DREAM DEFENDERS v. DESANTIS

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

THE DREAM DEFENDERS,

et al.,

Plaintiffs,

v. Case No.: 4:21cv191-MW/MAF

RON DESANTIS, in his official

capacity as Governor of the

State of Florida, et. al.,

Defendants.

____________________________/

ORDER ON MOTIONS TO DISMISS

In April 2021, Governor DeSantis signed House Bill 1 (HB1 or “the Act”)—

better known as the “anti-riot” bill—into law. The ultimate question in this case is

whether HB1 violates the First Amendment, the Fourteenth Amendment’s Equal

Protection clause or the Due Process clause. See generally ECF No. 1. All

Defendants move to dismiss Plaintiffs’ Complaint. See ECF Nos. 38, 39, 48, 49, and

50. Before this Court can begin to answer the ultimate question, it must rule on the

motions to dismiss.

I

A

Before turning to the parties’ arguments, some background is necessary.

HB1’s new definition of “riot” sits at the core of Plaintiffs’ suit. Prior to the Act’s

passage, Florida law criminalized rioting, “or . . . inciting or encouraging a riot.”

§ 870.01, Fla. Stat. (1971). Because the statute did not define riot, Florida courts

relied on the common-law definition of riot. State v. Beasley, 317 So. 2d 750, 752

(Fla. 1975). HB1’s section 15 amended section 870.01 to, among other things, define

riot. Plaintiffs argue that this new definition “fails to clarify whether a participant in

a larger demonstration where violence occurs” is guilty of rioting. ECF No. 1 ¶ 72.

Plaintiffs have also moved to preliminarily enjoin Defendants from enforcing section

15. ECF No. 64.

Although Section 15 is the subject of Plaintiffs’ motion for preliminary

injunction, Plaintiffs challenge HB1 in its entirety. In doing so, Plaintiffs discuss

only certain sections of the Act; specifically, sections 1, 2, 3, 8, 14, 15, 16, and 18.

Section 1 of the Act provides for appeals from a municipality’s decision to

reduce funding “to the operating budget of [a] municipal law enforcement agency.”

§ 166.241(4)(a), Fla. Stat. (2021). Any member of the municipal governing body or

the state attorney for the local judicial circuit may lodge an appeal with the Executive

Office of the Governor. Id. The Governor’s office then holds a hearing and makes

findings and recommendations to the Administration Commission, which either

approves or modifies the municipality’s budget. Id. § 166.241(5). The

Administration Commission is part of the Executive Office of the Governor and is

made up of the Governor and Cabinet. § 14.202, Fla. Stat. The Commission cannot

act without the Governor’s approval. See id. (explaining that any action by the

Commission “shall require the approval of the Governor and at least two other

members of the commission”). Thus, in effect, Section 1 gives the Governor veto

power over any reduction in a municipal police force’s budget.1

Section 2 amends section 316.2045, Florida Statutes, to prohibit persons from

obstructing “the free, convenient, and normal use of a public street, highway, or road

by” either “[s]tanding on or remaining in the street, highway, or road.”

§ 316.2045(1)(a)(1), Fla. Stat. (2021).

Section 3 amends section 768.28, Florida Statutes, to provide that “[a]

municipality has a duty to allow the municipal law enforcement agency to respond

appropriately to protect persons and property during a riot” and, “[i]f the governing

body of the municipality . . . breaches that duty, the municipality is civilly liable for

any damages . . . proximately caused by the . . . breach of duty.” § 768.28(5)(b), Fla.

1 Florida law already provides for a budget appeal process for Florida sheriffs in the event

the board of county commissioners or budget commission “amend[s], modif[ies], increase[s], or

reduce[s] any or all items of expenditure in the proposed budget.” See § 30.49(4), Fla. Stat. (2011).

HB1 creates and expands this appeal process for municipal law enforcement agencies with a

particular focus on proposed budget reductions. See § 166.241, Fla. Stat. (2021).

Stat. (2021). In such a suit, the normal “sovereign immunity recovery limits . . . do

not apply.” Id.

Section 8 creates a new crime, mob intimidation, which prohibits three or

more persons “acting with a common intent, to use force or threaten to use force, to

compel or induce, or attempt to compel or induce, another person to do or refrain

from doing any act or to assume, abandon, or maintain a particular viewpoint against

his or her will.” § 784.0495(1), Fla. Stat. (2021). Any person who violates this

provision commits a first-degree misdemeanor and must be held without bail until

brought before a court. Id. § 784.0495(2)–(3).

Section 14 creates another new crime, cyberintimidation by publication. A

person commits cyberintimidation when they “electronically publish another

person’s personal identification information with the intent to, or with the intent for

a third party to” either “[i]ncite violence or commit a crime against the person” or

“[t]hreaten or harass the person, placing such person in reasonable fear of bodily

harm.” § 836.115(2)(a)–(b), Fla. Stat. (2021). A violation of this statute amounts to

a first-degree misdemeanor punishable by up to a year in jail and a $1,000 fine. See

§§ 775.082(4)(a) & 775.083(1)(d), Fla. Stat.

Section 16 “amends the misdemeanor offense of Unlawful Assemblies to

require anyone arrested under this provision to be held without bail until brought

before a judge for a hearing.” ECF No. 1 ¶ 78; § 870.02(2), Fla. Stat. (2021).

Finally, section 18 creates an affirmative defense in civil actions. Specifically,

“[i]n a civil action for damages for personal injury, wrongful death, or property

damage, it is an affirmative defense that such action arose from an injury or damage

sustained by a participant acting in furtherance of a riot.” § 870.07(1), Fla. Stat.

(2021). To establish this new defense, a party may either show “that the participant

has been convicted of a riot or an aggravated riot . . . or by proof of the commission

of such crime by a preponderance of the evidence.” Id. § 870.07(2).

Other provisions of the Act not specifically discussed in Plaintiffs’ Complaint

create enhanced penalties for assaults committed “in furtherance of a riot or an

aggravated riot,” § 784.011(3), Fla. Stat. (2021); § 784.021(3), Fla. Stat. (2021), or

for battery or aggravated battery committed “in furtherance of a riot,”

§ 784.021(1)(b)(3), Fla. Stat. (2021); § 784.045(1)(b)(3), Fla. Stat. (2021). Plus, the

Act enhances penalties for battery on certain enumerated first responders in

furtherance of a riot and sets a mandatory minimum 6-month jail sentence for anyone

who batters a law enforcement officer in furtherance of a riot. §§ 784.03(2)(b), (4),

Fla. Stat. (2021). The Act also criminalizes defacing or destroying “a memorial or

historic property.” § 806.13(3), Fla. Stat (2021); § 806.135, Fla. Stat. (2021). And

the Act enhances the penalties for burglary or theft when the perpetration of the theft

or burglary “is facilitated by conditions arising from [a] riot,” and restricts bail for

those arrested for such crimes. § 810.02(3)(f), Fla. Stat. (2021); §§ 812.014(b)(4),

(b)(13), Fla. Stat. (2021).

Finally, other miscellaneous sections repeal section 870.03, Florida Statutes,

which prohibited unlawfully assembled persons from “demolish[ing], pull[ing]

down or destroy[ing], or begin[ning] to demolish, pull down or destroy, any dwelling

house or other building, or any ship or vessel,” § 870.03, Fla. Stat. (1971); increase

the penalties for injuring or removing a tomb or monument or disturbing the contents

of a grave or tomb when the defendant does so “in furtherance of a riot,” § 872.02(3),

Fla. Stat. (2021); amend the criminal punishment code severity ranking chart

consistent with the changes made by other portions of the Act, § 921.0022, Fla. Stat.

(2021); and provide that the Act shall take immediate effect upon becoming law.

B

Roughly a month after Governor DeSantis signed HB1 into law, Plaintiffs

brought this suit. See ECF No. 1. Plaintiffs are all organizations that advocate for the

interests of minority groups, particularly Black Floridians, and sue on behalf of

themselves and their members. Id. at 1.

Based in Miami, Plaintiff Dream Defenders “is a chapter and membership-

based organization led by Black and Latinx youth who focus on promoting civic

engagement and organizing young people and students against structural inequality.”

Id. ¶ 10. Also based out of Miami, Plaintiff The Black Collective, Inc. “is a Florida

nonprofit corporation focused on promoting political participation and economic

empowerment of Black communities.” Id. ¶ 14. Based out of Broward County,

Plaintiff Chainless Change, Inc. “is a Florida nonprofit corporation and recovery

community that aims to improve the lives of justice-involved individuals through

community organizing that addresses systemic inequality.” Id. ¶ 17. As their name

would suggest, Plaintiff Black Lives Matter Alliance Broward is likewise based in

Broward County. Id. ¶ 23. It “is a grassroots alliance of community organizations

and individuals . . . aiming to abolish institutional racism and policing through direct

actions, political education, and community organizing.” Id. Plaintiff Florida State

Conference of the NAACP Branches and Youth Units “is a Black-led organization

that is committed to ensuring the political, educational, social, and economic

equality rights for all persons and to eliminate race-based discrimination.” Id. ¶ 28.

Finally, Plaintiff Northside Coalition of Jacksonville “is a Florida nonprofit

corporation that focuses on the problems of social, racial, and economic injustice

and regularly engages in nonviolent direct action.” Id. ¶ 32.

Plaintiffs name as defendants Florida Governor Ron DeSantis in his official

capacity, Florida Attorney General Ashley Moody in her official capacity, Leon

County Sheriff Walt McNeil in his official capacity, Jacksonville Sheriff Mike

Williams in his official capacity, and Broward County Sheriff Gregory Tony in his

official capacity. Id. ¶¶ 36, 38, 40, 41, 42.

Plaintiffs claim that HB1 violates the Fourteenth Amendment’s Equal

Protection Clause because the Act was passed with discriminatory intent (Count 1)

and because the Act targets certain messages (Count 2). Id. ¶¶ 121–33, 134–44.

Plaintiffs also claim that the Act violates the First Amendment because it

“constitutes impermissible viewpoint and content discrimination, and is overbroad”

(Count 3). Id. ¶¶ 145–63. Finally, Plaintiffs argue that the Act violates the Fourteenth

Amendment’s Due Process Clause because it is impermissibly vague (Count 4).

Id. ¶¶ 164–75.

As for relief, Plaintiffs ask this Court to “[d]eclare that Sections 2, 3, 8, 14,

15, 16, and 18” of the Act, and the “Act in its entirety, are unconstitutional.” ECF

No. 1 at 60. Plaintiffs further request that this Court “[p]reliminarily and

permanently enjoin Sections 2, 3, 8, 14, 15, 16, and 18 of the Act.” Id.

C

In response, all Defendants move to dismiss Plaintiffs’ Complaint pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).2 Defendants’ arguments,

which are discussed in more detail below, can be sorted into four general categories.

First, all Defendants argue both that Plaintiffs lack standing and that this case is not

ripe. Second, Attorney General Moody and Governor DeSantis argue that they are

2 Although Sheriff Williams does not explicitly mention Rule 12(b)(1), he adopts Attorney

General Moody’s argument that Plaintiffs lack standing. ECF No. 49 at 18.

not proper parties under Ex parte Young. Third, all Defendants argue that Plaintiffs

have failed to state a claim.3 Fourth, and finally, the Sheriffs argue that Plaintiffs

have not alleged any official policy or custom of the Sheriffs caused Plaintiffs’

alleged constitutional injury as required by Monell v. Department of Social Services,

436 U.S. 658 (1978). This Court addresses each argument in turn.

II

As it must, this Court first addresses threshold jurisdictional issues. A Rule

12(b)(1) motion to dismiss for lack of subject matter jurisdiction “can be asserted on

either facial or factual grounds.” Carmichael v. Kellogg, Brown & Root Servs., Inc.,

572 F.3d 1271, 1279 (11th Cir. 2009) (citation omitted). A facial challenge occurs

when, as here, defendants base their challenge to subject matter jurisdiction solely

on the allegations in the complaint. Id. In considering Defendants’ facial challenge,

this Court must take Plaintiffs’ allegations as true. Id.

A

First, standing. To establish standing, Plaintiffs must show (1) that they have

suffered an injury-in-fact that is (2) traceable to Defendants and that (3) can likely

be redressed by a favorable ruling. See Lujan v. Defenders of Wildlife, 504 U.S. 555,

560–61 (1992). And they must do so for each statutory provision they challenge.

3 The Sheriffs and the Governor have incorporated by reference Attorney General Moody’s

arguments with respect to Rule 12(b)(6).

CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1273 (11th Cir. 2006)

(emphasizing that courts have an “independent obligation . . . to ensure a case or

controversy exists as to each challenged provision even in a case where the plaintiffs

established harm under one provision of the statute”). Plaintiffs proceed under two

theories of standing, organizational standing and associational standing. This Court

discusses each in turn.

“In certain scenarios, an organization has standing to assert claims based on

injuries to itself if that organization is affected in a tangible way.” Namphy v.

