, be beneficial if we could all be more empathetic of others around us. It is reality, however, that a great many of us are caught up in our day-to-day and really don’t spend large blocks of time striving to understand the struggles of our fellow travelers.
One may struggle to understand how busy a household can get with a couple of careers, a couple of kids, a couple of school schedules, a couple of extracurriculars, sprinkled with work projects, homework, sport practices, grass to mow, a house to clean, and I could go on but you get the picture. How often do we step back and view the “big picture” of society (whether that is our neighborhood, town, metropolitan area, nation, or world)?
I experienced a demonstration in Paradise in the summer of 2020. Here in paradise there is a railroad bridge that has likely stood since Don Tristan DeLuna built the first east-west railroad to the second Florida settlement in St. Augustine back in 1565 (OK, clearly that is an exaggeration, but now you know Paradise was first; before Roanoke in 1585, Jamestown in 1607, the Pilgrims in 1620). De Luna landed in Pensacola in 1559, but the group was decimated by a four-day hurricane soon thereafter. Yes, a "four-day hurricane" event.
This railroad trestle is painted persistently with the perspectives of anyone that chooses to express. The messages have at times been inspirational, humorous, and even confusing. People here in Paradise used to drive through the bridge periodically just to see what its latest paint job portrays. Not so much lately due to the construction on the new U.S. 98 bridge nearby. In 2020, someone put George Floyd on it (I think freehand, which speaks to the artist’s talent; I envy the skill to be able to convey emotion in such a format).
That railroad bridge, known here in Paradise as the “graffiti bridge,” became the situs of gatherings during that time. It had a convenient location before they started building this new bridge, see If You Were Half the Bridge I Am (2021)). There is parking at a nearby boat launch, and the traffic is manageable. For whatever reason, some portion of those attending one such demonstration event elected to move down the street to U.S. Highway 98 (which crosses that new bridge). And, there a small crowd got in the way of traffic on a road that which many, even in the absence of a demonstration, are afraid to drive on, more or less walk on.
How and why remain in dispute, but the news reported that somehow one of the pedestrians ended up on the hood of a vehicle. There may be dispute as to whether the driver got in the pedestrian’s way or vise-versa, But, what is known is that the driver did not stop and proceeded across that bridge (affectionally referred to as the “three-mile bridge,” guess how long it is) with the pedestrian perched on the hood. There were allegations each way; there was mention of “stand your ground,” and in the end the hood-riding passenger was taken into custody. He alleged that he was entitled to the protection of Florida's "stand your ground" law. One report alleged that the driver "forced his way through the picket line," which perhaps was not on the pedestrian way but in the driving portion of the highway. Perhaps, the protestors obstructed a highway with their picket line?
Now, to be fair, I learned in high school that getting on the hood (or roof) of a moving car is not a great idea. I will never forget the time my old friend Horace Middlemier jokingly jumped on the roof of Kimmy Clark’s Cutlass’ T-top (disclaimer: Kimmy Clark is fictitious name, any similarity to any real person is purely coincidental, the T-top is, however, real). First, his weight bent the roof rendering reinstallation of the glass panels dependent upon a local body shop.
But second, in a less-than-Olympic-quality dismount, Horace left the vehicle over the rear deck lid when Kimmy concluded that she’d had enough of his antics. Horace had spots on his legs and arms that looked like hamburger, and a bump on the head that some of us thought might oughta be looked at by a doctor. I digress, but the point is riding on the top of cars can both aggravate the driver and lead to injury. Some may struggle to see climbing onto a vehicle as standing your ground, but that is for the courts.
The bill passed in Florida this spring is a broad approach to "combating public disorder," according to the bill. It provides definitions and prohibitions. There is currently a lawsuit underway by groups that allege it will have a chilling effect on demonstrations, that its language is not sufficiently specific (referred to by lawyers as "vague,"), and that some people might be penalized by mere presence in a place despite their personal lack of involvement in any specific act of mayhem or violence (referred to by lawyers as "overbroad").
