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 鈥渃hilling鈥� effect on protected speech and violates equal-protection and due-process rights.
Gov. Ron DeSantis made the issue a top priority during this spring鈥檚 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鈥� 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 鈥渞iots.鈥� The section is a key focus of the lawsuit.
鈥淎ll persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree,鈥� the law says.
In a two-page order issued Tuesday, Walker wrote that, because 鈥渢he primary issue in this case is the language and syntax鈥� of that part of the statute, lawyers in the case 鈥渟hall diagram鈥� it. The chief judge gave lawyers until Friday to file responses.
鈥淭he parties may submit more than one sentence diagram in the event they believe the statute is susceptible to being diagrammed in multiple ways,鈥� Walker, an at-times acerbic jurist who has frequently clashed with state lawyers, wrote. 鈥淭he 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.鈥�
While legal complaints and court decisions often hinge on interpretations of wording in laws, it鈥檚 rare for judges to order lawyers to parse statutes, according to veteran Tallahassee attorney Mark Herron.
鈥淎 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,鈥� Herron told The News Service of Florida.
The chief judge鈥檚 order included a footnote citing a 2015 ruling by the 10th U.S. Circuit Court of Appeals for 鈥渁 relatively recent example of sentence diagramming in action.鈥�
The appellate court鈥檚 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 鈥渆nigmatic鈥� since its passage in 1968, then-Judge Neil Gorsuch, who is now a U.S. Supreme Court justice, wrote in the majority opinion.
鈥淭rue, in the business of statutory interpretation we do not always bow to linguistic rules. A court鈥檚 job, after all, is to discern the statute鈥檚 meaning, not grade its grammar, and sometimes a law鈥檚 meaning can be clear even when the grammar鈥檚 downright awful,鈥� Gorsuch wrote.
Walker this month refused the state鈥檚 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鈥檚 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, 鈥済iven the dramatic change in the pandemic,鈥� and Walker agreed in an order issued Friday.
鈥淧laintiffs 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,鈥� he wrote.
The groups challenging the law argued that a definition of 鈥渞iot鈥� in the measure is vague and overbroad and may criminalize 鈥渕erely being present at a demonstration where violence or property destruction occurs.鈥� 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 鈥渦nlawful assemblies鈥� to be held without bail until their first appearances in court.
In a June 2 motion, DeSantis said the lawsuit is based on 鈥渦nfounded, misleading, and conclusory allegations of constitutional violations.鈥�
The law, dubbed the 鈥淐ombating Public Disorder鈥� act by the Republican-controlled Legislature, 鈥渄oes none of the things plaintiffs allege,鈥� DeSantis鈥� motion said.