DeSantis, 493 F. Supp. 3d 1130, 1138 (N.D. Fla. 2020). Here, Plaintiffs proceed

under a diversion of resources theory. “Under the diversion-of-resources theory, an

organization has standing to sue when a defendant’s illegal acts impair the

organization’s ability to engage in its own projects by forcing the organization to

divert resources in response.” Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1341 (11th

Cir. 2014). To successfully challenge the entire Act, Plaintiffs must establish

organizational standing as to all the Act’s sections. CAMP, 451 F.3d at 1273.

In addition to organizational standing, an organization may sue “on behalf of

its members when: (a) its members would otherwise have standing to sue in their

own right; (b) the interests it seeks to protect are germane to the organization’s

purpose; and (c) neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.” Greater Birmingham Ministries

v. Sec’y of State of Ala., 992 F.3d 1299, 1316 (11th Cir. 2021) (“GBM”). As

discussed below, Plaintiffs’ members have standing as to certain provisions of the

Act. Additionally, this lawsuit is germane to Plaintiffs, whose core purpose is to

organize and participate in support of racial justice. Finally, neither the claims

asserted, nor the relief requested requires the participation of the individual members

in this lawsuit. See Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1244

(11th Cir. 2003); GBM, 992 F.3d at 1316 n.29 (“[P]rospective relief weigh[s] in

favor of finding that associational standing exists.”).

In addressing both forms of standing, this Court starts with the injury

requirement. And to streamline the analysis, this Court will begin with the provisions

for which it finds that Plaintiffs have not pleaded an injury-in-fact.

1. Injury

i. Section 1

Section 1 of the Act provides for appeals from a municipality’s decision to

reduce funding “to the operating budget of [a] municipal law enforcement agency.”

§ 166.241(4)(a), Fla. Stat. (2021). The Governor’s office considers appeals and

makes recommendations to the Administration Commission, which cannot act

without his approval.

Plaintiffs argue that “[b]ecause the Commission’s authority under Section 1

adds administrative and logistical hurdles to proposals to reduce law enforcement

budgets, Plaintiffs are refraining from advocating for such proposals,” and that

section 1 therefore injures Plaintiffs through “self-censorship” and “through the

frustration of Plaintiffs’ missions to advocate for . . . diverting funding from police

departments.” ECF No. 85 at 10–11 (citing Namphy, 493 F. Supp. 3d at 1138).

However, the injury through frustration of purpose that supported

organizational standing in Namphy was based on organizations, whose purpose was

registering voters, being denied the ability to register voters. 493 F. Supp. 3d at 1138

(relying on Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)). Here,

Plaintiffs describe themselves as having the “missions to advocate for racial justice

and police accountability in the form of diverting funding from police departments

to other social services.” ECF No. 85 at 10.

While this Court has no doubt as to Plaintiffs’ collective disappointment and

frustration at the effect of section 1 on municipal funding of police departments over

a variety of social services, the asserted injury must be “far more than simply a

setback to the organization’s abstract social interests.” Havens, 455 U.S. at 379.

Setting aside the effects of the other challenged sections of the Act, Plaintiffs are just

as able to fulfill their purpose, i.e., advocate, after section 1 went into effect as they

were beforehand. Plaintiffs’ position would appear to lead to a cognizable injury for

every organization that objects to the way a municipality allocates its funds. This

Court cannot find legal support for such a scheme, nor would it like to imagine the

results.

In short, though it may be more difficult for Plaintiffs to have their preferred

policies implemented at the municipal level, this does not frustrate their purpose—

to advocate for those policies. Plaintiffs are not injured by section 1.

ii. Sections 3 and 18

Section 3 creates a duty for municipalities to allow law enforcement agencies

to respond appropriately during a riot. See § 768.28(5)(b), Fla. Stat. (2021). If a

responsible party breaches this duty, the municipality is liable for damages

proximately caused by the breach and sovereign immunity recovery limits do not

apply. Id. Plaintiffs allege that this amendment incentivizes municipalities “not to

intervene or otherwise thwart overly punitive law enforcement responses to

demonstrations, for fear of running afoul of this provision.” ECF No. 1 ¶ 97. As a

result, Plaintiffs assert this provision chills “Black would-be protesters from

engaging in protests,” and “impedes would-be protesters from petitioning their

municipal governments to reform the local policy by rendering such advocacy

useless.” Id. ¶ 99. However, in response to Defendants’ motions to dismiss, Plaintiffs

offer no argument that they have suffered a concrete injury based on this provision.

The same is true of section 18, which generates an affirmative defense in civil

actions for those sued for personal injury, wrongful death, or property damage, if the

plaintiff sustained his or her injuries by acting in furtherance of a riot. § 870.07(1),

Fla. Stat. (2021). Plaintiffs allege this new affirmative defense, which hinges on the

amended definition for “riot,” “invites violence against protestors and others

engaged in protected speech activity by completely insulating the aggressors from

money damages,” if they can “point to a ‘rioting’ conviction or provide ‘proof’ . . .

that the injured or killed person participated in a riot.” ECF No. 1 ¶ 91. This Court

understands Plaintiffs’ allegations to imply that their members’ speech is chilled for

fear of the potential violence this provision invites. However, again, Plaintiffs offer

no supporting argument in response to the motions to dismiss to show they are

suffering a concrete injury as a result of this provision and this Court will not make

the argument for them.

iii. Sections 4 through 7

Sections 4 through 7 of the Act are similar to each other in that they enhance

the penalties for certain acts that are already criminalized. Sections 4 and 5 create

enhanced penalties for assaults and aggravated assaults committed “in furtherance

of a riot or an aggravated riot” respectively. §§ 784.011(3) & 784.021(3), Fla. Stat.

(2021). And sections 6 and 7 enhance the penalties for battery and aggravated battery

committed “in furtherance of a riot.” §§ 784.021(1)(b)(3) & 784.045(1)(b)(3), Fla.

Stat. (2021).

Plaintiffs do not allege that they—or rather, their members—intend to commit

any assaults, aggravated assaults, batteries, or aggravated batteries. Nor do Plaintiffs

argue that they have diverted resources due to these enhanced criminal penalties, nor

that these sections have chilled Plaintiffs’ speech. As such, Plaintiffs are not injured

by sections 4, 5, 6, or 7.

iv. Section 8

Section 8 creates a new crime, mob intimidation, which prohibits three or

more persons “acting with a common intent, to use force or threaten to use force, to

compel or induce, or attempt to compel or induce, another person to do or refrain

from doing any act or to assume, abandon, or maintain a particular viewpoint against

his or her will.” § 784.0495(1), Fla. Stat. (2021). Any person who violates this

provision “commits a misdemeanor of the first degree” and must be held without

bail until brought before a court. Id. § 784.0495(2)–(3).

While Plaintiffs rely on R.A.V. v. City of St. Paul, Minnesota to attack section

8 as “an unconstitutional content-based regulation on a subset of protected, non-

proscribable speech,” 505 U.S. 377, 383–84 (1992); ECF No. 1 ¶ 152, they do not

allege actual injury stemming from this section. Plaintiffs do not allege that they, or

their members, plan to use force or threaten force to compel or induce any other

person to do or refrain from doing anything or change or maintain a particular

viewpoint. Nor do Plaintiffs allege any injury due to diversion of resources or self-

censorship as a result of section 8. And, finally, Plaintiffs do not allege that section

8 is vague or overbroad, and therefore chills their speech. As such, Plaintiffs are not

injured by section 8.

v. Sections 9 through 13

Sections 9 through 13 either criminalize acts or, like sections 4 through 7,

enhance the penalties for certain criminal acts. Section 9 enhances penalties for

battery on certain enumerated first responders in furtherance of a riot and sets a

mandatory minimum six-month jail sentence for anyone who batters a law

enforcement officer in furtherance of a riot. §§ 784.03(2)(b), (4), Fla. Stat. (2021).

Section 10 criminalizes defacing “a memorial or historic property,” § 806.13(3), Fla.

Stat. (2021), and section 11 criminalizes destroying such property, § 806.135, Fla.

Stat. (2021). Section 12 enhances the penalties for burglary when the perpetration of

the burglary “is facilitated by conditions arising from [a] riot,” and restricts bail for

those arrested for such crimes. § 810.02(3)(f), Fla. Stat. (2021). And section 13

enhances the penalties for theft when the perpetration of the theft “is facilitated by

conditions arising from [a] riot,” and restricts bail for those arrested for such crimes.

§§ 812.014(b)(4), (b)(13), Fla. Stat. (2021).

Plaintiffs do not allege that they or their members intend to commit battery,

deface or destroy “memorial[s] or historic propert[ies],” commit burglary, or commit

theft. Nor do Plaintiffs argue that these criminal penalties have caused Plaintiffs to

divert their resources to self-censor. Accordingly, Plaintiffs are not injured by

sections 9 through 13.

vi. Section 17

Section 17 repeals section 870.03, Florida Statutes, which prohibited

unlawfully assembled persons from “demolish[ing], pull[ing] down or destroy[ing],

or begin[ning] to demolish, pull down or destroy, any dwelling house or other

building, or any ship or vessel.” § 870.03, Fla. Stat. (1971). Plaintiffs do not attempt

to argue that this particular section, which merely repeals a criminal statute, injures

them in any way, including through any diversion of resources or self-censorship.

vii. Section 19

Similar to several sections already described, section 19 increases the

penalties for an extant crime; namely, injuring or removing a tomb or monument or

disturbing the contents of a grave or tomb when the defendant does so “in

furtherance of a riot.” § 872.02(3), Fla. Stat. (2021). Plaintiffs do not allege that

they—or rather, their members—intend to defile graves. Nor do they allege that

section 19 has caused them to divert their resources or to engage in self-censorship.

As such, Plaintiffs are not injured by section 19.

viii. Section 20

Section 20 amends the criminal punishment code severity ranking chart

consistent with the changes made by other portions of the Act. See § 921.0022, Fla.

Stat. (2021). Plaintiffs do not attempt to single out any injury from section 20, which

does not appear to cause any injury independent of another section. This section has

not caused Plaintiffs to divert their resources, nor has it chilled their speech. As such,

Plaintiffs have not alleged that they are injured by section 20.

ix. Section 21

Section 21 provides that the Act shall take immediate effect upon becoming

law. While Plaintiffs cite this provision as evidence of the atypical, hurried process

used by the Florida Legislature to pass the Act, ECF No. 1 ¶¶ 5, 118–19, they do not

specify any particular injury caused by this section. This includes any diversion of

resources or chilling of speech. As such, there is no injury caused by section 21. This

Court, however, finds that, as described below, the remaining sections have injured

Plaintiffs.

x. Sections 2, 14, 15, and 16

That leaves sections 2, 14, 15, and 16 of the Act. Section 2 makes it a

noncriminal traffic infraction to obstruct a public street, highway, or road.

§ 316.2045, Fla. Stat. (2021); § 318.14(1), Fla. Stat. Section 14 creates the crime of

“cyberintimidation by publication.” § 836.115, Fla Stat. (2021). Section 15 defines

“riot.” § 870.01, Fla. Stat. (2021). And finally, section 16 changes when bail is

available for those arrested for unlawful assembly. § 870.02, Fla. Stat. (2021).

Plaintiffs allege that section 2 will allow police to arrest and ticket peaceful

protestors. ECF No. 1 ¶ 76. Thus, because of section 2, “would-be protesters . . .

have already been and will continue to be discouraged from exercising their First

Amendment rights for fear of arrest.” Id. ¶ 77. Plaintiffs allege that section 14 is

overbroad, and chills “constitutionally protected electronic communications.” Id. ¶

155. This is because it “runs the risk of subjecting a speaker to arrest or criminal

prosecution for simply posting another’s name.” Id. ¶ 158. As for section 15,

Plaintiffs claim that the new definition of riot is vague and overbroad in that it may

criminalize “merely being present at a demonstration where violence or property

destruction occurs” and encourages selective or arbitrary enforcement. Id. ¶ 168. As

a result, “Plaintiffs have already . . . and will continue to be discouraged from

participating in demonstrations for fear that the intent and actions of others may

subject them to arbitrary enforcement and severe criminal penalties.” Id. ¶ 169.

Finally, Plaintiffs allege that section 16 ensures that “a person arrested for breach of

the peace . . . will spend at least one night in jail.” Id. ¶ 79. Accordingly, section 16

chills “protected speech by discouraging would-be protesters from participating in a

demonstration for fear that they may be arrested . . . and have to spend at least one

night in jail.” Id. ¶ 80. For all of these provisions, this Court finds that Plaintiffs have

sufficiently alleged an injury in fact.

