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How DeSantis wants to crack down on protests: Expand ‘stand your ground’

How DeSantis wants to crack down on protests: Expand ‘stand your ground’

by Ana Ceballos and David Ovalle | Tampa Bay Times  |  Published on November 11, 2020

TALLAHASSEE — Gov. Ron DeSantis has drafted “anti-mob” legislation that would expand Florida’s “stand your ground” law — a move that critics say will allow armed citizens to shoot suspected looters or anyone engaged in “criminal mischief” that disrupts a business.

Lawyers say it’s just one of the many troubling aspects of the draft bill being pushed by the Republican governor in response to police-brutality protests that erupted across Florida and the United States this summer.

“It allows for vigilantes to justify their actions,” said Denise Georges, a former Miami-Dade County prosecutor who had handled stand your ground cases. “It also allows for death to be the punishment for a property crime — and that is cruel and unusual punishment. We cannot live in a lawless society where taking a life is done so casually and recklessly.”

The draft legislation put specifics behind DeSantis’ pledge in September to crack down on “violent and disorderly assemblies” after he pointed to “reports of unrest” in other parts of the country after the high-profile death of George Floyd, a Black man killed by a white Minneapolis police officer.

The proposal would expand the list of “forcible felonies” under Florida’s self-defense law to justify the use of force against people who engage in criminal mischief that results in the “interruption or impairment” of a business, and looting, which the draft defines as a burglary within 500 feet of a “violent or disorderly assembly.”

Other key elements of DeSantis’ proposal would enhance criminal penalties for people involved in “violent or disorderly assemblies,” make it a third-degree felony to block traffic during a protest, offer immunity to drivers who claim to have unintentionally killed or injured protesters who block traffic, and withhold state funds from local governments that cut law enforcement budgets.

DeSantis, whose crackdown mindset mirrors that of President Donald Trump, announced he would push such legislation in the heat of the 2020 presidential election as he tried to deliver Florida to Trump, who lost re-election but won Florida by nearly four points.

Shortly after the announcement, a DeSantis’ administration attorney circulated a draft version of the bill — titled “anti-mob legislation draft” — to the Senate Committee on Criminal Justice, according to emails and a copy of the bill draft obtained by the Times/Herald as part of a public records request. The governor’s office sent the same draft bill to the House Judiciary Committee, House spokeswoman Jenna Sarkissian said.

“This whole effort is political theater,” said Hillsborough State Attorney Andrew Warren, a Democrat. “We already have the tools we need to prosecute people who create unrest and violence, and Florida has largely kept that kind of behavior in check, which is why it seems like this is just about putting on a political show. For real security, for everybody, we need to balance ideas about punishment with a real look at what’s driving this tension.”

“It’s clear that the Trump beauty pageant is still going on with governors and senators, who all want to be the next Trump. And the governor is clearly a very good contestant,” said Miami Beach Mayor Dan Gelber, a former federal prosecutor and Democratic state legislator who was a critic of the stand your ground law, when it first passed in 2005.

Gelber said the governor’s draft bill “sounds like an invitation to incite violence.”

‘Written with a political bent’
As of Tuesday, the proposal remains just that, a draft. No bills have been filed in either the House and Senate, and no legislators have publicly said they will sponsor the proposal ahead of the 2021 legislative session, which convenes March 2nd. Committees begin meeting in January.

Yet a number of attorneys are already raising concerns about the governor’s draft, including the expansion of Florida’s stand your ground law.

The law eliminated the duty of a person to retreat before using force to counter a threat — which critics say fosters a Wild West shoot-first, ask-questions-later mentality. It also gave judges more leeway to grant “immunity” to someone they believed acted in self-defense before ever letting a case get to the jury.

In 2017, Florida lawmakers changed the law, forcing prosecutors to shoulder the burden of disproving a defendant’s claims of self-defense. Prosecutors must prove by “clear and convincing” evidence that someone was not acting in self-defense.

The changes to Florida’s self-defense law have long been opposed by many in law-enforcement. Two years ago, State Attorney Katherine Fernandez Rundle became the only elected prosecutor in the state to call the latest iteration of the law unconstitutional.

Over the years, judges in Miami have thrown out murder cases in a number of high-profile incidents, including a man who shot another man as both cowered from the sound of gunfire outside a barbershop, and a man who chased down a car-radio thief and stabbed him the heart.

Expanding the list of “forcible felonies,” as proposed by DeSantis, to include strictly property crimes like criminal mischief that results in “interruption or impairment” of a business is vague and could lead to unnecessary violence, said Reid Rubin, a retired Miami-Dade homicide prosecutor.

“Any number of things could occur. ‘Interruption or impairment’ to what degree? You could have people who are peacefully assembling who go in and out of a store — and a store owner or even a passerby could get nervous and misinterpret something and think they have the right to use unnecessary physical force — or even deadly force,” Rubin said.

Former Miami-Dade prosecutor Aubrey Webb was aghast at the proposed expansion of the state’s stand your ground law.

