“Enticing The Crowd With Music”: Miami Police Charge Rapper With Rioting Offenses

jonathanturley

3 years ago

There was rioting in Miami Beach over the last week as spring breakers vandalized property, blocked streets, and attacked police. At least five officers were injured. One of those charged was Javon Washington, 30, faces an array of charges due to his role in playing music and encouraging defiance of the police. I have serious reservations about some of those charges, including resisting arrest without violence (which I have criticized in the past as dangerously ill-defined as a criminal provision).

On the second night of the 8 pm curfew, police confronted hundreds of people partying in the street in South Beach. There were clearly legitimate arrests on that night as individuals destroyed property and assaulted police.

However, Washington’s charges seemed based on his playing music at the scene. The charging papers state that he was “observed playing music from a speaker, enticing those around to engage in unruly behavior.” He is accused of “enticing people to wreck vehicles” and “causing subjects to make obscene gestures toward officers and taunt officers.”

There appears ample evidence that he was breaching the peace, and violating the noise ordinance. Washington used what is described as a $20 speaker to work up the crowd and to resist police.

There may also be clear proof of violating the curfew, but the corner of the incident is arguably outside of the curfew area. However, I am more concerned two of the charges resisting arrest without violence and inciting a riot.

I will not repeat my past objections to the crime of resisting arrest without violence but it is written to allow even slight movement to allow for a criminal charge. Here is the provision:

843.02 Resisting officer without violence to his or her person.—Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Florida Commission on Offender Review or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Resisting or opposing without violence is incredibly vague and allows for prosecutors to stack on additional charges (which add pressure for defendants to accept plea agreements). What constitutes resisting can apparently be as little as tensing an arm or moving as restraints are being applied. That creates a dangerously fluid and subjective basis for criminal charge, even a misdemeanor.

The most serious charge is the third-degree felony which can lead to up to five years in prison. Yet, the police charges refer ambiguously to “officers observed the defendant enticing the crowd with music from speakers.”

Enticing with music? That seems a pretty dangerous foundation for a serious criminal offense of rioting. Washington made this point, though he seemed to admit to breaking he curfew in an interview where he declared “I’m sorry for breaking curfew. I didn’t start no riot. At the end, I feel like somebody had to get in trouble and since I had the speaker and the big problems were gone, they locked me up.”

I have to agree with Washington on the basis of the riot charges. If the police have evidence of Washington’s rioting, they should produce that evidence. Playing music certainly can breach the peace and gather a crowd. It is not an element to the crime of rioting in my view.

Here are the provisions:

870.01 Affrays and riots.—

(1) All persons guilty of an affray shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) All persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

870.02 Unlawful assemblies.—If three or more persons meet together to commit a breach of the peace, or to do any other unlawful act, each of them shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

870.03 Riots and routs.—If any persons unlawfully assembled demolish, pull down or destroy, or begin to demolish, pull down or destroy, any dwelling house or other building, or any ship or vessel, each of them shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Section 870.03 uses active verbs of demolishing, pulling down or destroying property — not creating circumstances that might or might not lead to rioting.

A similar issue could also be raised in the cases being prepared by the federal government over the January 6th riot in Congress. Federal prosecutors have already used lesser charges like trespass for many of those arrested though some have suggested an array of sedition charges are coming.

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