HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1 Combating Public Disorder
SPONSOR(S): Judiciary Committee, Fernandez-Barquin and others
TIED BILLS: IDEN./SIM. BILLS: SB 484
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice & Public Safety Subcommittee 11 Y, 6 N Hall Hall
2) Justice Appropriations Subcommittee 10 Y, 5 N Jones Keith
3) Judiciary Committee 14 Y, 7 N, As CS Hall Kramer
SUMMARY ANALYSIS
Over the past year, protests relating to race, police tactics, and politics have swept across the country. While
many protests in Florida remained peaceful, some cities were forced to issue emergency curfews as police
officers were injured and local businesses were damaged and burglarized. Most recently, the Governor
activated the National Guard to assist in securing the Capitol after authorities warned of threats of violent
protests. While some violent and disorderly behavior associated with rioting may be prosecuted under current
law, prosecuting and preventing other violent and destructive conduct may be difficult.
CS/HB 1 gives law enforcement and prosecutors additional tools to prevent violence and property destruction
that may result from public disorder. The bill:
 Defines previously undefined crimes of affray, rioting, and inciting a riot and creates new crimes and
enhanced penalties for aggravated rioting and aggravated inciting a riot.
 Increases penalties for assault or battery when committed in furtherance of a riot and requires a court to
sentence a person convicted of battery of a law enforcement officer committed in furtherance of a riot to a
six month minimum mandatory sentence.
 Creates the crime of mob intimidation, prohibiting a mob from forcefully compelling or attempting to compel
another person to do or refrain from doing any act or to assume, abandon, or maintain a particular viewpoint.
 Enhances penalties for specified burglary and theft offenses committed during a riot when facilitated by
conditions arising from the riot.
 Creates new crimes prohibiting a person from defacing, damaging, destroying, or pulling down a memorial.
 Increases the lowest permissible sentence for specified crimes committed in furtherance of a riot.
 Requires a person arrested for specified offenses related to rioting and unlawful assembly to be held in jail
until he or she appears for a first appearance hearing and a court determines bond.
 Creates the crime of cyberintimidation by publication, prohibiting a person from publishing another person's
identification information with the intent to incite violence or the commission of a crime against the person.
 Creates a process by which the state attorney of the judicial circuit in which a municipality is located, or an
objecting member of the municipality's governing body may appeal a funding reduction to the operating
budget of the municipal law enforcement agency to the Administration Commission.
 Waives sovereign immunity for tort claims arising from a riot or unlawful assembly if the governing body of a
municipality interferes with law enforcement's ability to provide reasonable police protection.
 Creates an affirmative defense in a civil action arising from a riot if the plaintiff's injury or damage was
sustained as a result of participating in a riot.
 Corrects constitutional infirmities in the current prohibition against willfully obstructing a roadway.
The Criminal Justice Impact Conference considered the bill on February 15, 2021, and determined the bill may
have a positive indeterminate impact on prison and jail beds by creating new penalties and enhancing current
penalties for specified felony and misdemeanor offenses. The bill may have a negative indeterminate fiscal
impact on municipal governments by waiving sovereign immunity for specified civil claims arising from a riot or
unlawful assembly. See Fiscal Analysis & Economic Impact Statement.
The bill is effective upon becoming a law.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
In May 2020, protests erupted across the country in response to the death of George Floyd, a black
man who was killed under the knee of a white police officer in Minneapolis, Minnesota. Large and small
cities alike experienced peaceful protests mixed with outbreaks of violence and destruction. 1
Locally, several Florida cities experienced incidents of rioting and civil unrest. While most protests were
peaceful, isolated groups were responsible for acts of violence and property damage. In Miami,
following the issuance of an emergency curfew, four police officers were injured, 17 police cars were
damaged, and police made 46 arrests after responding to looting at an outdoor shopping center and
protesting outside of police headquarters. Groups of protestors marched onto I-95, blocking traffic and
creating hours of gridlock. Miami-Dade County temporarily suspended all public transit service in
response to the unrest. Following the rioting, city and private cleaning crews were employed to remove
graffiti and debris.2
In Tampa, what began as a peaceful protest near the University of South Florida, devolved into unrest
as police were forced to form barriers around businesses after several stores were broken into and
looted. One sporting goods store and a gas station were set on fire. A crowd of people launched
fireworks into officers, while others threw bottles and rocks, and the windows of multiple police cars
were broken.3 Tampa's mayor issued a citywide curfew and city and county leaders reported more than
50 businesses were damaged or burglarized and more than 50 police cars were damaged. More than
40 people were arrested for charges including burglary and rioting.4
In Jacksonville, peaceful protests involving over 1,000 participants escalated when a group of about
200 people began confronting police, throwing water bottles, rocks, and bricks, and attempting to set
police cars on fire. Some officers were injured by rocks and bricks5 while one officer was hospitalized
after being stabbed in the neck.6
In July 2020, protestors demonstrating in a crosswalk in St. Petersburg refused to move for a fire-
rescue ambulance and local police received over 400 complaint calls about protesters blocking traffic.7
In September 2020, also in St. Petersburg, protestors accosted a couple dining outside at a restaurant.