Various groups filed a lawsuit striving to block the implementation of this new law, naming as defendants the Governor, Attorney General, and three Florida county sheriffs. In August, the Tallahassee Democrat reported that a federal judge had declined to dismiss the suit, except that the Attorney General was dismissed as a party. The challengers allege that the definition of "riot" is too "vague and overbroad," that the law imbues law enforcement with too much discretion, and that First Amendment expression could be hindered or hampered.
At what point do your rights end and those of others begin? In my classroom lectures, I ask students whether they have a right to use their property as they wish; most see an easy answer there. Then, I query, shouldn't it be their own decision if they wish to have Van Halen play at their birthday party (Jeff Spicoli, Fast Times at Ridgemont High, 1982)? I generally get good agreement with the concept, though this generation is not as into Van Halen as you might think. Then I asked how they would feel if instead, it was their neighbor with Van Halen playing in their back yard? Well, we continue, how about if it is 02:30 and you have to work tomorrow?
You see, we all have rights in this country. Our founding fathers believed that these rights were "truths," and not theories. They believed that they were "self-evident" and obvious. Despite their honorable and principled Declaration, there is likewise no doubt that they had rather hypocritical views regarding the "all men" portions of this document, and we need not explain further the utter absence of "all women" from their sentiments. That said, recognizing that there are flaws in our foundation and history, the fact is that our rights (mine to quiet enjoyment and yours to Van Halen) conflict periodically. Our laws are persistently challenged by the need for a society that protects our rights, recognizing that we are all very different individuals with competing and sometimes conflicting rights.
So, HB1 recognizes that demonstration can yield to more. Peaceful protest can yield to rioting, looting, destruction of property, and injury to persons. Each person has the right to be safe from injury, assault, and battery. Each property owner has the right to her/his property. This conflict between the right to protest and the rights of others is not new. In any society, the government will be tasked to address the balancing of various rights and responsibilities.
In the Paradise example above, did the motorist have the right to operate his motor vehicle on a public roadway? Did the protestors have the right to stand in the street and impede the motorist? Does a protestor have the right to jump atop Kimmy Clark's Cutlass causing her discomfort or fear? Does the protestor have the right then to damage Kimmy's car? May Kimmy drive away with the protestor perched atop the car? If the protestor, having chosen a precarious and unsafe perch, falls to the pavement should Kimmy be responsible for the injuries or should that fall to the protestor who chose that perilous perch?
House Bill One (2021) provides an array of provisions striving to address these questions. It includes definitions for "crimes of affray, rioting, and inciting a riot." There are enhanced penalties for those who incite riot, or commit "assault or battery . . . in furtherance of a riot." There are penalties for those who elect to strike or touch (battery) a police officer in such a riot, or strive to intimidate or forcefully compel others. There are penalties for "defacing, damaging, destroying," or otherwise interfering with historic property, and for theft of property in the course of such a protest.
The new law imposes new or increased "minimum sentence(s) for specified crimes committed in furtherance of a riot," and limits the ability for rapid bonding out following arrests for various crimes. This is not to say bonding out is precluded, but that it is delayed until there is a court hearing, which could require a day-long jail stay. In the midst of various news stories about decisions to "defund the police," this bill allows objection to such local budget changes for consideration at a state level.
The law of sovereign immunity makes many government officials immune to civil lawsuits. However, this new law removes that protection for government officials when "tort claims aris(e) from a riot or unlawful assembly" and the local government has "breache(d) its statutory duty to allow law enforcement to respond appropriately to
protect persons and property." And, for the demonstrator injured by jumping upon someone's automobile, this law "creates an affirmative defense" if the "plaintiff's injury or damage was
sustained as a result of participating in a riot."
The trial judge has concluded that the new law violates the First Amendment and its protections of speech and assembly. That decision was made in granting an injunction in September 2021. The trial judge concluded that the law is vague and that this "vagueness permits those in power to weaponize its enforcement against any group." That is unlikely to be the last word, and as the decision comes from the Federal District Court, the next analysis will be by the 11th Circuit Court of Appeals.
As the case moves forward, there may be a discussion of where protest ends and riot begins. There may also be a discussion of the rights of people to be secure in their own person and property. Can there be a balance between your right to Van Halen and your neighbor's right to a night's sleep?