As to organizational standing, Plaintiffs have alleged, with the exception of

the NAACP, that “organizing and participating in support of racial justice is core to”

their missions. ECF No. 76 at 6; ECF No. 1 ¶¶ 11, 15, 24, 32. Plaintiffs also rely

heavily on social media to spread their message and organize their members’

activities. Id. ¶¶ 11, 13, 22, 27. As a result of the Act, Plaintiffs claim, they have

been forced to redirect staff, volunteers, and other resources from organizing or

protesting to working on issues surrounding the Act, including organizing “Know

Your Rights trainings.” Id. ¶¶ 13, 16, 19, 25, 26, 29. For future protests, Plaintiff

“NAACP will have to reallocate more time and resources in order to attempt to

ensure that gatherings will remain safe.” Id. ¶ 30. Plaintiff Northside Coalition “has

been forced to spend time and resources identifying legal observers . . . and

additional peacekeepers.” Id. ¶ 35. Plaintiff Chainless Change “has been forced [by

the Act] to expend funds on hiring a consulting company to transition from direct

action to other communication tools.” Id. ¶ 21. And at least one Plaintiff has declined

to hire for certain positions. Id. ¶ 20. Plaintiffs also allege that, because of section 14

of the Act, Plaintiffs Dream Defenders, Chainless Change, and BLMA Broward

have sought alternative means of communication. Id. ¶¶ 13, 22, 27. Plaintiff Dream

Defenders has also devoted additional time and effort to screening electronic

communications. Id. ¶ 13.

Because sections 2, 14, 15, and 16 arguably sweep up peaceful protests or

other protected speech and because Plaintiffs have been forced to divert resources to

respond to these sections, Plaintiffs sufficiently allege organizational standing as to

sections 2, 14, 15, and 16. Arcia, 772 F.3d at 1342 (“This redirection of resources to

counteract the [the effects of the Act] is a concrete and demonstrable injury.”).

Defendants’ argument to the contrary is not persuasive. Citing Jacobson v.

Florida Secretary of State, 974 F.3d 1236 (11th Cir. 2020), Defendants argue that

Plaintiffs’ allegations fall short because Plaintiffs fail to “specify what activities the

expenditures were diverted away from in order to combat HB 1.” ECF No. 81 at 2.

Jacobson, however, is distinguishable. In Jacobson, the defendants appealed from a

final order following trial. And, as the Supreme Court has observed, a plaintiff must

establish standing “with the manner and degree of evidence required at the

successive stages of the litigation.” Lujan, 504 U.S. at 561. Thus, “[a]t the pleading

stage, general factual allegations of injury resulting from the defendant’s conduct

may suffice, for on a motion to dismiss [this Court must] ‘presum[e] that general

allegations embrace those specific facts that are necessary to support the claim.’ ”

Id. (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)). At this stage,

Plaintiffs’ allegations are sufficient. To require anything more would contravene

Rule 8(a)(1)’s admonition that a complaint contain “a short and plain statement of

the grounds for the court’s jurisdiction.”

Plaintiffs’ allegations are also sufficient to establish an injury for associational

standing. This is because Plaintiffs allege that sections 2, 14, 15, and 16 chill their

members’ speech. Id. ¶¶ 76–77, 170. While Defendants argue both that Plaintiffs are

not injured and that this case is not ripe because there is no credible threat of

enforcement, as discussed further below, Plaintiffs sufficiently allege a credible

threat of enforcement to establish both injury and ripeness.

The injury-in-fact requirement applies “most loosely where First Amendment

rights are involved, lest free speech be chilled even before the law or regulation is

enforced.” Harrell v. Fla. Bar, 608 F.3d 1241, 1254 (11th Cir. 2010). And

ripeness—which seeks to prevent the premature adjudication of inchoate disputes—

requires this Court to evaluate (1) whether this case is fit “for judicial decision and

(2) the hardship to the parties of withholding court consideration.” Nat’l Park Hosp.

Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003).

This is a pre-enforcement challenge. And thus, as to the injury-in-fact inquiry,

“[t]his is one of those cases where ‘the Article III standing and ripeness issues . . .

boil down to the same question.’ ” Wollschlaeger v. Governor, Fla., 848 F.3d 1293,

1304 (11th Cir. 2017) (en banc) (quoting Susan B. Anthony List v. Driehaus, 573

U.S. 149, 157 n.5 (2014)). That question is, “when [does] the threatened enforcement

of a law create[] an Article III injury”? Driehaus, 573 U.S. at 158. As the Supreme

Court has often done, in addressing this issue, this Court will use the term “standing”

to describe both standing and ripeness. Id. at 157 n.5. “A person can bring a pre-

enforcement suit when he has alleged an intention to engage in a course of conduct

arguably affected with a constitutional interest, but proscribed by a statute, and there

exists a credible threat of prosecution.” Wollschlaeger, 848 F.3d at 1304 (quoting

Driehaus, 573 U.S. at 159) (cleaned up).

Here, Plaintiffs have alleged an intention—their members’ intention—to

engage in a course of conduct arguably affected with a constitutional interest but

proscribed by a statute. There is no doubt Plaintiffs’ intended course of conduct,

protesting in support of racial justice, is affected with a constitutional interest. The

harder question, though, is whether such conduct is arguably forbidden by sections

2, 14, 15, and 16.

Defendants argue that the Act does not prohibit any speech that Plaintiffs

allege they intend to engage in. But at this stage, that is not the question. Instead,

Plaintiffs must only show that their desired expression is “at least arguably forbidden

by the pertinent law.” Harrell, 608 F.3d at 1260 (emphasis deleted) (quoting

Hallandale Pro. Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 762

(11th Cir. 1991)). Here, such activity certainly is. First, section 2 allows fines for

“[s]tanding on or remaining in the street.” § 316.2045(1)(a)(2), Fla. Stat. (2021). It

is not hard to imagine how this provision could be used to penalize protestors.

Likewise, section 14, which prohibits cyberintimidation, could arguably be read to

prohibit sharing the contact information of government officials, something most of

the Plaintiffs allege they do. See, e.g., ECF No. 1 ¶ 11. Section 15 is perhaps the

most pernicious. This is because it arguably criminalizes mere presence at a protest

where violence occurs—even if that violence is caused by counter protestors.

Finally, under section 16, an unlawful assembly occurs whenever three or more

people gather “to do any . . . unlawful act.” § 870.02(1), Fla. Stat. (2021). Thus, if

three or more people gather to participate in a peaceful protest that is marred by

violence, they may be arrested for violating both sections 15 and 16 and held

overnight without bail. Plaintiffs’ desired expression is therefore at least arguably

prohibited by sections 2, 14, 15, and 16.

This Court is also satisfied that a credible threat of enforcement exists as to

each Defendant.4 The Eleventh Circuit has described the analysis for determining

whether a credible threat of enforcement exists as “quite forgiving.” Wilson v. State

Bar of Ga., 132 F.3d 1422, 1428 (11th Cir. 1998) (citation omitted). Indeed, “[i]f a

challenged law or rule was recently enacted, or if the enforcing authority is

defending the challenged law or rule in court, an intent to enforce the rule may be

inferred.” Harrell, 608 F.3d at 1257. HB1 is newly enacted, and all Defendants are

4 This discussion excludes Attorney General Moody who, as discussed below, has no

enforcement authority vis-à-vis HB1.

defending it. On that basis alone, this Court finds a credible threat of enforcement

exists.

But even if that were not enough, public statements by Governor DeSantis

and Sheriff Williams leave this Court with little doubt that they intend to enforce

HB1. See News Release, Office of Gov. Ron DeSantis, What are They Saying:

Governor Ron DeSantis Signs Hallmark Anti-Rioting Legislation Taking

Unapologetic Stand for Public Safety (Apr. 19, 2021),

https://www.flgov.com/2021/04/19/what-they-are-saying-governor-ron-desantis-

signs-hallmark-anti-rioting-legislation-taking-unapologetic-stand-for-public-

safety/. Plus, as for all the sheriffs, Florida law states in no uncertain terms that they

“shall . . . [s]uppress tumults, riots, and unlawful assemblies in their counties with

force and strong hand when necessary.” § 30.15(1)(f), Fla. Stat. (emphasis added).

This Court seriously doubts that any of the sheriffs would neglect such an explicit

statutory duty. For all these reasons, it is manifestly clear that a credible threat of

enforcement exists as to sections 2, 14, 15, and 16.

Thus, when it comes to associational standing, Plaintiffs have alleged an

injury-in-fact that is ripe for adjudication. Having so decided, this Court turns to the

second element of standing, causation.

2. Causation

As described above, this Court is satisfied that Plaintiffs have suffered an

injury-in-fact as to sections 2, 14, 15, and 16 of the Act.5 But an injury-in-fact is not

enough, Plaintiffs must also show causation and redressability. Lujan, 504 U.S. at

560.

First, causation. Plaintiffs must establish causation by showing that “their

injuries are connected with” Defendants’ conduct. Wilding v. DNC Servs. Corp., 941

F.3d 1116, 1125 (11th Cir. 2019) (cleaned up) (quoting Trump v. Hawaii, 138 S. Ct.

2392, 2416 (2018)). In other words, Plaintiffs must show that their injury is “fairly

traceable to the challenged action of the defendant, and not the result of the

independent action of some third party not before the court.” Lujan, 504 U.S. at 560.

To do so, Plaintiffs need only show “that there is a substantial likelihood of

causation.” Duke Power Co. v. Env’t Study Grp., 438 U.S. 59, 75 n.20 (1978). This

is not an exacting standard; “[p]roximate causation is not a requirement of Article

III standing.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

134 (2014). And thus “[a] plaintiff . . . need not show (or, as here, allege) that ‘the

defendant’s actions are the very last step in the chain of causation.’ ” Wilding, 941

F.3d at 1126 (quoting Bennett v. Spear, 520 U.S. 154, 168–69 (1997)). “[E]ven

harms that flow indirectly from the action in question can be said to be ‘fairly

5 Corresponding with sections 316.2045, 836.115, 870.01, and 870.02 respectively.

traceable’ to that action for standing purposes.” Focus on the Fam. v. Pinellas

Suncoast Transit Auth., 344 F.3d 1263, 1273 (11th Cir. 2003).

i. Governor DeSantis

Starting with Governor DeSantis, he adopts by reference Attorney General

Moody’s standing arguments. ECF No. 39 at 15. Nonetheless, the Governor’s

traceability argument is clear: “Plaintiffs’ purported injury is not ‘fairly traceable’ to

[the Governor] because [he] has no enforcement authority over the laws they

challenge.” ECF No. 38 at 14 (citing Jacobson, 974 F.3d at 1256). In large part, this

argument overlaps with the Governor’s Ex parte Young arguments.6 And so this

Court discusses them here, keeping in mind that standing requires a more rigorous

analysis. See Jacobson, 974 F.3d at 1256.

Governor DeSantis argues that his “status and authority as Governor of

Florida do not, as a matter of law, make him a proper party to this case.” ECF No. 39

at 13. This Court agrees. And it has not been shy about dismissing Governor

DeSantis from cases where he did “not have more than ‘some connection’ with the

underlying claim.” See Namphy, 493 F. Supp. 3d at 1137; Support Working Animals,

Inc. v. DeSantis, 457 F. Supp. 3d 1193, 1209 (N.D. Fla. 2020). On this argument,

6 In Ex parte Young, the Supreme Court created a legal fiction in which, under some

circumstances, a suit against a state officer in their official capacity for prospective relief “is not a

suit against the state, and, accordingly, does not violate the Eleventh Amendment.” Grizzle v.

Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011). Governor DeSantis argues that he does not have a

sufficient connection to HB1 for the legal fiction to apply.

this Court can quickly resolve traceability as to sections 2 and 14 of the Act.7 No

provision of Florida law provides the Governor with any enforcement authority

when it comes to these sections. Plaintiffs do not attempt to argue otherwise. Thus,

when it comes to sections 2 and 14, Plaintiffs lack standing to sue Governor

DeSantis. See Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017)

(“At least one plaintiff must have standing to seek each form of relief requested in

the complaint.”).

Sections 15 and 16, however, are trickier.8 As to these sections, Plaintiffs

argue that the Governor has enforcement power because Florida law specifically

gives the Governor the power to call out the militia in response to “a riot, a mob, an

unlawful assembly, a breach of the peace, or resistance to the execution of the laws

of the state.” § 250.28, Fla. Stat. Plus, Governor DeSantis used this very power in

response to protests in May and June 2020. ECF No. 76 at 15. Governor DeSantis

responds that his militia power is insufficient to render Plaintiffs’ injuries traceable

to him, claiming that such “power is part of the Governor’s general executive

authority to enforce the law and protect the public.” ECF No. 38 at 3.

7 As described above, section 2 makes it a noncriminal traffic infraction to obstruct a public

street, highway, or road. § 316.2045, Fla. Stat. (2021); § 318.14(1), Fla. Stat. (2021). Section 14

creates the crime of “cyberintimidation by publication.” § 836.115, Fla. Stat. (2021).

8 To recap, section 15 defines “riot” and section 16 changes when bail is available for those

arrested for unlawful assembly. § 870.01, Fla. Stat. (2021); § 870.02, Fla. Stat. (2021).