1 Joanna Walters, George Floyd protests: The US cities that became hotspots of unrest, The Guardian (May 31, 2021),
https://www.theguardian.com/us-news/2020/may/31/george -floyd-protests-us-cities-hotspots-unrest (last visited Mar. 8, 2021).
2 Douglas Hanks, Sarah Blaskey, Nicholas Nehamas, Daniel Chang, Scenes of destruction- few injuries- on morning after Miami
protest of George Floyd death, Miami Herald (May 31, 2020), https://www.miamiherald.com/article243130356.html (last visited Mar. 8,
2021).
3 Julio Ochoa, Peaceful Protests Turn Violent in Tampa in Response to George Floyd Killing, WUSF Public Media (May 30, 2020),
https://wusfnews.wusf.usf.edu/law-order/2020-05-30/peaceful-protests-turn-violent-in-tampa-in-response-to-george-floyd-killing (last
visited Mar. 8, 2021).
4 Mary Shedden, Daylina Miller, Stephanie Colombini, Tampa Issues Curfew After Businesses Damaged in Overnight Protests, WUSF
Public Media (May 31, 2021), https://www.wusfnews.wusf.usf.edu/law-order/2020-05-31/tampa-issues-curfew-after-businesses-
damaged-in-overnight-protests (last visited Mar. 8, 2021).
5 Marilyn Parker, Peaceful protest marred by riots in downtown Jacksonville, News4Jax (May 30, 2020),
https://www.news4jax.com/news/local/2020/05/30/demonstrators-in-jacksonville-join-national-i-cant-breathe-protests/ (last visited Mar.
8, 2021).
6 Andrea Torres, Officer stabbed in neck during protests in Jacksonville (May 31, 2020),
https://www.local10.com/news/local/2020/05/31/officer-stabbed-in-neck-during-protests-in-jacksonville/ (last visited Mar. 8, 2021).
7 Jillian Olsen, Protesters refused to let an ambulance pass, St. Pete police say, WTSP Tampa Bay (Jul. 9, 2020),
https://www.wtsp.com/article/news/local/protests/st-petersburg-protestors-fire-truck/67-1553a001-0683-4363-8b39-ab4a28930146 (last
visited Mar. 8, 2021).
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 A video capturing the incident showed a protestor threatening to punch a diner and berating other
diners with expletives and insults.8
Most recently, in January 2021, a large group of protestors violently stormed the U.S. Capitol as
lawmakers were certifying the Electoral College vote. The riot led to five deaths, including the death of
one Capitol police officer who was reportedly struck in the head with a fire extinguisher while engaging
with rioters. Overall, 60 Capitol police officers were injured.9 Following the violence, the FBI warned
state and local officials about the potential for unrest and chatter of plans to storm government
buildings leading up to Inauguration Day.10 On January 15, 2021, the FBI arrested one person in
Tallahassee after he encouraged others online to join a violent attack on protestors who were expected
to gather at the Florida Capitol.11 Later that day, Governor DeSantis issued an executive order
activating the Florida National Guard to assist the Florida Department of Law Enforcement and local
law enforcement authorities in their efforts to protect the state, its citizens, and public buildings and
property from potential unrest.12
Unlawful Assembly, Affray, Rioting, Inciting or Encouraging a Riot
Background
Unlawful Assembly
Section 870.02, F.S., prohibits three or more persons from meeting together to commit a breach of the
peace or any other unlawful act. A criminal violation for unlawful assembly is a second degree
misdemeanor punishable by up to 60 days in county jail and a $500 fine.13 Under Florida law, a person
commits a breach of the peace by:
 Committing any act which may:
o Corrupt the public morals,
o Outrage the sense of public decency, or
o Affect the peace and quiet of persons who may witness them; or
 Engaging in:
o Brawling or fighting,
o Conduct which constitutes a breach of the peace, or
o Disorderly conduct.14
The Florida Supreme Court (FSC) has relied on the common law definition of an unlawful assembly to
define which elements must be alleged for the offense to pass constitutional muster. Persons
participating in an unlawful assembly commit a breach of the peace when: an assembly of three or
more persons who, having a common unlawful purpose, assemble in such a manner as to give a
reasonable person in the vicinity of the assembly a well-founded fear of a breach of the peace.15
Applying this definition, the FSC has held that prohibiting an assembly whose purpose is to commit a
breach of the peace is not a violation of the First Amendment.16
8 Josh Fiallo, Romy Ellenbogen, Caitlin Johnston, Demonstrators vs. diners: St. Petersburg encounter goes viral, Tampa Bay Times
(Sept. 24, 2020), https://www.tampabay.com/news/st-petersburg/2020/09/24/tense-exchnage-between-st-pete-demonstrators-and-
diners-goes-viral/ (last visited Mar. 8, 2021).
