Criminalizing free speech? Group challenges Miami Beach law used to cuff people filming cops
After last year’s unruly spring break on South Beach, the Miami Beach city commission passed an ordinance that allowed for the arrest of people who “interrupt” and get too close to cops doing their job on the streets. The result: Miami Beach police, over a crowded weekend in July, arrested over a dozen people, almost all Black and in the process of video recording police officers.
Since then, nearly every one of those cases has been quietly dropped. But in one of the few remaining cases, the Florida Association of Criminal Defense Lawyers asked a court to dismiss the case against an Ohio tourist, saying the ordinance unconstitutionally punished the right to free speech.
Given the opportunity to defend the law in court, Miami Beach’s city prosecutor last week backed down — simply dropping the case.
The legal fight over the validity of the controversial ordinance isn’t over. The FACDL has now filed the same challenge in another case, that of a homeless woman arrested on the same weekend. The legal challenge is but the latest tension point involving Miami Beach’s city prosecution program, which critics say has unfairly targeted minorities and homeless people.
“Everybody is brave at a commission meeting — but the real fight happens in the courtroom,” said Alex Saiz, of the Florida Justice Center, which represents the homeless woman and is working with the FACDL. “The city can’t possibly think that this law is constitutional, that’s why they won’t stand behind this law.”
The new challenge comes in the case of Rebecca Kowalcyzk, 48. No hearing date has been set yet for the constitutional challenge. The case is set before Miami-Dade County Judge Betsy AlvarezZane.
The Miami Beach city commission, aiming to appear tough on crime, in recent months has voted to dramatically expand the city’s prosecution program, including prosecuting misdemeanor battery, criminal mischief and indecent-exposure cases.
After the raucous spring break, Miami Beach’s city commission in June passed an ordinance making it illegal to “approach or remain within 20 feet” of a Miami Beach police officer with the “intent to impede, provoke or harass” an officer engaged in lawful duties, after receiving a warning. It’s punishable by a fine of up to $500 or up to 60 days in jail.
But the ordinance didn’t gain widespread attention until after a series of rough and questionable arrests at the Royal Palm hotel on July 26. In a case that drew national attention, two New York men were arrested under the same ordinance as they video recorded police officers at the hotel.
In the aftermath, five Miami Beach police officers wound up charged with misdemeanor battery after prosecutors said they used excessive force in making arrests. The State Attorney’s Office dropped both ordinance cases against the New York men, who had also been charged with state crimes. State prosecutors will handle the municipal cases if they are accompanied by state charges.
The Miami Beach Police Department pushed to implement the ordinance in time to deal with expected crowds in town for the Rolling Loud hip-hop festival. A Herald review of 13 arrests over that weekend showed all of them were of Black people, and most were of people filming officers.
Court records show that prosecutors — state and municipal — have dropped all 13 of those ordinance cases. That includes the case of Janae Senterswanson, 23, who was arrested after cops said she refused to leave the “20-foot” zone as officers were investigating a disturbance on Ocean Drive. The case lingered for months as the Florida Justice Center, which represents people for free, signed on to represent her.
The FACDL also pitched in, filing a motion to dismiss the case, saying “there’s no way to constitutionally declare an “onthe-spot” 20-foot no-go zone in a city as crowded with tourists as Miami Beach.
“It criminalizes a substantial amount of innocent conduct,” FACDL lawyer Dan Tibbitt wrote. “The bottom line is that Americans have the right to remain within 20 feet of police officers and have the right to engage in conduct that may annoy police officers.”
And, he argued, the language of the ordinance is so vague it criminalizes free speech. “How is a citizen to know what will constitute intent to ‘harass’ a police officer rather than just lawfully disagree with them?” he wrote.
The Miami Beach City Attorney’s Office, however, did not fight for the ordinance in her case. Instead, six months after Senterswanson’s arrest, it dropped the charge last Monday. The city, in a statement, insisted it had nothing to do with the constitutional challenge.
“Although the Police Department had probable cause for the arrest of Ms. Senterswanson, after thoroughly reviewing the case it was determined that the City should not proceed with this prosecution based upon the available evidence and the totality of the circumstances,” the city said. “Nonetheless, the City remains confident in the validity of its ordinance and is prepared to defend its constitutionality against any challenge.”
The city did not explain why it took six months to decide the case was too weak to prosecute.