|Posted on June 9, 2020 at 1:30 PM|
Every person in the United States and in Florida has the First Amendment right to peacefully protest. Unfortunately during these events, law enforcement can arrest people for various crimes. The typical charges in Florida are unlawful assembly, disorderly conduct, and, for the protest organizers, inciting or encouraging a riot. The purpose of this article is to explain the elements of these crimes, the possible penalties, and the defenses to them.
According to Florida Statutes 870.02 the crime of unlawful assembly occurs if three or more persons meet together to commit a breach of the peace, or to do any other unlawful act. The Florida Supreme Court held that to prove this crime the State must prove three elements beyond a reasonable doubt: (1) an assembly of three or more persons who, (2) having a common unlawful purpose, (3) assemble in such a manner as to give rational, firm, and courageous persons in the neighborhood of the assembly a well-grounded fear of a breach of the peace. State v. Simpson, 347 So. 2d 414, 415 (Fla. 1977). This crime is second-degree misdemeanor and it is punishable by up to sixty days in jail, six months of probation, and/or a $500.00 fine.
Breach of the Peace and Disorderly Conduct
Florida Statutes 877.03 states that a the crime of breach of the peace or disorderly conduct occurs when such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting. This crime is second-degree misdemeanor and it is punishable by up to sixty days in jail, six months of probation, and/or a $500.00 fine.
Although this crime can encompass a wide range of activity, Florida courts have made it clear that a person cannot be convicted of disorderly conduct simply by being annoying, cursing, yelling, or causing a group of people to gather. Due to first amendment freedom of speech, words alone are usually not enough and must be coupled with some sort of action. This means that people generally cannot be convicted for this crime where a person merely curses or yells at an officer. C.P. v. State, 644 So. 2d 600 (Fla. 2d DCA 1994). However, this protection does not apply if the “words like shouts of ‘fire’ in crowded theater” means “words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others.” State v. Saunders, 339 So. 2d 641 (Fla. 1976)
Inciting a Riot
Pursuant to Florida Statutes 870.01, a person can be arrested for encouraging or inciting a riot. The term 'riot' is defined as a “tumultuous disturbance of the peace by three or more persons, assembled and acting with a common intent, either in executing a lawful private enterprise in a violent and turbulent manner, to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner.” State v. Beasley, 317 So.2d 750 (Fla. 1975). When considering the offense of inciting to riot, the words uttered by such person or the act done by him or her must be such as to support a finding that they were said or done with intent to provoke a riot. In the light of all the circumstances, the language used must clearly intend to incite a breach of the peace. Id. Inciting or encouraging a riot is a third degree felony punishable by up to five years in prison, five years of probation, and a $5,000.00 fine.
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