But this Court is not convinced. Section 250.28’s delegation of power strikes

this Court as anything but general. And executive power is the only power the

Governor wields. Does Governor DeSantis really contend that no plaintiff in any

case could ever have standing to sue him? Still, there are reasons to suspect that

Governor DeSantis’s power to deploy the militia might be insufficient to establish

standing. For example, the Governor can only authorize a military deployment to

suppress a riot that “civil authorities are unable to suppress.” § 250.28, Fla. Stat.9

This Court, however, need not decide whether the Governor’s power to call out the

militia, on its own, makes Plaintiffs’ injuries traceable to Governor DeSantis. This

is because other provisions of Florida law give the Governor the power to enforce

sections 15 and 16 of the Act.

Section 14.022(2), Florida Statutes, gives the Governor the power, in his or

her complete discretion, to “by proclamation, declare that, because of unlawful

assemblage, violence, overt threats of violence, or otherwise, a danger exists to the

person or property of any citizen or citizens of the state.” Upon making such a

proclamation, the Governor may “[o]rder any sheriff . . . to exercise fully the powers

9 That said, other provisions may give the Governor more discretion to deploy the militia.

See Fla. Const. art. IV, § 1(d); § 250.06(4), Fla. Stat. On the other hand, whether Florida law

authorizes it or not, Governor DeSantis has ordered the Florida National Guard to respond to

protests that he himself acknowledged were peaceful. See News Release, Office of Gov. Ron

DeSantis, Gov. Ron DeSantis Reports That Fla. Demonstrations Have Remained Largely Peaceful

Over Past 24 Hours (June 2, 2020), https://www.flgov.com/2020/06/02/governor-ron-desantis-

reports-that-florida-demonstrations-have-remained-largely-peaceful-over-past-24-hours.

granted them . . . under s. 30.15(1)(f) (suppress tumults, riots, and unlawful

assemblies in their counties with force and strong hand when necessary)” and

“[o]rder and direct the State Highway Patrol, and each and every officer thereof, to

do and perform such acts . . . as the Governor may direct” that the Governor believes

“necessary in the circumstance to maintain peace and good order.”

Id. § 14.022(3)(b)–(c).

In other words, Florida law specifically gives the Governor the power to order

sheriffs to suppress riots and unlawful assemblies and to take direct command of the

Florida Highway Patrol to do the same. Governor DeSantis has not hesitated to use

this power. See ECF No. 1 ¶ 37 n.2 (citing June 2, 2020 statement from Governor

DeSantis that he is mobilizing “more than 1,300 sworn FHP troopers to support local

law enforcement efforts”). Plaintiffs’ injuries are therefore traceable to the Governor

in a way that the plaintiffs’ injuries in Jacobson were not.

In Jacobson, the plaintiffs attempted to sue the Florida Secretary of State in a

challenge to Florida’s ballot order law. But the court explained that “[t]he problem

for the [plaintiffs] [was] that Florida law tasks the Supervisors, independently of the

Secretary, with printing the names of candidates on ballots in the order prescribed

by the ballot statute.” Jacobson, 974 F.3d at 1253. The court paused to emphasize

that the Supervisors were “independent officials not subject to the Secretary’s

control” and that “[o]nly the Governor of Florida . . . may suspend county officials

such as supervisors.” Id.

Here, Florida law gives Governor DeSantis the power to specifically order the

sheriffs to enforce sections 15 and 16 and to suspend sheriffs who decline to obey

his directives. Fla. Const. Art. IV, § 7(a) (stating the governor may suspend “any

county officer” for “malfeasance, misfeasance, neglect of duty, drunkenness,

incompetence, permanent inability to perform official duties, or commission of a

felony”).10

That the Florida Senate must later approve or deny any suspension does not

make suspensions less coercive. Indeed, the fact that the Governor may reinstate a

suspended sheriff at any time before the senate finalizes their removal creates a

carrot and stick through which the Governor may exert control. Id. And in this

Court’s experience, Governor DeSantis has not been timid about exercising his

removal powers. See Israel v. DeSantis, No. 4:19cv576-MW/MAF, 2020 WL

2129450, at *1 (N.D. Fla. May 5, 2020).11

10 Florida law also gives the Governor the power to order the Florida Department of Law

Enforcement to investigate the sheriffs before the Governor suspends them. § 943.03, Fla. Stat.

11 In Abusaid v. Hillsborough County Board of County Commissioners, the Eleventh

Circuit questioned whether section 14.022, combined with the Governor’s removal power,

rendered Florida sheriffs agents of the state. 405 F.3d 1298, 1307 (11th Cir. 2005). Because, the

court said, both powers apply “only in exceptional circumstances,” they did not “alter that under

Florida’s regime the Sheriff generally functions as a county official.” Whether a sheriff generally

functions as a county official is an entirely different issue from whether Florida law gives the

Governor the power to enforce Florida’s riot statute, and thus Abusaid has no bearing on whether

That is not to say that the power to suspend alone can establish that Plaintiffs’

injuries are traceable to Governor DeSantis. But here, Florida law combines that

power with the power to specifically order sheriffs to enforce the challenged law and

to take control of state law enforcement—specifically the Florida Highway Patrol—

to do the same.

In short, Governor DeSantis’s mere status as Florida’s chief executive does

not mean that injuries inflicted by the state are always traceable to him, but neither

does it mean injuries inflicted by the state are never traceable to him. Instead,

traceability turns on nuanced questions of Florida law, and varies from case to case.

Here, the Governor has the power to enforce sections 15 and 16 and Plaintiffs’

injuries are therefore traceable to him. See Reprod. Health Servs. v. Strange, 3 F.4th

1240, 1252 (11th Cir. 2021) (explaining that “[t]he plaintiffs’ injuries are traceable

to the Attorney General and the District Attorney” because “[t]he Act contemplates

enforcement by the Attorney General and the District Attorney”).12

Plaintiffs’ injuries are traceable to Governor DeSantis. Moreover, Abusaid emphasized that the

sheriff in that case had identified “no instance in which the governor has actually exercised this

authority to remove a sheriff.” Id. But this Governor has exercised that authority. Israel, 2020 WL

2129450, at *1. And he has also exercised his authority under section 14.022. ECF No. 1 ¶ 37 n.2.

Accordingly, Abusaid does not alter this Court’s conclusion that Governor DeSantis has the power

to enforce sections 15 and 16 of the Act.

12 Because Governor DeSantis has the power to enforce sections 15 and 16, he has “some

connection” with the Act’s enforcement and is a proper party under Ex parte Young. See Osterback

v. Scott, 782 F. App’x 856, 858–59 (11th Cir. 2019).

ii. Defendant Sheriffs

As to the Defendant Sheriffs, this Court has determined that Plaintiffs can

establish an injury in fact—be it through a diversion of resources theory or a self-

censorship theory—with respect to sections 2, 14, 15, and 16 of the Act. These

provisions amend several sections of the Florida Statutes governing Florida’s

Uniform Traffic Control Law and criminal laws, creating or redefining new crimes

and imposing tougher penalties and collateral consequences that allegedly violate

Plaintiffs’ members’ constitutional rights and require Plaintiffs to divert their limited

resources from core activities to counter the effects of the amended statutes. To have

standing to proceed against the Defendant Sheriffs, Plaintiffs must also show that

their injury is “fairly traceable to the challenged action of the [Defendant Sheriffs],

and not the result of the independent action of some third party not before the court.”

Lujan, 504 U.S. at 560.

To start, this Court will make it simple for the Defendant Sheriffs—some of

whom appear confused as to why they have been hauled into court in the first place.13

13 Specifically, Sheriff Williams asserts it is “far from apparent” why he should be required

to be a party to this lawsuit and suggests he has been “arbitrarily singled out” in this case. ECF

No. 49 at 5–6. This Court will make clear what Sheriff Williams does not seem to understand. He

has been named as a codefendant in an action involving several plaintiffs, including an

organization based in his jurisdiction and subject to his authority to enforce the law. Members of

the organization based in his jurisdiction regularly protest “racial bias” and “police relations,” but

with the passage of the Act, this organization’s members are self-censoring for fear of arrest by

Sheriff Williams (or his deputies). This Court will not engage with Sheriff Williams’s suggested

speculation that this action is simply an indirect attempt to “defund the police.” This is not a legal

argument and deserves no response. Indeed, Sheriff Williams’s ad hominem attacks have no place

Here, the analysis is straightforward. The “challenged action” with respect to the

Defendant Sheriffs is their enforcement of the challenged statutory provisions that

cause Plaintiffs’ injuries—i.e., self-censorship and the diversion of resources. The

provisions at issue are each enforceable by the Defendant Sheriffs. Thus, Plaintiffs’

injuries resulting from enforcement of these new provisions are traceable to the

Defendant Sheriffs.

Not only are Plaintiffs’ injuries traceable to the Defendant Sheriffs’ general

authority to enforce the criminal laws of Florida, but sections 2, 15, and 16 arguably

implicate the Defendant Sheriffs’ particular statutory authority with respect to

quelling riots and maintaining the peace.14 As previously discussed, Florida sheriffs

“shall . . . [s]uppress tumults, riots, and unlawful assemblies in their counties with

force and strong hand when necessary.” § 30.15(1)(f), Fla. Stat. Florida sheriffs also

“shall . . . [a]pprehend, without warrant, any person disturbing the peace, and carry

that person before the proper judicial officer, that further proceedings may be had

against him or her according to law.” Id. § 30.15(1)(g). They are the “conservators

in this litigation. For his part, Sheriff Tony offers the unhelpful observation that had he been the

only named defendant in this action, venue would not be proper in the Northern District of Florida.

ECF No. 48 at 3. Indeed, had the Governor not signed HB1, this action would not exist. But the

bill is now law and Sheriff Tony is a named Defendant along with the Sheriff of Leon County and

the Governor, which makes the Northern District of Florida a proper venue.

14 As discussed in more detail below, the Defendant Sheriffs are not acting as “arms of the

state” when enforcing the new law prohibiting “cyberintimidation by publication,” which section

14 of the Act creates. See § 836.115, Fla. Stat. (2021).

of the peace in their counties,” and the Governor can order them “to do all things

necessary to maintain peace and good order.” § 14.022(3)(b), Fla. Stat.

Sheriff Williams’s argument that “Sheriffs cannot criminalize anything” and

that “none of Plaintiffs’ points relate to any activity by the Sheriffs,” misses the boat

given the Defendant Sheriffs’ statutory duty to, among other things, “suppress . . .

riots . . . and unlawful assemblies” and make warrantless arrests of persons

disturbing the peace. ECF No. 82 at 10. Indeed, Sheriff McNeil implicitly concedes

that he is responsible for enforcing the challenged provisions in asserting he is not

tasked with enforcing all sections of the Act. See ECF No. 50 at 3–4 (also noting the

“possibility” that Sheriff McNeil is responsible for enforcing the amended statutes

against Plaintiff Dream Defenders). This Court agrees with Sheriff McNeil that the

Defendant Sheriffs are not tasked with enforcing all sections of the Act; however,

they are tasked with enforcing the statutes amended by sections 2, 14, 15, and 16 of

the Act.

The fact that Plaintiffs have not alleged a specific instance of enforcement

under these new provisions is not fatal to this analysis. Nor is the fact that Sheriff

Tony’s subordinate has publicly announced that he directed his officers not to

enforce the new law. As explained above, this is a pre-enforcement challenge. An

“alleged danger of this [Act] is, in large measure one of self-censorship; a harm that

can be realized without an actual prosecution.” ACLU v. Fla. Bar, 999 F.2d 1486,

1493 (11th Cir. 1993) (emphasis in original) (quoting Virginia v. Am. Booksellers

Ass’n, Inc., 484 U.S. 383, 393 (1988)). In addition, Plaintiffs have alleged that

Defendant Sheriffs are responsible for enforcing the challenged provisions—an

allegation taken as true for the purposes of this motion to dismiss, despite Sheriff

Tony’s assurances to this Court that he does not intend to enforce the new law.15

The fact of the matter is the Defendant Sheriffs are responsible for, among

other things, maintaining the peace, arresting those who disturb the peace, and

suppressing “riots” and “unlawful assemblies.” Their enforcement authority in this

respect causes the self-censorship and diversion of resources based on Plaintiffs’

well-founded fears that the challenged provisions will be enforced against them.

Notwithstanding Sheriff Tony’s assertion that he will not enforce the new

provisions, his full-throated defense of the challenged provisions leads this Court to

15 Indeed, Sheriff Tony’s assertion that he “stands by” his subordinate’s “policy

pronouncement” that the Sheriff’s Office will “not . . . enforce HB1” does little work to show why

Plaintiffs’ claims are due to be dismissed as to him simply because he has an official policy not to

enforce HB1. See ECF No. 48 at 4. The Act is comprised of 21 sections and amends numerous

provisions of Florida law, including several sections of Florida’s criminal statutes. At this point, it

is not clear exactly what the Broward County Sheriff’s Office policy is with respect to enforcement

of specific provisions amended or created by the Act and whether the Sheriff is bound by his

subordinate’s “policy pronouncement.” Moreover, even though Sheriff Tony asserts in his papers

that he “stands by” his subordinate’s announcement about not enforcing HB1, he is not bound by

his court statements. See ACLU, 999 F.2d at 1494 (noting that despite defendants’ “acquiescence

in” plaintiff’s initial complaint, the fact that they continued to assert the challenged provision was

constitutional gave the Eleventh Circuit “no reason to think it would not be enforced in the future

against [plaintiff or others] . . . because [defendants were not] bound by [their] court statements”).

