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The Many Public Disorders of Florida’s HB1

At the end of the legislative session in Florida this past spring, Governor Ron DeSantis signed into law the now infamous HB1 bill. HB1, also called the “Combating Public Disorder Bill,” was created in direct response to the Black Lives Matter movement and the political protests for racial justice that occurred across the nation. At the press conference announcing the bill, Governor DeSantis cast those protests as violent, chaotic events, full of “disorder and tumult,” where “buildings [were] in flames.” Tellingly, though, 94% of Black Lives Matter protests were in fact peaceful. The actual “public disorder” these uprisings surfaced was less protestors behaving badly, and more the deep, pathological racism embedded in virtually every aspect of life in the United States.

HB1 consists of “a very robust package” of laws designed to suppress political protest. HB1 creates new crimes and penalties for protestors, often employing vague and overly-capacious terms and definitions that will almost certainly lead to arrests for the peaceful exercise of First Amendment rights. It provides for the arrest of people engaged in “riots,” but largely leaves it to police to interpret whether a given gathering involves a risk of “imminent danger of injury to another person or damage to property.” HB1 insulates individuals who harm or injure protestors from potential civil liability, providing civil immunities to people who use their vehicles to plow into protestors, at the same time as it creates potential civil liability for municipalities who take a more lenient approach than their city police departments towards protests.

And, “less discussed or understood,” HB1 also strips local governments of their municipal budgeting powers, and “transfer[s] that power to the governor and the Florida Cabinet.” Specifically, under HB1, “[i]f the tentative budget of any municipality contains a funding reduction to the operating budget of the law enforcement agency,” the state attorney of the relevant judicial district or a member of the city council can challenge that budget within 30 days of its publication by filing a copy of the current budget, the previous budget, and a statement of reasons for the challenge. The municipality then has five working days to file a response. After that, the Executive Office of the Governor will hold a hearing on the budget and report its recommendations to the Administration Commission, a commission comprised of the Governor and certain of his cabinet members. That state Administration Commission will then use its unfettered discretion to “amend or modify the [municipal] budget as to each separate item of the municipal law enforcement agency.” No standards are given to guide this amendment or modification of the municipal budget, and there is no mechanism in the bill for a municipality to challenge this decision once made.

By usurping municipal control over local budgets, HB1 ironically perpetuates another form of public disorder: it disorders the structural relationship between the state and local governments enshrined in the home rule provisions of the Florida Constitution (Article VIII, Section 2(b)). Florida has had a strong tradition of local self-government since its beginnings as a Spanish colony, and in 1968, Floridians gave constitutional voice to that principle when they adopted home rule into the Florida state constitution. That home rule has since been buttressed by the Municipal Home Rule Powers Act and by the people’s adoption of constitutional provisions like the prohibition on states visiting unfunded mandates on local governments.

HB1 on its face violates the public order set out in the Florida state constitution. It offends not only the home rule and unfunded mandate provisions, but also the provisions on the separation of powers, the principle of non-delegation, and the single-subject rule. The budget restrictions cut to the core of municipal powers. Local budgeting is a fundamental municipal function, and Floridians continue to want their cities to have control over such matters. According to a recent survey, 80 percent of Floridians agreed that “local governments are better connected to the community than state government and should be allowed to pass policies that reflect their community’s needs and values.”

Florida’s cities are fighting back. The city of Gainesville recently led the charge, voting to move ahead with litigation challenging HB1’s disordering of state-local government powers. The vote to proceed with the litigation took place in the very late evening, at close to 11 pm, yet numerous community members called in to voice their support for the litigation and to urge Gainesville to take a stand against this state overreach. As Gainesville City Commissioner Gail Johnson put it, “[o]ur governor is wading into the most fundamental of local powers” and “directly threatening our ability to structure our budgets in the way that best meets the needs of our community.” Florida’s cities “have every right” to invest their resources in accordance with their local values, and create police-community relationships that balance the particular needs and interests of their localities and constituents. Home rule means little if it does not mean this.

HB1, of course, is part of a broader attack that the state of Florida has been raining down on cities for years. While cities have had difficulty repelling these various state incursions, as the litigation beginning with the city of Gainesville may reveal, the massive overreach of HB1 and its direct assault on core aspects of municipal home rule may ultimately prove to be its undoing.


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