Laws Involving Protests and Counter Protests: The Ten Commandments of Protesting
phillips, hunt & walker Protests and Counter Protests
Recently, we were asked by some protesters who felt they were intimidated, assaulted, suppressed, defamed or battered about what they could do.If someone has violated these TEN COMMANDMENTS, you can file charges. Others have asked for some “ground rules” to keep in mind before a protest. By contrast, if you are doing any of these actions, you may be violating Florida law.
Your rights begin where another person’s ends. Certainly, we are all aware that there are not and can be “no law” abridging “the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” However, within that Florida has laws which basically define what peaceable assembly is:
I. THOU SHALT NOT TOUCH OR HIT ANOTHER
Two basic laws apply here: (1) battery and (2) affray (fighting). You cannot commit an unwanted touching to a person and you cannot fight.
BATTERY:
784.03 Battery; felony battery.—
(1)(a) The offense of battery occurs when a person:
1. Actually and intentionally touches or strikes another person against the will of the other; or2. Intentionally causes bodily harm to another person.(2) A person who has one prior conviction for battery, aggravated battery, or felony battery and who commits any second or subsequent battery commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. For purposes of this subsection, “conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.
And AFFRAY:
870.01 Affrays and riots.—
II. THOU SHALT NOT THREATEN OR INTIMIDATE ANOTHER
Two more basic laws apply here: (1) threats and (2) assault. You cannot use words or actions to harm another with malice or which causes well founded fear.
THREATS or EXTORTION:
836.05 Threats; extortion.—Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
And ASSAULT:
784.011 Assault.—
(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
III. THOU SHALT NOT STALK OR HARASS ANOTHER
This concept is about the harassment or stalking of another. It’s broad, but should be kept in your arsenal of things to avoid.
STALKING:
784.048 Stalking; definitions; penalties.—
(1) As used in this section, the term:
(a) “Harass” means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.(b) “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.(c) “Credible threat” means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution under this section.(d) “Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.(2) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.(3) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084….(6) A law enforcement officer may arrest, without a warrant, any person that he or she has probable cause to believe has violated this section….
IV. THOU SHALT NOT WEAR A DISGUISE
We have seen many people wear various head coverings and masks during protests. Do so at your own peril.
DISGUISE AS OBSTRUCTION:
843.03 Obstruction by disguised person.—Whoever in any manner disguises himself or herself with intent to obstruct the due execution of the law, or with the intent to intimidate, hinder, or interrupt any officer, beverage enforcement agent, or other person in the legal performance of his or her duty or the exercise of his or her rights under the constitution or laws of this state, whether such intent is effected or not, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
DISGUISE ON PUBLIC PROPERTY:
876.13 Wearing mask, hood, or other device on public property.—No person or persons shall in this state, while wearing any mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, enter upon, or be, or appear upon or within the public property of any municipality or county of the state.
DISGUISE ON PUBLIC WAY:
876.12 Wearing mask, hood, or other device on public way.—No person or persons over 16 years of age shall, while wearing any mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, enter upon, or be or appear upon any lane, walk, alley, street, road, highway, or other public way in this state.
DISGUISE WHILE DISPLAYING AN EXHIBIT:
876.20 Wearing mask and placing exhibit to intimidate.—It shall be unlawful for any person or persons while wearing a mask or any device whereby the face is so covered as to conceal the identity of the wearer to place, or to cause to be placed, at, on, or in any place any exhibit of any kind whatsoever.
V. THOU SHALT NOT PUBLICLY DISPLAY AN EXHIBIT WHICH INTENDS TO INTIMIDATE
Some of these are very vague and subjective, but for the record you cannot have posters or other exhibits which have an intention of intimidating.
INTIMIDATING EXHIBIT:
876.19 Exhibits that intimidate.—It shall be unlawful for any person or persons to place, or cause to be placed, anywhere in the state any exhibit of any kind whatsoever with the intention of intimidating any person or persons, to prevent them from doing any act which is lawful, or to cause them to do any act which is unlawful.
VI. THOU SHALT NOT DEFAME
Although rarely enforced and even extremely outdated by “equal protection” standards, there is a Florida law which prohibits criminal defamation.