“Mid-litigation assurances are all too easy to make and all too hard to enforce.” W. Ala. Women’s

Ctr. v. Williamson, 900 F.3d 1310, 1328 (11th Cir. 2018). This Court is hard pressed to believe

Sheriff Tony will not act to suppress a riot should widespread violence reach his jurisdiction or if

the Governor orders him to do so.

infer he will enforce the challenged provisions. See Wollschlaeger, 848 F.3d at 1305

(noting that “an intent to enforce the challenged provisions may be inferred” when

the Act is challenged soon after its enactment and the defendant “has since

vigorously defended the Act in court”). Accordingly, Plaintiffs have shown that their

alleged injuries are fairly traceable to the Defendant Sheriffs authority to enforce the

challenged provisions.

iii. Attorney General Moody

Attorney General Moody, as Attorney General of Florida, argues that

Plaintiffs have failed to show an injury in the first place. ECF No. 38 at 10. She then

goes on to say that any injury Plaintiffs may show is not fairly traceable to, nor

redressable by her. Id. at 14. As discussed supra, Plaintiffs have not shown injury as

to sections 1, 3 through 13, or 17 through 21. Nor have they shown that any potential

injury from the remaining four sections would be traceable to the Attorney General.

Therefore, this Court agrees with the Attorney General’s second argument—

Plaintiffs’ injuries are not traceable to her.

Sections 2, 14, 15, and 16 each either newly criminalize behavior or modify

extant criminal provisions. Plaintiffs argue that traceability and redressability

between the injury caused by these criminal statutes and the Attorney General of

Florida is a straightforward affair due to that officeholder’s “general superintendence

and direction over the several state attorneys . . . .”. ECF No. 85 at 3 (quoting § 16.08,

Fla. Stat. (2021)). They rely on Reproductive Health Services v. Strange, in which

the Eleventh Circuit found the Alabama Attorney General to be a proper party, along

with a local District Attorney, as the plaintiffs there showed a credible threat of

enforcement. 3 F.4th at 1252–55. However, due to our federalist system and the

distinct governmental structures of our fifty states, the situation in this case is

different from the situation in Strange.

While the State of Alabama has chosen to entrust its Attorney General with

the power to “enforce[e] criminal laws in Alabama,” id. at 1256 n.5 (citing Ala. Code

§§ 12-17-184(2), 36-15-14, & 36-15-21), the State of Florida has not done so with

its Attorney General. As Attorney General Moody points out, see ECF No. 81 at 4–

5, she lacks the ability to criminally prosecute anyone for a violation of a statute

amended by HB1.16 While any number of other state officials may be involved in

the decision to arrest or prosecute someone under sections 2, 14, 15, or 16, Attorney

General Moody is not so privileged.17

Plaintiffs quote section 16.08, Florida Statutes, which states that the Attorney

General “shall exercise a general superintendence and direction over the several state

16 The Office of Statewide Prosecution is empowered to investigate and prosecute certain

offenses, none of which are relevant here. See § 16.56, Fla. Stat. (2021).

17 But see Frequently Asked Questions, Office of Attorney General Ashley Moody,

http://myfloridalegal.com/pages.nsf/Main/20AFA53C4EC9E3EA85256CCB00522BE1#question

12 (last visited Aug. 6, 2021) (“The Constitution provides the Attorney General with authority to

investigate and prosecute violations of duly enacted statutes.”).

attorneys of the several circuits as to the manner of discharging their respective

duties . . . .” They also refer to the Attorney General as “the State’s chief legal

officer,” ECF No. 76 at 12, and cite the Eleventh Circuit’s reference to the

officeholder as Florida’s “principal prosecuting attorney.” United States v. Domme,

753 F.2d 950, 957 (11th Cir. 1985). But Attorney General Moody points out that her

auspicious authority and illustrious title are merely an illusion—under Florida’s

Constitution, State Attorneys have discretion and independence, and the Attorney

General can no more superintend and direct their lunch order than their enforcement

or non-enforcement of these criminal provisions. ECF No. 87 at 3 (citing Fla. Const.

Art. 5, § 17). Meaning that Attorney General Moody cannot cause State Attorneys

to prosecute Plaintiffs, causing an injury, nor can she tell those State Attorneys to

not prosecute Plaintiffs, redressing any injury. And since Domme, the Eleventh

Circuit has made it clear that a state official merely being the “chief [x] officer” does

not make a plaintiff’s injuries derived from [x] traceable to or redressable by that

state official. See Jacobson, 974 F.3d at 1254.

As Attorney General Moody has made clear, the Attorney General of the State

of Florida has little to nothing to do with the criminal laws of the state of Florida.

This Court must agree with the Attorney General’s admission. Plaintiffs’ injuries

cannot be traced to Attorney General Moody, an order enjoining Attorney General

Moody cannot redress Plaintiffs’ injuries, and Plaintiffs cannot maintain her as a

defendant in this matter. Accordingly, Plaintiffs claims against Attorney General

Moody are DISMISSED for lack of standing.

3. Redressability

Next, redressability. The redressability prong “focuses . . . on whether the

injury that a plaintiff alleges is likely to be redressed through the litigation.” Sprint

Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 287 (2008) (emphasis

removed). A “substantial likelihood” of redressability will satisfy this prong. Duke

Power, 438 U.S. at 79.

i. Governor DeSantis

Here, enjoining Governor DeSantis from using his powers, which he has used

already, to enforce Sections 15 and 16 will go a long way towards redressing

Plaintiffs’ injuries. To understand why, one need only ask what practical effect such

an order would have. See Utah v. Evans, 536 U.S. 452, 464 (2002) (finding

redressability where a favorable ruling’s “practical consequence” was to make it

more likely “that the plaintiff would obtain relief that directly redresses the injury

suffered”). Enjoining Governor DeSantis would remove the threat that the Florida

National Guard, thousands of state troopers, or the sheriffs themselves, will, under

the Governor’s orders, enforce sections 15 and 16 against Plaintiffs. And it makes

no difference that, were Governor DeSantis enjoined, sheriffs across Florida might

still enforce sections 15 and 16. “Article III . . . does not demand that the redress

sought by a plaintiff be complete.” Moody v. Holman, 887 F.3d 1281, 1287 (11th

Cir. 2018); accord I. L. v. Alabama, 739 F.3d 1273, 1282 (11th Cir. 2014).

In sum, this Court is hard-pressed to say that enjoining Governor DeSantis,

HB1’s chief proponent who possesses—and has recently used—the direct power to

suppress riots, cannot at least partially redress Plaintiffs’ alleged injuries.

Accordingly, this Court finds that, as to sections 15 and 16, an injunction against

Governor DeSantis would redress Plaintiffs’ injuries.

ii. Defendant Sheriffs

As to the Defendant Sheriffs, “in assessing this third component of the

standing doctrine, [this Court] ask[s] whether a decision in a plaintiff’s favor would

‘significantly increase the likelihood that she would obtain relief that directly

redresses the injury that she claims to have suffered.” Lewis v. Gov. of Ala., 944 F.3d

1287, 1301 (11th Cir. 2019) (quoting Harrell, 608 F.3d at 1260 n.7). In addition,

this Court asks if it is “the effect of the court’s judgment on the defendant—not an

absent third party—that redresses the plaintiff’s injury, whether directly or

indirectly[?]” Lewis, 944 F.3d at 1301 (quoting Dig. Recognition Network, Inc. v.

Hutchinson, 803 F.3d 952 (8th Cir. 2015)). Here, the answer to both questions is yes.

Because the Defendant Sheriffs’ authority to enforce Sections 2, 15, and 16 causes

Plaintiffs’ injuries, relief against them will directly redress those injuries.

Specifically, Plaintiffs’ requested relief—an order declaring the challenged

provisions unconstitutional and enjoining Defendant Sheriffs from taking any action

to enforce those provisions—will directly redress Plaintiffs’ alleged injuries flowing

from their reasonable fear that the challenged provisions will be enforced against

their members by Defendant Sheriffs. Rather than seek relief against some absent

third party like a State Attorney, Plaintiffs seek relief against officials who are on

the frontlines of law enforcement in Florida and whose statutory duty to suppress

riots and unlawful assemblies compels them to enforce the challenged provisions.

Having satisfied the injury, traceability, and redressability prongs, Plaintiffs

have standing to seek an injunction against Governor DeSantis prohibiting him from

enforcing sections 15 and 16 and against the Defendant Sheriffs prohibiting them

from enforcing sections 2, 15, and 16.

B

Finally, the Defendant Sheriffs have each sought dismissal of Plaintiffs’ pre-

enforcement challenge for failure to adequately allege an official policy or custom

causing Plaintiffs’ alleged constitutional injuries pursuant to Monell, 436 U.S. at

694. ECF No. 48 at 8; ECF No. 50 at 5; ECF No. 80 at 4–5.18 Plaintiffs assert in

18 Some of the Defendant Sheriffs appear to suggest that one can only be sued in an action

to enjoin enforcement of a particular law if the party had a particular role in enacting the law. See,

e.g., ECF No. 49 at 15 (“In no manner do Plaintiffs allege the Sheriff was party to the Act’s

drafting, passage, or ultimate signing into law.”); ECF No. 50 at 5 (“Here, Plaintiffs do not allege

that Sheriff McNeil was responsible for enacting HB1.”). This is not the law, nor have Defendant

Sheriffs cited any authority to support the suggestion.

response that this is not a Monell claim and any failure to allege an unconstitutional

policy or custom is not dispositive of their claims against the Sheriffs.19 Instead,

Plaintiffs argue that their claims seeking prospective injunctive relief are brought

against the Defendant Sheriffs pursuant to Ex parte Young because the Defendant

Sheriffs are acting as “arms of the state” in the context of this case. ECF No. 76 at

20–23. Plaintiffs’ argument is well-taken.

The Eleventh Amendment ordinarily bars citizens from suing their state in

federal court unless the state waives its immunity or Congress abrogates it under

section 5 of the Fourteenth Amendment. See Attwood v. Clemons, 818 F. App’x 863,

866 (11th Cir. 2020). But Ex parte Young, 209 U.S. 123 (1908), holds that “a suit

alleging a violation of the federal constitution against a state official in his official

capacity for injunctive relief on a prospective basis is not a suit against the state,

and, accordingly, does not violate the Eleventh Amendment.” Attwood, 818 F. App’x

at 867 (emphasis added) (quoting Grizzle, 634 F.3d at 1319). Here, Plaintiffs assert

that they are suing Defendant Sheriffs in their official capacity—indeed, as “state

officials”—pursuant to Ex parte Young because Defendant Sheriffs function as

19 Allegations that the Defendant Sheriffs adopted a policy or custom that causes Plaintiffs’

constitutional injuries could have been an alternative basis to reach the Defendant Sheriffs in this

action. However, by Plaintiffs’ own assertions, they have arguably not alleged a policy or custom,

nor have they argued that their claims satisfy Monell.

“arms” or “agents” of the state, rather than county officials, when they enforce the

challenged provisions.

The first question this Court must decide is whether Defendant Sheriffs are

considered “arms of the state” for purposes of Eleventh Amendment immunity and

application of the Ex parte Young exception to immunity. In other words, are

Defendant Sheriffs properly considered “state officials” under Ex parte Young?

The Eleventh Circuit has previously considered whether, and under what

circumstances, Florida sheriffs may be considered “arms of the state.” See, e.g.,

Freyre v. Chronister, 910 F.3d 1371, 1385 (11th Cir. 2018) (holding that “while this

case presents an especially close call,” the Hillsborough County Sheriff’s Office

does not act as an arm of the state when conducting child-protective investigations

under a Grant Agreement with the Florida Department of Children and Families);

Stanley v. Israel, 843 F.3d 920, 926 (11th Cir. 2016) (holding that Florida Sheriff

acting in capacity as Chief Correctional Officer in the hiring and firing of deputies

is not an arm of the state); Abusaid, 405 F.3d at 1305 (holding that “a Florida sheriff,

when acting to enforce a county ordinance, is not an arm of the state”). The Eleventh

Circuit has “repeatedly acknowledged that Florida sheriffs are, by default, county

officers.” Freyre, 910 F.3d at 1381. However, “[n]otwithstanding a Florida sheriff’s

presumptive status as a county officer, [the Eleventh Circuit] ha[s] also held out the

possibility that when carrying out some functions, the sheriff may well be acting as

an arm of the state.” Id. (quoting Abusaid, 405 F.3d at 1310).

In determining whether Defendant Sheriffs should be considered state or

county policymakers for purposes of this section 1983 action, “the question is not

whether the sheriff[s] act[] for the state or the county in some categorical, ‘all or

nothing manner,’ but rather whether the sheriff[s] . . . act[] for the state in a particular

area, or on a particular issue.” Abusaid, 405 F.3d at 1303 (quoting McMillian v.