“It dangerously gives armed private citizens power to kill as they subjectively determine what constitutes ‘criminal mischief’ that interferes with a business,” Webb said. “Someone graffiti-ing ‘Black Lives Matter’ on a wall? Urinating behind a dumpster? Blocking an entrance?”

“The Boston Tea Party members would have been lawfully shot under Florida’s law by the British East India Tea Company,” he said.

Warren said the proposal includes legal redundancies.

“It’s crucial for people to be able to defend themselves and their property—which is why existing Florida law already offers very strong protections,” Warren said. “We need to be incredibly careful when we expand laws that give ordinary citizens the power to kill someone without any due process. Busting out a window or breaking into an empty store should lead to an arrest and criminal consequences by law enforcement professionals—not Wild West vigilantism that puts more people in harm’s way.”

Miami defense lawyer Phil Reizenstein agreed. He said the proposed changes were “clearly written with a political bent” in response to the police-brutality protests that erupted across the country this spring and summer.

“The laws existing in Florida have been able to address social situations in the past. These laws address no gaps in the current laws,” Reizenstein said. “It’s bad policy to enact criminal statutes for transient political issues. Time and money are better spent addressing the underlying causes of the unrest.”

Will lawmakers consider it?
DeSantis’ office did not immediately respond to requests for comment on the draft legislation. And it is not clear who advised the governor in drafting the details in the proposal.

When the governor publicly proposed the measure, he did so alongside law enforcement officials and top legislative Republicans. The pitch drew quick backlash from Democratic state legislators, some of whom said the proposal was “unconstitutional,” an “outrageous prioritization of a non-issue” and a “fear tactic” to appeal to Republican voters ahead of the November election.

Still, DeSantis urged state lawmakers to consider the proposal in November — a timeline that won’t be met. House and Senate leaders have not announced any meetings on policy next week, when legislators will be in Tallahassee to hold a post-election organizational session.

In the weeks leading up to the election, it became routine for DeSantis to tout the proposal at Trump rallies in Florida. He would push the message of “law and order” by telling the crowd that he was proposing the “strongest pro-law enforcement, anti-rioting, anti-looting legislation anywhere in the country.”

Incoming Senate President Wilton Simpson is “interested in taking a look at the issue,” but there is no update on what the Senate plans to do with the draft language the governor’s office emailed in September, according to Senate spokeswoman Katie Betta.

Sarasota Republican state Sen. Joe Gruters, who doubles as the chairman of the Republican Party of Florida, told the Times/Herald on Monday that the governor “has the right idea” with the proposal. He did not say whether he will sponsor the bill, only that he “will definitely be supporting it however I can.”

Pinellas County Sheriff Bob Gualtieri, who serves as the legislative chair of the Florida Sheriffs Association, said the issue is an important one to sheriffs across the state but was hesitant to comment on draft legislation.

“The sheriffs want to review it and look forward to the proposed bill that comes out of drafting, and we will carefully analyze and consider it, and take a position once we see the final form,” Gualtieri said Tuesday.

DeSantis’ proposal would also target counties and municipalities that make “disproportionate funding reductions” to law enforcement agency budgets. DeSantis is framing it as a push against “defunding the police,” a term used in police-brutality protests that became politicized by Republicans throughout the presidential election.

Under the governor’s proposal, each municipality would need to certify to the state by Oct. 15 that it is not disproportionately cutting law enforcement agencies’ funding. Some Miami-Dade officials have blasted the governor for trying to meddle in local budgetary decisions.

“The certification must include a statement that any reduction in funding or proposed funding is a result of reduced revenue collection and is proportionate to that reduction in revenue,” the draft bill states. To be proportionate, any cut would need to “remain within three percentage points of the percentage decrease in total revenue from the previous fiscal year to the current fiscal year.”

The draft bill does not include any language that would prevent budget cuts to state law enforcement agencies, such as the Florida Department of Law Enforcement, the Florida Department of Corrections, Florida Highway Patrol or the Fish and Wildlife Conservation Commission.

DeSantis’ proposal is wide-ranging in how it would penalize people who engage in “violent or disorderly assemblies.” The bill defines those assemblies as gatherings of seven people or more that “substantially obstruct” government functions or services, create “immediate danger of damage to property or injury to persons,” and that deprive any person of a “legal right or disturbs any person in the enjoyment of a legal right.”

The measure would prohibit anyone charged with crimes related to such assemblies from being released on bail or bond before an initial court hearing before a judge “in order to ensure the full participation of the prosecutors and the protection of the public,” according to the draft.

Any government employee convicted of participating in such assemblies would be fired, and non-government employees would be ineligible for reemployment assistance benefits, the draft says.

Melba Pearson, a civil-rights attorney and former deputy director of Florida’s American Civil Liberties Union, said the bill is “designed to tamp down on First Amendment rights of protesters.” She said even the title, “anti-mob,” is misleading — Florida did not have large-scale clashes between police and protesters like other states.

“These are not mobs running around the street. People are using their First Amendment rights. This is a democracy, lest some in Tallahassee forget,” said Pearson, a former Miami-Dade prosecutor.

Pearson called the proposed bill “over-broad and will have a chilling effect on free speech.”

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