CRIMINAL DEFAMATION:
836.04 Defamation.—Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
VII. THOU SHALT NOT DISTURB ANOTHER’S ASSEMBLY
This comes in two forms- a specific right to not have a lawful assembly disrupted and a law prohibiting breach of the peace.
WILLFUL INTERRUPTION OF ASSEMBLY:
871.01 Disturbing schools and religious and other assemblies.—
877.03 Breach of the peace; disorderly conduct.—Whoever commits 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, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
VIII. THOU SHALT NOT DAMAGE PROPERTY
Criminal Mischief is another commonly cited by police, as a “catch all,” particularly with incidents of property damage or vandalism.
CRIMINAL MISCHIEF:
806.13 Criminal mischief; penalties; penalty for minor.—
(1)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.(b)1. If the damage to such property is $200 or less, it is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.2. If the damage to such property is greater than $200 but less than $1,000, it is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.3. If the damage is $1,000 or greater, or if there is interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service which costs $1,000 or more in labor and supplies to restore, it is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
IX. THOU SHALT NOT INCITE A RIOT
This is a new one for us. However, recently protesters were charged under the “incitement or encouraging a riot” language. It appeared that the counter protesters were the one who incited any fighting or disorder, but here is what the law says:
INCITING A RIOT:
870.01 Affrays and riots.—
(2) All persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
X. THOU SHALT NOT RESIST A LAWFUL ARREST
In almost every circumstance, we would recommend peacefully obeying the orders of law enforcement. However, sometimes this is a little more complex, but also very subjective. As you can see, there is a requirement that a law enforcement officer be acting “in good faith” at the time of the arrest. To further that point, Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985), clearly states, while an “arrest, whether lawful or unlawful, may never be resisted with violence, any excessive force accompanying such arrest may be forcefully defended against.” Id. (citing s. 776.012, Fla. Stat.). Outside cases of excessive force, the law is very clear that one may not resist even an illegal arrest “with violence.” (See Jones v. State, App. 5 Dist., 570 So.2d 433 (1990), stating a “Person is not justified in using force to resist arrest where it is reasonably believed that person making arrest is law enforcement officer, even if arrest is technically illegal”; and Nesmith v. State, App. 2 Dist., 616 So.2d 170 (1993) “Use of force in resisting arrest by a person reasonably known to be law enforcement officer is unlawful notwithstanding technical illegality of arrest.”).
RESISTING ARREST WITH VIOLENCE:
843.01 Resisting officer with violence to his or her person.—Whoever knowingly and willfully resists, obstructs, or opposes any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Florida Commission on Offender Review or any administrative aide or supervisor employed by the commission; parole and probation supervisor; county probation officer; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084.
RESISTING ARREST WITHOUT VIOLENCE:
843.02 Resisting officer without violence to his or her person.—Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Florida Commission on Offender Review or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
DEFENSE TO RESISTING ARREST:
776.051 Use or threatened use of force in resisting arrest or making an arrest or in the execution of a legal duty; prohibition.—
(1) A person is not justified in the use or threatened use of force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.(2) A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, is not justified in the use of force if the arrest or execution of a legal duty is unlawful and known by him or her to be unlawful.
Our civil rights and criminal defense lawyers are happy to speak to your group about the “do’s and don’t’s of protesting free of charge. Feel free to give us a call.
We invite you to review all of our blogs which govern the right of people to assemble, protest and freely express themselves:
The Ten Commandments of Lawful Protesting
Trespassing in Jacksonville, Florida: What are the Rules?
Someone Recording You Without Your Permission?: Things You Can Do
We invite you to review our verdicts, our accolades and awards and what clients have to say about us and give us a call for a free consultation where our lawyers will consult with you personally. John represents clients in Florida, Georgia and Alabama and before the U.S. Supreme Court with passion and compassion. Our firm handles a wide variety of injury and death cases, criminal defense, family law and a host of high profile matters. We can be emailed at help@floridajustice.com or call us at (904) 444-4444 in Florida or (912) 444-4444 in Georgia.