Monroe Cnty., 520 U.S. 781, 785 (1997) (holding that Alabama sheriff was

policymaker for the state, not for the county)). Accordingly, this Court must

determine whether Defendant Sheriffs, “while engaged in the relevant function,” are

acting as arms of the state by considering four factors; namely, (1) how state law

defines the entity, (2) what degree of control the state maintains over the entity, (3)

the source of the entity’s funds, and (4) who bears financial responsibility for

judgments entered against the entity. Id. (citing Manders v. Lee, 338 F.3d 1304, 1309

(11th Cir. 2003)).

This Court recognizes that the Eleventh Circuit has not had occasion to say

definitively that a Florida sheriff is deemed an “arm of the state” for Eleventh

Amendment purposes. It appears that every time the Eleventh Circuit has been

presented with the question in the context of various functions, it has found—though

sometimes a close call—that the Florida sheriff at issue was not functioning as an

“arm of the state.” Given the Eleventh Circuit’s hesitation to find that a Florida

sheriff has acted as an arm of the state, this Court is unwilling to embrace the

categorical approach Plaintiffs advance. The question is more nuanced than simply

whether a Florida sheriff enforcing state law is automatically acting as an arm of the

state. Instead, this Court must focus on the function at issue—enforcing the

challenged provisions; namely, suppressing riots and unlawful assemblies.

Though sections 2, 15, and 16 of the Act directly implicate the Defendant

Sheriffs’ specific function of suppressing riots and unlawful assemblies, section 14

does not. Section 14 creates a new internet crime that is unrelated to Defendant

Sheriffs’ enumerated duty to suppress riots and unlawful assemblies. So, while

Plaintiffs may be injured by section 14, and that injury is arguably traceable to the

Defendant Sheriffs as well as redressable by them, Plaintiffs must still satisfy the

requirements of Monell to proceed against the Defendant Sheriffs with respect to

section 14. See footnote 19. Plaintiffs have not argued that their allegations satisfy

Monell. Id. Accordingly, their claims, to the extent they pertain to challenging

section 14, may not proceed against Defendant Sheriffs. See Weiland v. Palm Beach

Cnty. Sheriff’s Off., 792 F.3d 1313, 1330 (11th Cir. 2015) (affirming dismissal for

failure to allege factual allegations regarding a custom or policy causing

constitutional injury).

On the other hand, in the context of this specific function and for the reasons

set out below, this Court finds the Defendant Sheriffs are acting as “arms of the

state” when enforcing sections 2, 15, and 16 of the Act.

(1) How does state law define the entity?

As to the first Manders factor, this Court must consider “state law concerning

the status of the entity generally, and state law concerning the specific function the

entity performs in the instant case.” Freyre, 910 F.3d at 1381 (citations omitted).

With respect to how Florida law defines sheriffs generally, and as mentioned above,

“Florida sheriffs are, by default, county officers.” Id. Several features of Florida law

generally define sheriffs as county officers, including the Florida Constitution, “the

fact that Florida sheriffs are generally elected by electors of each county,” Florida

counties’ ability to abolish the office of sheriff altogether, and “Florida courts’

recognition of sheriffs as county officers.” Id. (citations omitted).

However, “[w]hen carrying out some . . . enumerated functions, the sheriff

may well be acting as an arm of the state.” Abusaid, 405 F.3d at 1310 (citing

enumerated functions under section 30.15, Florida Statutes). Here, state law—not

county ordinance—defines the function at issue. State law specifically requires

sheriffs to (1) “[b]e conservators of the peace in their counties,” (2) “[s]uppress

tumults, riots, and unlawful assemblies in their counties with force and strong hand

when necessary,” and (3) “[a]pprehend, without warrant, any person disturbing the

peace, and carry that person before the proper judicial officer[.]” § 30.15 (e), (f), &

(g), Fla. Stat. The challenged provisions before this Court include amended

definitions for “riots” and “unlawful assemblies”—definitions which have the force

of law statewide and guide the Defendant Sheriffs in the execution of their

enumerated duties under section 30.15. Accordingly, the Defendant Sheriffs’

relevant function involves carrying out “state policy” through enforcement of the

challenged provisions. This Court finds this factor is mixed between the general

definition of Florida sheriffs as county officers and the “arm-of-the-state” function

of sheriffs in suppressing riots and unlawful assemblies. Because the Eleventh

Circuit has emphasized the “function-by-function” approach to this analysis, this

Court finds this factor, situated in the context of the Sheriffs’ function in suppressing

riots and unlawful assemblies, weighs in favor of “arm-of-the-state” status.

(2) What degree of control does the State maintain over the entity?

“The second factor requires [this Court] to look at the degree of control the

state exercises over the entity generally as well as with respect to the specific

function at issue.” Freyre, 910 F.3d at 1382–83. Without question, “the office of the

sheriff is fundamentally a county entity.” Id. at 1383.

“The state does, however, retain some control over its sheriffs.” Abusaid, 405

F.3d at 1307. For instance, “the governor may remove a county officer.” Id. (citing

Fla. Const. art. IV, § 7). As previously discussed, the Eleventh Circuit in Abusaid

recognized “this removal power applies only in extraordinary circumstances,” and

took care to note the Florida sheriff in that case had shown “no instance in which the

governor has actually exercised this authority to remove a sheriff (or any other

county officer, for that matter).” Id. But times have changed since the Eleventh

Circuit issued this opinion in 2005. This Court is intimately familiar with two

separate occasions upon which the current Governor and his predecessor have flexed

their removal-power muscles to remove at least one sheriff and other county

officials. See Israel, 2020 WL 2129450, at *1 (Walker, C.J.) (order on motions to

dismiss in due process case involving Governor DeSantis’s decision to suspend

former-Sheriff Scott Israel “for several alleged operational and organizational

failures” relating to the 2017 Fort Lauderdale-Hollywood International Airport

shooting and the 2018 Marjory Stoneman Douglas High School Shooting) and

Snipes v. Scott, Case No.: 4:18cv580-MW/CAS, 2019 WL 163352, *1 (N.D. Fla.

Jan. 10, 2019) (Walker, C.J.) (amended order granting in part motion for preliminary

injunction in due process case involving former-Governor Scott’s decision to

suspend former-Broward County Supervisor of Elections Brenda Snipes); see also

Jackson v. DeSantis, 268 So. 3d 662 (Fla. 2019) (denying petition challenging

Governor DeSantis’s suspension of former-Superintendent of Schools for Okaloosa

County Mary Beth Jackson for “neglect of duty” and “incompetence”).

In addition, the Eleventh Circuit has recognized state control over sheriffs in

the Governor’s “authority to enlist sheriffs to help keep the peace.” Abusaid, 405

F.3d at 1307. “[U]pon declaration of a state of emergency,” the Governor may order

any Florida sheriff or sheriffs “to exercise fully the powers granted them, and each

of them, under § 30.15(1)(f) (suppress tumults, riots, and unlawful assemblies in

their counties with force and strong hand when necessary) and to do all things

necessary to maintain peace and good order.” Id. (quoting §§ 14.022(2) &

14.022(3)(b), Fla. Stat.).

Finally, the Eleventh Circuit has noted that “[p]erhaps the most significant

indication of residual state control over county sheriffs is that Florida law expressly

enumerates a list of functions that sheriffs must perform.” Id. at 1308 (referring to

§ 30.15, Fla. Stat.). Among these enumerated functions is a sheriff’s duty to suppress

riots and unlawful assemblies. § 30.15(1)(f), Fla. Stat.

In this case, Plaintiffs’ claims against the Defendant Sheriffs arise out of their

authority to enforce sections 2, 15, and 16 of the Act, including the amended criminal

statute redefining what amounts to a “riot” under Florida law. The Defendant

Sheriffs derive their enforcement authority for the challenged provisions not only

from their positions as county officials, but also from their enumerated functions as

defined by state law. Moreover, their function in “suppressing riots and unlawful

assemblies” is subject to further state control in that the Governor can order them to

exercise this function in certain circumstances and remove them from office for their

failure to do so. See Israel v. DeSantis, 269 So. 3d 491, 496 (Fla. 2019) (Lagoa, J.)

(noting that grounds supporting Governor’s decision to remove sheriff—neglect of

duty and incompetence—are not solely limited to the sheriff’s performance of his or

her statutorily enumerated duties).

Again, this factor is mixed between local control over the office of the sheriff

in general and the function-specific analysis that Manders requires. In the specific

context of the Defendant Sheriffs’ responsibility to suppress riots and unlawful

assemblies, they appear to wear a “ ‘state hat’ . . . because the authority to do so

derives from Florida statutes.” Freyre, 910 F.3d at 1383–84. Similarly, their

obligation to perform this function “derives . . . directly from the State.” Id. at 1384

(quoting United States ex rel. Lesinski v. S. Fla. Water Mgmt. Dist., 739 F.3d 598,

604 (11th Cir. 2014)). On balance, this Court finds this factor—though mixed—

weighs in favor of “arm-of-the-state” status given the state-law origins of Defendant

Sheriffs’ responsibility and obligation to suppress riots and the Governor’s ability to

order the Defendant Sheriffs to perform this exact function. See Manders, 338 F.3d

at 1319 n.35 (“The key question is not what arrest and force powers sheriffs have,

but for whom sheriffs exercise that power) (emphasis in original).

(3) What is the source of the entity’s funds?

The third Manders factor asks what the source of Defendant Sheriffs’ funding

is generally and with respect to the specific function at issue. The Eleventh Circuit

has frequently recognized that “Florida sheriff’s offices are generally funded by

county taxes.” Freyre, 910 F.3d at 1384 (citing Stanley, 843 F.3d at 929). Plaintiffs

have cited no provision to show Defendant Sheriffs receive state funding with

respect to the specific function at issue. But the Eleventh Circuit has recognized

“residual state control” over Florida sheriffs’ budgets based on their ability to appeal

their county’s budget allocation to Florida’s Administrative Commission. Abusaid,

405 F.3d at 1311. However, this Court’s “inquiry on this third prong . . . asks what

is the source of a sheriff’s funds, not (as the second prong asks) what degree of

control the state retains over the budgeting process.” Id. (emphasis added).

Accordingly, this Court finds this factor weighs against “arm-of-the-state” status.

(4) Who bears financial responsibility for judgments entered against the entity?

The Eleventh Circuit “has repeatedly acknowledged that ‘no provision of

Florida law provides state funds to a Florida sheriff to satisfy a judgment against the

sheriff.” Freyre, 910 F.3d at 1385 (quoting Stanley, 843 F.3d at 930). But while the

“state treasury factor is a ‘core concern,’ ” Manders, 338 F.3d at 1327 n.51, “[n]ever

has the Supreme Court required an actual drain on the state treasury as a per se

condition of Eleventh Amendment immunity,” id. at 1327. Though this final factor

weighs against “arm-of-the-state” status, it does not defeat Plaintiffs’ claims against

the Defendant Sheriffs with respect to their role in enforcing sections 2, 15, and 16

of the Act. Plaintiffs have raised claims for declaratory and prospective injunctive

relief—money damages are no issue here. Moreover, to the extent Plaintiffs are

entitled to attorneys’ fees, Sheriff Williams has persuasively demonstrated that the

state, and not the Defendant Sheriffs, may be on the hook down the road, although

the Eleventh Circuit has yet to decide this specific issue with respect to Florida

sheriffs. See ECF No. 49 at 17 (listing out-of-circuit cases and noting that other

courts outside the Eleventh Circuit have held that “when county officials are sued

for their role in enforcing a state law, the county officials are acting as an arm of the

state, and thus the state alone is responsible for attorneys’ fees under 42 U.S.C.

§ 1988”).20

Accordingly, having considered each of the Manders factors generally and

with specific reference to the function at issue, this Court finds that—while a close

call—the Defendant Sheriffs, in their official capacities, are functioning as “arms of

the state” when enforcing state law that prohibits rioting and unlawful assemblies.

This function specifically derives from Florida statutes enumerating Florida sheriffs’

20 Plaintiffs have included a request for attorneys’ fees in their prayer for relief, ECF No.

1 at 60, rather than allege a separate claim for fees. It is obviously too soon to determine whether

Plaintiffs are entitled to attorneys’ fees. Accordingly, this Court takes Sheriff Williams’s argument

regarding Plaintiffs’ request for attorneys’ fees under advisement. Like many of the remaining

issues of which this Order does not dispose, this Court would benefit from further briefing before

resolving this matter.

responsibilities under state law and is subject to various controls by the Governor.

As alleged in the Complaint, the Governor—the very person who can control

Defendant Sheriffs through order and suspension—was an initial proponent of the

“Combatting Violence, Disorder, and Looting, and Law Enforcement Protection

Act,” which ultimately led to enactment of the challenged provisions now at issue.

See ECF No. 1 ¶ 56. This legislation allegedly represented a shift in state policy

toward a more “pro-law enforcement” and “anti-rioting” position. See id. ¶ 120.

