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State Seeks To Skirt Mediation In Challenge To Florida's Protest Law

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JOHN RAOUX / AP
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Demonstrators march during a protest over the death of George Floyd, Tuesday, June 2, 2020, in Orlando, Fla. Floyd died after being restrained by Minneapolis police officers on May 25.

Lawyers for the state are seeking to sidestep mediation ordered by a federal judge, in a legal challenge to a controversial law championed by Gov. Ron DeSantis aimed at cracking down on violent protests.

A lawsuit filed by a coalition of groups, including the Dream Defenders and the Florida State Conference of the NAACP, contends that the “Combating Public Disorder Act” (HB 1) will have a “chilling” effect on protected speech and violates equal-protection and due-process rights.

Chief U.S. District Judge Mark Walker ordered mediation in the case to begin by Nov. 12 and be completed by Nov. 26.

But in a motion filed Tuesday, lawyers for Attorney General Ashley Moody and DeSantis said that mediation, commonly ordered by judges, won’t be productive.

“The only relief plaintiffs seek is a declaration that the act, or portions thereof, are unconstitutional and enjoinder of its enforcement. No monetary damages are sought,” the state’s attorneys wrote in the three-page motion. “Mediation cannot result in any negotiated relief to plaintiffs because they seek to strike statutes enacted by the Florida Legislature which the parties have no legal authority to agree are unconstitutional.”

Mediation would not be “a worthwhile use of the parties or the court’s resources,” the state’s lawyers also argued.

The anti-protest bill was one of DeSantis’ top legislative priorities. The Republican governor touted the plan following protests across the nation last year following the killing of George Floyd, a Black man, by a Minneapolis police officer. The law, passed this spring by Florida’s Republican-controlled Legislature, includes a wide range of steps to penalize or enhance existing sanctions on violence and property damage related to protests.

DeSantis has boasted about the law, signing it this spring in Polk County while flanked by law-enforcement officers. During that event, he called it “the strongest, anti-rioting, pro-law enforcement piece of legislation in the country.”

“In Florida, we are taking an unapologetic stand for the rule of law and public safety,” DeSantis said in a prepared statement on the day the bill was signed. “We are holding those who incite violence in our communities accountable, supporting our law enforcement officers who risk their lives every day to keep us safe and protecting Floridians from the chaos of mob violence.”

The law is multifaceted, including creating a new crime of “mob intimidation” and enhancing riot-related penalties. It also could help shield people from civil liability if they injure or kill protesters involved in riots --- an issue known as granting an affirmative defense.

In a motion seeking to dismiss the case, DeSantis and Moody raised a series of arguments, including saying that the measure does not curb free-speech rights of peaceful protesters.

“The act does not discourage, much less prohibit, any person from peacefully assembling, demonstrating, or speaking on any issue,” the brief filed last month by DeSantis’ lawyers said. “The act does not even apply to peaceful demonstrations or forms of expression. Rather, it outlaws people coming together, regardless of their motivation, to commit violence, damage property, or intimidate others into assuming or abandoning a viewpoint against their will. Prohibiting violence and destruction does not restrict constitutionally protected expression --- only dangerous, unlawful behavior.”

But the lawsuit argues, in part, that the measure is overbroad, vague and “subjects non-violent protesters to criminal liability for exercising protected rights to speech and assembly.”

As an example, the lawsuit says peaceful protesters at demonstrations could face criminal charges if they are in “close proximity to an act of violence or property destruction in which they themselves do not participate.”

“Because (a section of the law) confers discretion to law enforcement to arrest nonviolent protesters in close proximity to a violent outburst that is caused by others, would-be protesters have already been and will continue to be discouraged from participating in demonstrations for fear that the intents and actions of others may subject them to severe criminal penalties,” said the lawsuit, filed on behalf of the plaintiffs by attorneys from the NAACP Legal Defense and Educational Fund, the American Civil Liberties Union of Florida, Community Justice Protect and the national law firm of Akin Gump Strauss Hauer & Feld.

The lawsuit also says the measure violates equal-protection rights because it “targets Black organizers and organizations. The text, legislative history, timing, and public statements about the act made by Florida officials all make clear that the act was racially motivated.”

The law, one of the biggest issues of this year’s legislative session, also has drawn a lawsuit that was filed April 21 in federal court in Orlando. That lawsuit also is pending.