Unlawful assembly versus the First Amendment

“Congress shall make no law abridging the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.”

Many of those arrested in the city of Tampa during last night’s protests were charged solely with a violation of Florida Statutes section 870.02, or unlawful assembly. Unlawful assembly is defined as three or more persons meeting together to commit a breach of the peace, or to do any other unlawful act. The Florida Supreme Court upheld the constitutionality of 870.02 as it relates to the First Amendment in 1977 in State v. Simpson, 347 So. 2d 414. In doing so, the Court utilized the common law definition of “breach of the peace” to overturn the dismissal of charges against three defendants in Pinellas County.

Notably, the Court found that the law allows prosecution of those with a common unlawful purpose whose assembly caused rational, firm, and courageous persons in the neighborhood of the assembly a well-founded fear of a breach of the peace. From a practical perspective, the State would need to show that defendants arrested for unlawful assembly were acting so irrationally as to cause members of the community to fear for their safety. I doubt that the police officers who arrested the protesters could qualify as offended members of the neighborhood, so long as the defendants were not actively threatening the police or inciting others to commit violence.

The elected State Attorney, Andrew Warren, is asking voters to return him to the county’s chief prosecutor position in November. Even though there will be political pressure to convey a message of law and order, I suspect that each of these prosecutions will be quietly dismissed in the weeks to come. The Tampa Police Department and other local agencies will have to decide for themselves if arresting protesters meets their goal of winning back the trust of the community, if that goal existed in the first place.

I feel that the dissenting words of Justice Joseph Boyd in Simpson are particularly instructive: “If a group of people should congregate that is their right. If they talk among themselves their speech is protected. Even if they discuss ideas which are repugnant to the community and express violent or otherwise distasteful desires, their assembly and speech remain protected. Only when their speech goes beyond the communication of ideas and becomes a criminal act, such as the incitement of others to imminent violence or the formation of a criminal conspiracy, does it lose its protection. If the generalized expressions of those assembled become specific and threatening, or if the individuals exercise their rights of assembly and speech in an unduly loud or obtrusive manner, then the law becomes effective to prevent them. Otherwise they are within the protection of the First Amendment.” He felt that if the government could prove that the unlawful assembly was to prepare for the commission of other, more serious acts, then the government should just go ahead and charge individuals with the conspiracy to commit those acts or the acts themselves. That most of the protesters were not charged with additional offenses tells you all you need to know.

Non-emergency Florida court hearings suspended until June due to COVID-19

Chief Justice Canady today extended the suspension of non-essential court proceedings through the close of business on May 29 by administrative order AOSC20-23. As Florida deals with the public health emergency created by COVID-19, all civil and criminal trials, along with grand jury proceedings, are canceled. The only criminal court proceedings still happening are those deemed critical, such as first appearance and bond hearings.

Each local jurisdiction has been given the power to work within these constraints to ensure that the rights of criminal defendants are preserved, as long as public safety remains a priority. For example, Hillsborough County has shifted to video. Technical felony violations of probation (Judge Nazaretian) are being held on Monday, Wednesday, and Friday from 9:00-10:50. On Tuesday and Thursday, misdemeanor video arraignments (Judge Catlin) are scheduled from 9:00-10:00, while Judge Samantha Ward is taking negotiated changes of plea for incarcerated defendants from 10:00-11:00. Bond motions for incarcerated defendants where formal charges have not been filed yet are occurring each weekday from 11:00-12:00, while first appearances have been shifted to 1:00-3:00. On the weekends, the rotating duty judge will handle first appearances from 11:00-1:00.

Each individual judge is creating a framework for bond hearings that works best for the courthouse stakeholders (prosecution, defense, Clerk of the Court, Sheriff’s Office) in their division. Although hearing time will be limited, there will be a way to get into court (at least remotely). The more information an attorney can cohesively present to the Court, the better the chance for release from custody.

Today’s order brings clarity to the reality that court as we know it will not return before the summer, if then. My first contested hearing (on a domestic violence injunction petition) by Zoom was on Thursday. Although my client and I ended up winning the hearing, you can see the potential for abuse if a judge is not patient or technologically savvy enough to adapt to the new normal.

COVID-19 and court operations

As many people know, the court system is mostly shuttered for the next month as the nation responds to the growing threat from the coronavirus. Only essential proceedings are going forward, such as first appearances in criminal cases and injunctions for protection from violence. A typical question from families of incarcerated defendants is “can my loved one be released?” There is no standard response. Some judges locally have been scheduling change of plea dockets where agreements resulting in the release of an inmate can be moved up in the calendar. Other bond reduction matters are being evaluated on an individual basis. In my opinion, the pandemic alone will not be sufficient to gain the release of an inmate. The more information, carefully tailored to the case at hand, presented to the Court, the better the chance of an extraordinary result. Feel free to reach out to me on my cell phone, 813.541.9504, if I can be of assistance.

The police took my money and car-can I get it back?

Being arrested for felony charges is shocking enough, but most people are confused by the police department's decision to seize a vehicle involved in the offense or money found on the arrestee.  The Florida Contraband Forfeiture Act provides law enforcement a civil court, as opposed to criminal court, tool to punish felony offenders.  The process allowed local Florida police agencies to collect more than $68 million over one recent five year period.

