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Florida cities sue state over ‘anti-riot’ law

State lawmakers included a new provision in state law that gives the governor and Cabinet veto power over city and county budgets. A lawsuit filed today says that violates the Florida Constitution’s separation of powers clause.
Law enforcement officers take several Black Lives Matter protesters into custody during a peaceful march in September in Tallahassee.
Law enforcement officers take several Black Lives Matter protesters into custody during a peaceful march in September in Tallahassee. [ ALICIA DEVINE | AP ]
Published Nov. 16, 2021|Updated Nov. 16, 2021

TALLAHASSEE — Seven South Florida cities, as well as Tallahassee and Gainesville, filed a lawsuit in state court Tuesday challenging what they say is the executive branch’s “commandeering” of local budget authority in the so-called “anti-riot” law that passed earlier this year.

The law, HB 1, was a priority of the Republican-led Legislature and Gov. Ron DeSantis after demonstrators across Florida and the nation protested the death of George Floyd, a Black man killed by a Minneapolis police officer in 2020.

As a hammer against local governments that attempt to rein in law enforcement, lawmakers included a new provision in state law that gives the governor and Cabinet veto power over city and county budgets.

The lawsuit filed in the Second Judicial Circuit of Leon County challenges that change as a breach of the separation of powers of the Florida Constitution and suggests it could result in fiscal constraints that will cost taxpayers more money. The South Florida cities named as plaintiffs are Lauderhill, Miramar, Lake Worth Beach, North Bay Village, North Miami, North Miami Beach and Wilton Manors.

“Cities have a responsibility to allocate these services in ways that best respond to the needs of the local community, and to do that, they need authority to craft budgets that reflect community values,’’ reads a draft of the lawsuit provided exclusively to the Times/Herald Tallahassee bureau.

The cities, working with lawyers from the Southern Poverty Law Center, the Public Rights Project Justice Foundation, the Community Justice Project and the Jenner & Block law firm are asking the court to permanently invalidate the law.

A portion of the law has already been temporarily blocked by U.S. District Judge Mark Walker of Tallahassee.

In September, Walker ordered that DeSantis and three Florida sheriffs — Walt McNeil of Leon County, Mike Williams of Jacksonville and Gregory Tony of Broward County — could not enforce the state’s law against “rioting” because it “encourages arbitrary and discriminatory enforcement.”

The cities argue that now, if local officials propose to reduce the funding of the local police department, “whether such reductions are in response to economic downturn, expired one-time expenditures, community input, or any other reason” the state attorney or a commissioner can appeal the budget to the Florida Administration Commission, made up of the governor and Cabinet.

They also say that the threat of having their budgets overtaken by state officials has had a chilling effect on local officials already, leading some to refrain from cost-saving changes because it could trigger the state override.

Miramar Mayor Wayne M. Messam said that the law is “written so vaguely that no one knows how it might be invoked.”

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In Miramar, for example, the city has instituted its Voluntary Retirement Incentive Program, which offers employees who had worked a certain number of years incentives to retire earlier than planned and expects to save $11 million over five years. But because 26 police officers decided to retire early, the change will also reduce personnel costs in the law enforcement budget.

“If we buy more police cars one year and buy no police cars the next year, is that a cut in the police budget?’’ Messam asked. “Cities are operating in a lot of uncertainty.”

In Wilton Manors and Lauderhill, the pandemic led to a lot of police overtime in 2020, but those costs this year are expected to drop. The police budget has also seen fluctuations because of one-time capital expenditures, and officials fear they may also be penalized for that decline in budget as well.

The power of appropriating local tax dollars would also be given to the Administration Commission “with no guiding standards, no limitations from the state Legislature, and no accountability to the impacted local communities,’’ the lawsuit reads.

The cities accuse the governor of using the law for political gain. The lawsuit notes that although the governor acknowledged that the demonstrations for racial justice in 2020 were “largely peaceful,” he also “demonized the Floridians who stood against racial injustice and police brutality as ‘crazed lunatics’ ” and mobilized 700 Florida National Guard soldiers against protesters.

“The governor’s statements show that he intends to use this tool whenever possible to further his own agenda and to remake local law enforcement budgets as he sees fit, with little regard for local processes and input,” the lawsuit states.

Because police departments consume one of the largest shares of the local budgets, cities are forced to reduce them when faced with economic downturns. In the three largest cities in Florida —Jacksonville, Miami and Tampa —police spending accounts for 33 percent to 40 percent of the local budget, the lawsuit said.

The lawsuit cites several examples of when cities in the past have reduced their law enforcement budgets but now could trigger the governor and Cabinet assuming control of it.

For example, in 2010, when tax revenues plummeted in Panama City, the city eliminated funding for all vacant positions, including 11 positions in the police department. In Jacksonville, between the fiscal years of 2010 and 2013, 147 police officer positions were eliminated due to budget cuts, including the entire mounted police force. And in 2020, Miami was forced to cut 66 sworn police officer positions, along with over a dozen firefighters, due to a projected $30 million shortfall.

City officials warn that the law will also make it more difficult for cities to respond to constituent feedback and could prevent them from adopting new policies and practices that invest in social services and increase accountability in policing.

Former Gainesville City Commissioner Gail Johnson said the law “handcuffs cities when making everyday budget choices” and “creates fear and uncertainty over everyday local democracy and local budget decisions.”

Tallahassee City Commissioner Jacqueline “Jack” Porter predicted the law “will have a chilling effect on protest everywhere, regardless of the content of the protest.”

Mary Ellen Klas can be reached meklas@miamiherald.com and @MaryEllenKlas

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