Thus, given their enumerated state function to suppress riots under § 30.15(1)(f) and

their authority to enforce the challenged provisions at issue in this case, Defendant

Sheriffs are properly considered arms of the state for purposes of Eleventh

Amendment immunity and proceeding under Ex parte Young.

Finally, “[u]nder Ex parte Young, a litigant must bring his case ‘against a state

official or agency responsible for enforcing the allegedly unconstitutional scheme.”

Osterback, 782 F. App’x at 858–59 (quoting ACLU, 999 F.2d at 1490)). “[A] state

officer, in order to be an appropriate defendant, must, at a minimum, have some

connection with the enforcement of the provision at issue.” Id. at 859 (quoting

Socialist Workers Party v. Leahy, 145 F.3d 1240, 1248 (11th Cir. 1998)). Here,

Defendant Sheriffs have more than “some connection with the enforcement of the

provision[s] at issue”—they have independent enumerated statutory duties to do so

and can be further ordered to do so by the Governor under certain circumstances.

Accordingly, Defendant Sheriffs are appropriate defendants in this case.

III

As indicated above, Plaintiffs only have standing to challenge sections 15 and

16 against the Governor and sections 2, 15, and 16 against the Defendant Sheriffs.

This Court, therefore, will not address the remainder of the sections in determining

whether Plaintiffs have failed to state a claim.

In evaluating Defendants’ motions, this Court accepts the allegations in the

Complaint as true and construes them in the light most favorable to Plaintiffs. See

Hunt v. Amico Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016). “To withstand a

motion to dismiss under Rule 12(b)(6), a complaint must include ‘enough facts to

state a claim to relief that is plausible on its face.’ ” Id. (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A ‘claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.’ ” Id. (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009)). “Plaintiff’s allegations must amount to ‘more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555).

A

Plaintiffs’ Complaint includes four counts. ECF No. 1 at 46–60. Each count

is against each Defendant. Id. ¶¶ 133, 144, 163, 175. Plaintiffs, in their Complaint,

incorporate all of their general factual allegations into each of the four counts. Id. ¶¶

121, 134, 145, 164. Defendants take issue with the format and contents of the

Complaint because they assert it fails to put them on notice of the claims against

them.

This Court has reviewed Defendants’ arguments and the form and substance

of the Complaint. While not a model of clarity, Plaintiffs’ Complaint is not a shotgun

pleading. “Shotgun pleadings are characterized by: (1) multiple counts that each

adopt the allegations of all preceding counts; (2) conclusory, vague, and immaterial

facts that do not clearly connect to a particular cause of action; (3) failing to separate

each cause of action or claim for relief into distinct counts; or (4) combining multiple

claims against multiple defendants without specifying which defendant is

responsible for which act.” McDonough v. City of Homestead, 771 F. App’x 952,

955 (11th Cir. 2019) (citing Weiland, 792 F.3d at 1321–23). The key feature of

shotgun pleadings is that they fail to give defendants “adequate notice” of the claims

being bought against them and the supporting factual allegations for each

claim. Weiland, 792 F.3d at 1323.

Here, Plaintiffs’ Complaint is not a shotgun pleading within the meaning

of McDonough. The Complaint does not adopt each allegation of all the preceding

counts. Instead, Plaintiffs’ Complaint is the type of complaint the Eleventh Circuit

in Weiland did not find to be a shotgun pleading. Id. at 1324 (noting that re-alleging

paragraphs 1 through 49 at the beginning of each count is not the most common type

shotgun pleading). And while the Eleventh Circuit has held that incorporating all the

factual allegations into each claim constitutes shotgun pleading, it has done so when

it is nearly impossible for defendants and the Court to determine with any certainty

which factual allegations give rise to which claims for relief. See Jackson v. Bank of

Am., N.A., 898 F.3d 1348, 1356 (11th Cir. 2018); see also Weiland, 792 F.3d at

1325 (holding that dismissal is appropriate only “where it is virtually impossible to

know which allegations of facts are intended to support which claim(s) for relief”).

This is not the case here.

Here, Defendants’ lengthy motions to dismiss, totaling roughly 100 pages,

belie any assertion that it is virtually impossible for Defendants to understand which

allegations of fact are intended to support which claims for relief. Additionally, this

Court, like Defendants, has no difficulty discerning which factual allegations support

which counts.

As it relates to Count I, Plaintiffs claim that the Act in its entirety violates the

Fourteenth Amendment’s Equal Protection Clause because the Act has a racially

discriminatory purpose. To support this count, Plaintiffs lay out detailed factual

allegations in the Complaint, including the events that led to widespread “racial

justice protests” in Florida in the summer of 2020, ECF No. 1 ¶¶ 43–54, the

Governor’s response to the protests in the form of proposed legislation, id. ¶¶ 55–

66, various statements the Governor made considering the proposed legislation, id.

¶¶ 56–60, and the allegedly unusual process leading up to the consideration and

passage of the Act, id. ¶¶ 113–20. And while some of the factual allegations may

seem unrelated to Count I, such as the text of each section of the Act, they are

nonetheless helpful to understand the basis for Count I. Similarly, Count II relies on

the same allegations to support Plaintiffs’ claim that the Act in its entirety violates

the Equal Protection Clause because it targets racial justice advocacy.

As to Count III, Plaintiffs allege that the Act as a whole violates the First

Amendment to the U.S. Constitution because it constitutes content and viewpoint-

based discrimination. To support this count, Plaintiffs identify key provisions of the

Act in the Complaint. ECF No. 1 ¶¶ 67–99. Plaintiffs also allege the background and

history of the events leading up to the passage of the Act, which provides context.

While these allegations may not, in and of themselves, support Plaintiffs’ argument

that the Act amounts to unconstitutional content- and viewpoint-based

discrimination, this Court does not find that incorporating these background facts in

the count amounts to shotgun pleading. Additionally, Count III alleges that certain

sections of the Act are unconstitutionally overbroad. Indeed, Plaintiffs specifically

identify the sections of the Act that they allege are overbroad. Id. ¶¶ 153–59. And

while only a few sections are alleged to be overbroad, Plaintiffs’ incorporation of

other allegations is not improper because, in the event this Court finds the certain

sections to be overbroad, it will have to determine whether the sections are severable.

Finally, Count IV also gives adequate notice to Defendants of the claim

asserted against them. This count alleges that sections 15 and 2 are impermissibly

vague in violation of the Fourteenth Amendment’s Due Process Clause. As it relates

to section 15, Plaintiffs allege that the amended definitions for “riot” and other terms

are unconstitutionally vague. The term “riot” is then incorporated in multiple

sections of the Act, see, e.g., sections 3, 4, 5, 6, 7, 9, 12, 13, 18, & 19, arguably

making these sections vague as well. And while Plaintiffs could have limited the

factual allegations incorporated in Count IV, they need not do so to avoid dismissal

for shotgun pleading. The question is not whether Plaintiffs’ Complaint is perfect or

a model of clarity; rather, it is whether the Complaint puts the Defendants on notice

of the allegations against them. In this case, it does.

Sheriff Williams also argues that the Complaint is improper because it

contains legal arguments accompanied by citations to law. While some courts have

held that including “lengthy legal arguments, case citations, and quotations from

treatises” improper in a complaint, Chevy Chase Bank, F.S.B. v. Carrington, No.

6:09-cv-2132-Orl-31GJK, 2010 WL 745771, at *4 (M.D. Fla. Mar. 1, 2010), this

Court does not find that Plaintiffs’ few quotations from case law and case citations

transforms an otherwise permissible complaint to an impermissible shotgun

pleading. Indeed, the quotations and citations help this Court and Defendants to

understand Plaintiffs’ allegations and the theories brought under each count.21

B

In Count I, Plaintiffs allege that the Act was enacted, at least in part, with the

purpose of discriminating against Black-led organizations and Black protesters in

violation of United States Constitution. ECF No. 1 ¶ 127. Plaintiffs concede, and

Defendants agree, that the law is neutral on its face.

A facially neutral law may nonetheless violate the Equal Protection Clause if

Plaintiffs can establish “that the State’s ‘decision or act had a discriminatory purpose

and effect.’ ” GBM, 992 F.3d at 1321. The discriminatory purpose need not be the

“ ‘dominant’ or ‘primary’ one;” rather it only needs to be a motivating factor because

“[r]arely can it be said that a legislature or an administrative body operating under a

broad mandate made a decision motivated by a single concern.” Vill. of Arlington

21 Sheriff Williams also takes issue with Plaintiffs’ citations to multiple media articles. It

is unclear to this Court whether Sheriff Williams is arguing that Plaintiffs’ inclusion of citations

to articles transforms the Complaint into a shotgun pleading. If so, Sheriff Williams has failed to

provide any legal authority for his argument, nor has he argued that the inclusion of these articles

confuses him or fails to give him adequate notice of the claims against him.

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977).22 “Determining

whether invidious discriminatory purpose was a motivating factor demands a

sensitive inquiry into such circumstantial and direct evidence of intent as may be

available.” Id. at 266. “Once discriminatory intent and effect are established, the

second prong provides that ‘the burden shifts to the law’s defenders to demonstrate

that the law would have been enacted without this [racial discriminatory] factor.’ ”

GBM, 992 F.3d at 1321 (citation omitted).

The Eleventh Circuit, relying on Arlington Heights, has provided certain

factors that help determine whether Plaintiffs have alleged a viable Equal Protection

claim. The factors are “(1) the impact of the challenged law; (2) the historical

background; (3) the specific sequence of events leading up to it passage; (4)

procedural and substantive departure; . . . (5) the contemporary statements and

actions of key legislators[;] . . . (6) the foreseeability of the disparate impact; (7)

knowledge of that impact, [sic] and (8) the availability of less discriminatory

alternatives.” Id. at 1321–22. The “factors require a fact intensive examination of

the record,” GBM, 992 F.3d at 1322 n.33, and therefore such a claim does not lend

itself to dismissal in the pleading stages where the record is not fully developed.

22 Defendants rely on Arlington Heights to assert that “plaintiff must establish that

discrimination was a substantial and motivating factor in the adoption of the law.” ECF No. 38 at

18 (emphasis added). The term “substantial factor” appears nowhere in the decision, and indeed

goes against Arlington Heights’ requirement that the unlawful purpose be a “motivating factor”

that need not be a dominant or a primary factor.

Nonetheless, Defendants have raised the issue in their motions and this Court

must, therefore, review the allegations in the Complaint, accept them as true, view

them in the light most favorable to Plaintiffs, and determine whether the Complaint

supports Plaintiffs’ assertion that the Act has a discriminatory purpose and effect.

Here, Count I avoids dismissal because the allegations in the Complaint are

sufficient to satisfy the factors enumerated by the Eleventh Circuit and because

Defendants have not attempted to argue that “the law would have been enacted

without this [racial discriminatory] factor.” Id. at 1321.

The Complaint alleges that the Act will disproportionately impact Black

protestors and that the impact is foreseeable and known. For example, the Complaint

alleges that there is racially discriminatory enforcement of criminal laws in Florida.

ECF No. 1 ¶¶ 65–66. The Complaint further alleges that during the racial justice

protests in 2020, law enforcement officers discriminatorily arrested or threatened to

arrest members of Black-led groups and their allies while allowing people opposing

racial justice reforms to protest without intervention. Id. ¶ 64. The Complaint also

alleges that the impact was foreseeable and known based on the concerns raised by

the opponents of the bill, the warning by American Civil Liberties Union of Florida,

the testimony of citizens who opposed the Act, the concerns raised by Ranking

Member Michael Grieco, and Representative Marie Woodson’s warning about the

potential for disparate impact on Black and Brown communities. Id. ¶¶ 101–06.

Moreover, the Complaint alleges that despite these concerns, the legislature did not

conduct a study of the law’s racial impact. Id. ¶ 107.

The historical background of the Act alleged in the Complaint also supports

Plaintiffs’ assertion that the Act has a discriminatory purpose. The Complaint alleges

that following the racial justice protests in Florida and nationwide in the summer of

2020, Governor DeSantis and other proponents of the Act opposed the

demonstrations advocating for an end to police violence against Black people. Id.

¶ 55. In September, the Governor proposed a legislation, the “Combatting Violence,

Disorder, and Looting, and Law Enforcement Protection Act,” which ultimately led

to HB1. Id. ¶ 56. The Complaint highlights numerous statements made by Governor

DeSantis when announcing the proposed legislation, and soon after on the Tucker

Carlson Show. Id. ¶¶ 57–60. The Complaint further alleges that the earliest

proponents of the bill, Senate President-Designate Wilton Simpson and House

Speaker-Designate Chris Sprowls, characterized the Act as a direct response to the

Black-led protests advocating for racial justice and police reform that occurred

throughout the summer of 2020. Id. ¶ 61. These allegations, when viewed in light

most favorable to Plaintiffs, support an inference that the Act has an unlawful

racially discriminatory purpose.

The Complaint also alleges that there were substantive and procedural

departures in HB1’s passage, including the legislature’s rushed timeline for

consideration, curtailment of public comment, refusal to study its discriminatory

impact, bypassing multiple Senate committees, and revision to give it an unusual

immediate effect. Id. ¶¶ 107, 113–19.