Our state legislature has been dominated by conservative lawmakers recently, and everybody knows that "tough on crime" politics plays better to the voting public than the alternative.  But a majority of those conservatives also frowned on the government's increasing ability to take away a citizen's property rights.  The 2016 revision to the Contraband Forfeiture Act represents an important shift to the benefit of many of my clients.

The seizing agency is now required to pay a $1000 filing fee and post a $1500 bond before beginning the process of permanently retaining any contraband article.  In practice, it doesn't make fiscal sense for the agency to try to keep cash amounts less than the combined $2500.  Most police or sheriff's departments will authorize their legal counsel to engage in settlement discussions with the arrestee, also called a claimant.  I have also found that the police will generally return vehicles to claimants who, even if they are not considered "innocent owners," do not have a significant amount of equity in the car.

The amendments also increased the burden on the police to prove their case in civl court so that it matches the standard in criminal court, beyond a reasonable doubt.  If the law enforcement agency loses, they are on the hook for a defendant's attorney's fees and costs if the Court finds that it acted in bad faith or grossly abused its discretion.

The recent changes to the FCFA are a welcome reformation of the civil asset forfeiture process.  They more closely reflect the presumption of innocence that is a cornerstone of our republic.  Feel free to contact Board Certified Criminal Trial Attorney Daniel Fischetti for more information.

Sunset Music Festival 2017

As tens of thousands of electronic dance music fans converge on Raymond James Stadium’s north parking lot in Tampa to celebrate Memorial Day weekend, concertgoers should be prepared for an enormous law enforcement presence both inside and outside the gates.  Although not all EDM aficionados dabble in controlled substances, the culture’s reputation combined with the overdose deaths of two young attendees last year forces the government to respond accordingly for 2017.  Anticipate drug sniffing dogs, surveillance cameras, hundreds of police and security guards, and searches of your backpack and person upon entry.

If you or a friend are going, the obvious advice is to be smart and stay safe.  That being said, I have represented multiple persons who have been arrested at Sunset Music Festival in previous years.  Most of them have been college-aged kids who made foolish decisions and ended up spending the night in jail instead of at SMF.  Here are some tips if you decide to go:

Although the city of Tampa does allow for the issuance of a civil citation for possession of marijuana, most people will not qualify and will be arrested instead.  Why?  The program’s guidelines state that, among other things, the suspect must qualify to be “released on recognizance.”  It usually means that you need to be a local resident.  So, if you live in Sarasota, Miami, Gainesville, Orlando, or Jacksonville you’re going to jail.

The program only applies to amounts less than twenty grams of weed, or about three quarters of an ounce.  It can be used only for simple possession, not delivery or possession with intent to sell.  Sharing with friends, having multiple baggies, or possession of drug paraphernalia (like scales), will cause the investigators to arrest you rather than fine you.  But if you’re caught with marijuana, the most compelling reason why the police will handcuff you and transport you to Orient Road Jail is so they can search you for additional contraband.

The most commonly discovered controlled substances at Sunset Music Festival are MDMA (including the derivatives nicknamed molly or ecstasy) and LSD.  Possession of these drugs is a third degree felony punishable by up to five years in prison.  Selling MDMA increases the penalty to a maximum of fifteen years in prison, while possession of more than ten grams becomes the crime of trafficking in Phenethylamines; a conviction brings with it a mandatory term of three years in prison.  Bail bond amounts start at $2000 per charge, and trafficking defendants are held without bond until they see a judge at first appearance either the next day (if you’re booked before midnight) or two days later.  Traditional bond amounts for trafficking in MDMA begin at $50,000, and you may be required to prove the source of the money used to pay the bond (commonly referred to as a Nebbia hold).

In my experience, the biggest danger to SMF17 attendees are the undercover police officers from the Tampa Police Department, Hillsborough County Sheriff’s Office, and other local agencies.  They have three years of experience targeting this specific festival.  They may not look like “typical cops,” and often sport beards or heavy tattoos.  If you are in a group of people and they smell marijuana, they have the legal ability to search each and every person in the group and their possessions.

If you are arrested, do not give a statement to the police.  Do not admit anything.  They will not cut you a break.  If your friend is arrested, do not interfere-you can be charged with obstructing the investigation.  The best thing you can do is to call a friend or family member who is not at Sunset Music Festival to begin the process of getting them out of jail.  For the college-aged crowd, do not be afraid to get the parents involved.  Many bail bond companies require security, promissory notes, and a percentage of the total bond (known as the premium) up front to get someone out of jail.  Don’t let your friend sit in jail any longer than necessary.

A local and aggressive criminal defense attorney should be contacted as soon as possible to facilitate the jail release process and discuss the options going forward.  It’s not all doom and gloom; I have been able to get entire cases dismissed and records expunged for clients arrested at SMF in Tampa.  As a Florida Bar board certified criminal trial lawyer I have the experience, skill, and reputation to properly counsel you or those close to you on the next step for prosecutions in the Thirteenth Judicial Circuit.  Feel free to contact me directly on my cell phone, 813.541.9504, for assistance over the holiday weekend.