9 Kenya Evelyn, Capitol Attack: the five people who died, The Guardian (Jan. 8, 2021), https://www.theguardian.com/us-
news/2021/jan/08/capitol-attack-police-officer-five-deaths (last visited Mar. 8, 2021).
10 Steven Lemongello and Gray Rohrer, DeSantis calls up National Guard in advance of possible protests at Florida Capitol, Orlando
Sentinel (Jan. 15, 2021), https://www.orlandosentinel.com/politics/os-ne-tallahassee-rally-sunday-20210115-
uq4mdgcuovbqdj5vlpih4sahua-story.html (last visited Mar. 8, 2021).
11 Jeff Burlew, FBI arrests former U.S. soldier in alleged plot to carry out violence at Florida Capitol, Tallahassee Democrat (Jan. 15,
2021), https://www.tallahassee.com/story/news/local/2021/01/15/capitol-riots-florida-protests-violence/4175324001/ (last visited Mar. 8,
2021).
12 Fla. Exec. Order No. 21-11, National Guard Activation in Response to Possible Protest (Jan. 15, 2021).
13 Ss. 775.082 and 775.083, F.S.
14 S. 877.03, F.S.
15 State v. Simpson, 347 So.2d 414, 415 (Fla. 1977).
16 Id.
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 Section 870.03, F.S., similarly prohibits an unlawful assembly from demolishing, pulling down or
destroying, or beginning to pull down or destroy any dwelling house or other building, or any ship or
vessel. A violation is a third degree felony punishable by up to five years in prison and a $5,000 fine.17
Affray
Section 870.01(1), F.S., imposes a first degree misdemeanor18 penalty on a person who commits an
affray. The statute does not define the elements of the offense, leaving Florida courts to rely on the
common law definition. At common law, an "affray" is defined as the fighting of two or more persons in
a public place, to the terror of the people.19 An affray is distinguished from an assault or battery by
requiring fighting by two or more people, while an assault or battery may be committed by only one
person.20
Rioting and Inciting or Encouraging a Riot
Under Florida law, all persons found guilty of rioting, or of inciting or encouraging a riot, are guilty of a
third degree felony.21 Like the affray statute, the riot statute does not define prohibited conduct by
laying out the elements of the crime. Florida courts have resorted to the common law definition of riot
when deciding challenges to the statute. At common law, a "riot" is 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 or turbulent manner, to the terror of the people, or in executing an
unlawful enterprise in a violent and turbulent manner.22 The FSC has construed s. 870.01(2), F.S., to
require three or more persons to act with the common intent to mutually assist each other in a violent
manner to the terror of the people and a breach of the peace.
For the offense of inciting or encouraging a riot, the FSC has held that a person must speak or act with
the intent to provoke a riot, and the person's language must clearly intend to incite a breach of the
peace. To avoid any infringement of the First Amendment, a person's words must be such that they
advocate violence and tend to incite an immediate breach of the peace.23 Specifically, the FSC has
construed the statute to require a defendant's language to create a clear and present danger of a riot
by tending to incite an assembly to an immediate breach of the peace.24
Effect of Proposed Changes- Unlawful Assembly, Affray, Rioting, Inciting a Riot, Mob Intimidation
CS/HB 1 defines the crime of affray by prohibiting a person from engaging, by mutual consent, in
fighting with another person in a public place to the terror of the people. The bill incorporates the
elements of an affray as defined at common law and used by the FSC in deciding previous challenges
to the statute. A violation for an affray remains a first degree misdemeanor.
The bill also defines the crime of rioting. Under the bill, a person who participates in a violent public
disturbance involving an assembly of three or more persons, acting with a common intent to assist
each other in violent and disorderly conduct, resulting in: injury to another person, damage to property,
or an imminent danger of injury to another person or damage to property commits a riot. Rioting
remains a third degree felony and continues to be ranked a Level 3 offense on the Criminal Punishment
Code's (CPC) offense severity ranking chart (OSRC).25
17 Ss. 775.082 and 775.083, F.S.
18 A first degree misdemeanor is punishable by up to one year in county jail and a $1,000 fine. Id.
19 Carnley v. State, 88 Fla. 281, 283 (Fla. 1924).
20 O.A. v. State, 312 So.2d 202, 203 (Fla. 2d DCA 1975).
21 Rioting, or inciting or encouraging a riot, is a Level 3 offense on the Criminal Punishment Code's offense severity ranking chart. S.
921.0022(3)(c), F.S.
22 State v. Beasley, 317 So.2d 750, 752 (Fla. 1975).
23 Id. at 753.
24 In Brandenburg v. Ohio, 395 U.S. 444 (1969), the U.S. Supreme Court held that "the constitutional guarantees of free speech and
free press do not permit the State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
25 Felony offenses subject to the CPC are listed in a single offense severity ranking chart, which uses 10 offense levels to rank felonies
from least severe (Level 1) to most severe (Level 10). Each felony offense is assigned to a level according to the severity of the
offense, commensurate with the