Finally, the Complaint alleges that there are less discriminatory alternatives,

in the form of preexisting law that already criminalizes riots and unlawful

assemblies, and other acts criminalized by HB1. Id. ¶¶ 108–12.

All of these allegations when viewed in light most favorable to Plaintiffs

support the assertion that HB1 has a discriminatory purpose and effect. Defendants,

however, contend that Plaintiffs have “failed to allege facts sufficient to establish

discriminatory intent or impact.” ECF No. 38 at 19. To support their assertion,

Defendants raise multiple arguments, none of which this Court finds persuasive.

First, Defendants argue that the Complaint includes allegations pertaining

only to the Governor’s statements and is devoid of any such allegations on the part

of the legislature. Id. at 19. This assertion is inaccurate. ECF No. 1 ¶ 61, 106. Even

assuming that the Complaint only contained the Governor’s statements, Defendants

ignore the fact that the Complaint alleges that the Governor proposed legislation that

ultimately led to HB1. Id. ¶ 56. As such, the Governor’s statements, coming from

the official who allegedly played a substantial role in the promotion and

promulgation of HB1, are highly relevant to establish an inference of discriminatory

purpose. Here, the Governor allegedly proposed legislation with the purpose of

discriminating against Black protestors, which the legislature then enacted in the

form of HB1. At this stage in the litigation, such allegations are sufficient. Tracy P.

v. Sarasota Cnty., No. 8:05-cv-927-T-27EAJ, 2007 WL 9723801, at *6 (M.D. Fla.

Sept. 5, 2007) (citing Hallmark Devs. v. Fulton Cnty., Ga., 466 F.3d 1276, 1284

(11th Cir. 2006)) (“Government officials are generally held to act with

discriminatory intent, regardless of their personal views, when they implement the

discriminatory desires of others.”).

Second, Defendants assert that the “unusual events” highlighted by Plaintiffs

are not so problematic as to establish discriminatory intent. ECF No. 38 at 20. To

support their assertion, Defendants provide various justification for the “unusual

events.” ECF No. 38 at 20. However, such arguments are improper in a motion to

dismiss. Defendants’ assertion invites this Court to improperly weigh the evidence

and look outside the four corners of the Complaint, which this Court cannot do at

this juncture.

Finally, Defendants contend that Plaintiffs have not established

discriminatory impact. Id. at 20–21. But, as discussed above, Plaintiffs have

sufficiently alleged discriminatory impact. See also City of S. Miami v. DeSantis,

424 F. Supp. 3d 1309, 1344 (S.D. Fla. 2019) (denying motion to dismiss Equal

Protection claim where complaint “sets forth statistics and data indicating that racial

minorities are more likely to be targeted, questioned, and detained by local law

enforcement following the implementation of” the challenged law).

For these reasons, this Court finds that Plaintiffs have established

discriminatory impact and purpose. The burden therefore shifts to Defendants to

establish “that the law would have been enacted without this [racial discriminatory]

factor.” GBM, 992 F.3d at 1321. Defendants have not attempted to carry their burden

here. As such, the Governor’s and Defendant Sheriffs’ motions as they relate to the

argument that Plaintiffs have failed to state a claim under Count I are DENIED.

C

In Count II, Plaintiffs allege that the Act “targets and burdens fundamental

speech activities on the part of those who wish to advocate on behalf of racial justice

and police reform” in violation of the Equal Protection Clause of the Fourteenth

Amendment. ECF No. 1 ¶ 140. In essence, Plaintiffs’ claim under Count II is the

same as their claim under Count III.23 Although asserting First Amendment rights

under an Equal Protection claim may seem redundant, Plaintiffs’ right to do so finds

support in Supreme Court precedent and decisions of various circuit courts. R.A.V.,

505 U.S. at 384 n.4 (noting that the Supreme “Court itself has occasionally fused the

First Amendment into the Equal Protection Clause . . . with the acknowledgment . .

23 Indeed, even Plaintiffs recognize that their First Amendment claim in Count III overlaps

with their Equal Protection claim in Count II.

. that the First Amendment underlies its analysis.”); Police Dep’t of Chi. v. Mosley,

408 U.S. 92 (1972) (invoking Equal Protection Clause in striking down an ordinance

which impinged upon the fundamental right to picket and therefore express one’s

views); Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008); Lac Vieux Desert Bank of Lake

Superior Chippewa Indians v. Mich. Gaming Control Bd., 276 F.3d 876, 879 n.1

(6th Cir. 2002); Dariano v. Morgan Hill Unified Sch. Dist., 767 F.3d 764, 779 (9th

Cir. 2014) (“Government action that suppresses protected speech in a discriminatory

manner may violate both the First Amendment and the Equal Protection Clause.”);

Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 442 (4th Cir. 2013).

Where plaintiffs allege violations of the Equal Protection Clause relating to

expressive conduct, courts “employ ‘essentially the same’ analysis as . . . a case

alleging only content or viewpoint discrimination under the First Amendment.”

Dariano, 767 F.3d at 779; see also R.A.V., 505 U.S. at 384 n.4; Barr, 538 F.3d at

575 (“[O]ur analysis of Plaintiffs-Appellants’ Equal Protection claim is essentially

the same as our analysis of Plaintiffs-Appellants’ First Amendment claim.”). As

explained infra in section III.D, Plaintiffs’ First Amendment claim survives

Defendants’ motions to dismiss. Because the analysis for Count II is essentially the

same, Plaintiffs’ Equal Protection claim also survives.24

24 In Defendants’ motions, Defendants only argue that the Act does not violate the First

Amendment and, therefore, the Equal Protection claim premised on a violation of the First

Amendment also fails. ECF No. 38 at 21–22. In their reply, Defendants raise several new

D

In Count III, Plaintiffs allege that HB1 violates the First Amendment, in part,

because it constitutes “impermissible viewpoint and content discrimination.” ECF

No. 1 ¶ 147. To be sure, Plaintiffs concede that HB1 is facially content neutral. ECF

No. 76 at 24. But that does not mean that the law is, in fact, content neutral. See Reed

v. Town of Gilbert, 576 U.S. 155, 164 (2015) (recognizing that facially neutral laws

motivated by a desire to target a specific message are not content neutral).

Defendants acknowledge as much but argue that HB1 “was not enacted with

the ‘manifest purpose’ to regulate speech related to racial justice.” ECF No. 38 at 24

(citing Turner Broad. Sys. v. F.C.C., 512 U.S. 622, 645 (1994)). They further claim

that Plaintiffs “offer no factual support for [their] sweeping allegations.” Id. at 25.

This Court cannot agree. Plaintiffs have alleged, for example, that Governor

DeSantis announced the legislative proposal leading to HB1 by criticizing racial

justice protestors. ECF No. 1 ¶¶ 56–58. That the Governor publicly promoted HB1

by denouncing people who are “anti-police” and “believe in defunding the police.”

Id. ¶ 60. And that the Governor, “Senate President-Designate Wilton Simpson, and

arguments as it relates to Count II. ECF No. 81 at 7–9. For example, Defendants argue for the first

time that Plaintiffs have failed to identify comparators. This Court will not consider these

arguments because they are raised for the first time in Defendants’ reply brief and to consider them

would be prejudicial to Plaintiffs. See Broughton v. HPA Subway, Inc., No. 11-0036-WS-N, 2011

1321728, at *1 (S.D. Ala. Apr. 5, 2011) (“District Courts, including this one, ordinarily do not

consider arguments raised for the first time on reply.”); Park City Water Auth. v. N. Fork

Apartments, L.P., No. 09-0240-WS-M, 2009 WL 4898354, at *1 n.2 (S.D. Ala. Dec. 14, 2009)

(citing cases from over 40 districts applying the rule in 2009 alone).

House Speaker-Designate Chris Sprowls . . . all characterized the Act as a direct

response to Black-led protests advocating for racial justice and police reform that

occurred throughout the summer of 2020.” Id. ¶ 61.

Whether Plaintiffs can ultimately succeed on their claim that HB1 constitutes

impermissible viewpoint and content discrimination is an issue for another day. For

now, it is enough to say that these allegations are sufficient to survive Defendants’

motions to dismiss.

E

Plaintiffs also allege in Count III that the Act is unconstitutionally overbroad

in violation of the First Amendment. And in Count IV, Plaintiffs allege that the Act

is impermissibly vague in violation of the Due Process Clause of the Fourteenth

Amendment. In their Response to Defendants’ motions, Plaintiffs however only

argue that sections 2, 14, and 15 are overbroad and sections 2 and 15 are vague. To

the extent Plaintiffs maintain that the remainder of the sections are overbroad or

vague, this Court finds that Plaintiffs have abandoned the issue by failing to brief it

in in their response. Mamon v. Midland Funding, LLC, No. 1:13-CV-02301-AT-

GGB, 2013 WL 12382685, at *4 (N.D. Ga. Nov. 14, 2013) (“In this circuit, a party’s

failure to brief and argue an issue before the district court is grounds for declaring it

abandoned.”). In addition, given Plaintiffs’ lack of standing with respect to section

14 of the Act, this Court will limit its analysis to sections 2 and 15.

The question, then, is whether Plaintiffs have plausibly alleged that sections

2 and 15 are unconstitutionally overbroad or vague. As it relates to section 15, this

Court takes the issue of whether it is overbroad or vague under advisement because

Plaintiffs have raised the issue in their motion for preliminary injunction. ECF Nos.

64 & 65. As it relates to section 2, “it is enough at the pleading stage for the plaintiff

to allege sufficient factual material to allow the Court to reasonably infer that the

contested law is unconstitutionally vague.” Fla. Action Comm., Inc. v. Seminole

Cnty., 212 F. Supp. 3d 1213, 1224 (M.D. Fla. 2016) (citing Iqbal, 556 U.S. at 678).

“In short, a vagueness claim lies where those who enforce the law or those who are

subject to its enforcement ‘must necessarily guess at its meaning and differ as to its

application.’ ” Id. (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).

Having reviewed the factual allegations in the complaint, the challenged provision

at issue, and the parties’ arguments, this Court finds that Plaintiffs have adequately

alleged a vagueness claim that allows this Court to reasonably infer that section 2 is

vague in the way Plaintiffs contend—that the “amendment’s language is broad

enough to criminalize standing on the street and hindering any traffic, even

temporarily,” and “will make it easier for law enforcement to use their discretion to

arrest and ticket peaceful protesters who temporarily block a street.” See

Wollschlaeger, 848 F.3d at 1320 (Marcus, J.) (noting that a law is vague if it “fails

to provide people of ordinary intelligence a reasonable opportunity to understand

what conduct it prohibits” and “authorizes or even encourages arbitrary and

discriminatory enforcement”).

As to Plaintiffs’ claim that section 2 is overbroad, this Court recognizes that

the statute it amends—section 316.2045—has not withstood constitutional

challenges in the past. See Bischoff v. Florida, 242 F. Supp. 2d 1226 (M.D. Fla.

2003). The Florida Legislature appears to have tried to fix the problems highlighted

in Bischoff with the amendments passed in section 2 of the Act. Nonetheless, this

Court finds Plaintiffs have plausibly alleged that the amended version of section

316.2045 continues to “sweep unnecessarily broadly and thereby invade” protected

speech, and thus, is arguably overbroad. Bischoff, 242 F. Supp. 2d at 1245 (quoting

NAACP v. Alabama, 357 U.S. 449 (1958)).25 However, this is certainly not the end

of the matter, and Defendants may further develop their arguments as to this claim

at the summary-judgment stage.

For these reasons, the Governor’s and Defendant Sheriffs’ motions as they

relate to Count III’s overbreadth claim and Count IV are DENIED in part and

otherwise taken under advisement.

For the foregoing reasons,

25 In her reply, Attorney General Moody inexplicably asserts that Plaintiffs have abandoned

their Due Process Clams by failing to respond. ECF No. 81 at 6. Plaintiffs, however, have

responded to Attorney General Moody’s Due Process argument. ECF No. 76 at 26. Indeed,

Attorney General Moody’s reply cites to the portion of Plaintiffs’ response where Plaintiffs have

responded to her argument relating to Count IV.

IT IS ORDERED:

1. Attorney General Moody’s motion to dismiss, ECF No. 38, is GRANTED

for lack of standing. Plaintiffs’ claims against Attorney General Moody are

dismissed for lack of standing.

2. Governor DeSantis’s motion to dismiss, ECF No. 39, is GRANTED in

part and DENIED in part. Plaintiffs’ claims against the Governor are

limited to those for which Plaintiffs have standing (claims challenging

sections 15 and 16).

3. The Defendant Sheriffs’ motions, ECF Nos. 48, 49, and 50, are

GRANTED in part and DENIED in part. Plaintiffs’ claims against the

Sheriffs are limited to those for which Plaintiffs have standing and

Defendant Sheriffs are acting as “arms of the state” (claims challenging

sections 2, 15, and 16).

SO ORDERED on August 9, 2021.

s/Mark E. Walker

Chief United States District Judge