Legal Battle Over Protest Law Could Offer Grammar Lesson

By Dara Kam, News Service Florida

August 25, 2021

TALLAHASSEE --- Parsing sentences might be a lost art, but attorneys in a court battle over a controversial Florida law that targets violent protests might want to brush up on their grammar skills in advance of a hearing next week.

Chief U.S. District Judge Mark Walker this week ordered attorneys to diagram wording in part of the law (HB 1), which, among other things, enhances existing penalties and creates new crimes related to violent protests. Groups including the Dream Defenders and the Florida State Conference of the NAACP filed the lawsuit in May, alleging that the measure will have a “chilling” effect on protected speech and violates equal-protection and due-process rights.

Gov. Ron DeSantis made the issue a top priority during this spring’s legislative session after nationwide protests in 2020 following the death of George Floyd, a Black man who was killed by a Minneapolis police officer.

Walker is slated to hold a hearing Monday on the plaintiffs’ request for a preliminary injunction to block the law. But first, he wants attorneys in the case to analyze a section of the law that creates a new definition of “riots.” The section is a key focus of the lawsuit.

“All persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree,” the law says.

In a two-page order issued Tuesday, Walker wrote that, because “the primary issue in this case is the language and syntax” of that part of the statute, lawyers in the case “shall diagram” it. The chief judge gave lawyers until Friday to file responses.

“The parties may submit more than one sentence diagram in the event they believe the statute is susceptible to being diagrammed in multiple ways,” Walker, an at-times acerbic jurist who has frequently clashed with state lawyers, wrote. “The parties must also provide a written explanation of each diagram they submit that identifies the basis for the placement of each statutory term within the diagram and the parts of speech they assign to each term, e.g., noun, pronoun, verb, adverb, adjective, preposition, prepositional phrase, reciprocal pronoun, participial phrase, adverbial prepositional phrase, etc.”

While legal complaints and court decisions often hinge on interpretations of wording in laws, it’s rare for judges to order lawyers to parse statutes, according to veteran Tallahassee attorney Mark Herron.

“A request for supplemental briefing is not unusual and on occasion a case will be decided on the basis of the grammatical construct of a sentence as the example cited in the footnote indicates. What may be unusual here is that Judge Walker is seeking detailed input from the parties,” Herron told The News Service of Florida.

The chief judge’s order included a footnote citing a 2015 ruling by the 10th U.S. Circuit Court of Appeals for “a relatively recent example of sentence diagramming in action.”

The appellate court’s decision included a diagram of a federal statute that enhances sentencing penalties when firearms are used in violent or drug-trafficking crimes. The wording in the federal law had been “enigmatic” since its passage in 1968, then-Judge Neil Gorsuch, who is now a U.S. Supreme Court justice, wrote in the majority opinion.

“True, in the business of statutory interpretation we do not always bow to linguistic rules. A court’s job, after all, is to discern the statute’s meaning, not grade its grammar, and sometimes a law’s meaning can be clear even when the grammar’s downright awful,” Gorsuch wrote.

Walker this month refused the state’s request to toss out the challenge to the protest law, leaving DeSantis and three sheriffs as defendants but dismissing Attorney General Ashley Moody from the case.

The chief judge also rejected a state request to hold Monday’s hearing in person amid a spike in COVID-19 cases and hospitalizations attributed largely to the delta variant of the coronavirus. Plaintiffs asked that the hearing be held remotely, “given the dramatic change in the pandemic,” and Walker agreed in an order issued Friday.

“Plaintiffs do not overstate the situation. The current spread of COVID-19 is a tragedy. Requiring in-person appearances at the preliminary-injunction hearing only unnecessarily increases the risk to those involved, as well as court staff, and potentially contributes to the spread of COVID-19,” he wrote.

The groups challenging the law argued that a definition of “riot” in the measure is vague and overbroad and may criminalize “merely being present at a demonstration where violence or property destruction occurs.” Also, they argued the law gives police too much enforcement discretion and violates First Amendment rights.

Walker allowed the challenge to proceed on certain sections of the law. Those parts create the new riot definition; make it a noncriminal traffic infraction to obstruct public streets; and require people arrested for the misdemeanor offense of “unlawful assemblies” to be held without bail until their first appearances in court.

In a June 2 motion, DeSantis said the lawsuit is based on “unfounded, misleading, and conclusory allegations of constitutional violations.”

The law, dubbed the “Combating Public Disorder” act by the Republican-controlled Legislature, “does none of the things plaintiffs allege,” DeSantis’ motion said.

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