Martial Law in Florida

Could martial law be used in Florida in response to the outbreak of Coronavirus (COVID-19) or some other emergency? No, probably not. Keep in mind that enforcing curfews, quarantines, travel limits, closing buildings or requiring the public to “shelter in place” would not necessarily require any form of martial law.

For this reason, the concept of “martial law” is not particularly helpful. The law already provides for extreme ways for the local, state, and federal governments to take more control. Those other options make it less likely that declaring “martial law” would ever become necessary.

Senator Marco Rubio recently said that there is no way the government will implement martial law to deal with the coronavirus pandemic, and rumors to the contrary are extremely dangerous. He sent the following message on Twitter:

“Please stop spreading stupid rumors about marshall law. COMPLETELY FALSE. We will continue to see closings & restrictions on hours of non-essential businesses in certain cities & states. But that is NOT marshall law.”

The tweet received considerable attention because it misspelled the word “martial” as “marshall,” which added some much-needed levity to the conversation.

Nevertheless, if the number of deaths from coronavirus (COVID-19) suddenly increased or if people began to riot, the authorities might be tempted to use drastic means of controlling the movement of people and supplies in Florida temporarily. Short of declaring martial law, the government at the local, county, and state level already have ways to gain more control.

For instance, a recently issued administrative order from the Supreme Court of Florida, No. AOSC20-15, entitled “IN RE: COVID-19 ESSENTIAL AND CRITICAL TRIAL COURT PROCEEDINGS,” contemplates circuit and county courts performing “mission-critical proceedings” related to the state of emergency or the public health emergency.

Mission-critical proceedings include:

• Habeas corpus petitions (§§381.00315( 4) and 381.0012, Fla. Stat.);
• Violation of quarantine or isolation orders (§381.00315(l)(c)4., Fla. Stat.);
• Violation of orders to limit travel (§252.36(5), Fla. Stat.);
• Violations of orders to close public or private buildings (§381.00315( 4), Fla. Stat.);
• Mandatory vaccinations (§381.00315(l)(c)4., Fla. Stat.); and
• Unlawful assembly (§ 870.02, Fla. Stat.).

Additionally, the Florida Legislature has already enacted the “State Emergency Management Act” under Florida Statute Sections 252.31-252.60.

Although according to Section 252.33, the act does not “[l]imit, modify, or abridge the authority of the Governor [of Florida] to proclaim martial law or exercise any other powers vested in the Governor [of Florida] under the constitution, statutes, or common law of this state independent of, or in conjunction with, any provisions of ss. 252.31-252.60.”

So many of the existing systems already have plans to handle these mission-critical proceedings and manage a state of emergency or public health crisis.

For this reason, it seems highly unlikely that the Governor in Florida would need to resort to declaring martial law on a temporary basis.

The Definition of “Martial Law” in Florida

So what is martial law? In essence, martial law replaces aspects of state or federal law with temporary military authority in a time of crisis.

Although declaring martial law is rare, several instances have historically arisen during times of war, natural disasters, or civil unrest.

The United States Supreme Court in Duncan v. Kahanamoku, 327 U.S. 304, 66 S. Ct. 606, 90 L. Ed. 688 (1946) noted the lack of a precise definition of the term “martial law.”

Although the opinion notes that one court “thought that the term ‘martial law’….denotes among other things the establishment of a ‘total military government’ completely displacing or subordinating the regular courts, that the decision of the executive as to what the public safety requires must be sustained so long as that decision is based on reasonable grounds and that such reasonable grounds did exist.”

The term also recognizes the need to suspend certain civil liberties, including the right to:

• Freedom of association and movement; and
• Freedom from unreasonable searches and seizures.

Martial law might also involve the suspension of the writ of habeas corpus which allows a person who is unlawfully incarcerated to gain freedom through a court proceeding.

At the federal level, martial law can be declared by the President of the United States or by Congress. Throughout our history, Congress has never solely imposed martial law.

At the state level, the governor of a state might declare martial law if permitted by the state’s constitution.

Florida’s Constitution on Martial Law

Does Florida’s Constitution allow for martial law? Yes, it does. For example, SECTION 1. of the Florida Constitution provides:

The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivision or any municipality…..

The legislature may, by general law, authorize a military court-martial to be conducted by military judges of the Florida National Guard, with direct appeal of a decision to the District Court of Appeal, First District.

SECTION 15, for the prosecution of crime and offenses committed by juveniles or children under the age of 18, the Florida Constitution provides:

(a) No person shall be tried for capital crime without presentment or indictment by a grand jury, or for other felony without such presentment or indictment or an information under oath filed by the prosecuting officer of the court, except persons on active duty in the militia when tried by courts martial…..

SECTION 18 of Florida’s Constitution provides for the following type of “administrative penalties”:

No administrative agency, except the Department of Military Affairs in an appropriately convened court-martial action as provided by law, shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law.

What is Florida’s Department of Military Affairs?

The Florida Department of Military Affairs is headquartered at St. Francis Barracks in St. Augustine, FL. The department is administered by the state Adjutant General who is appointed by the Governor of Florida and falls under the command of the Governor of Florida.

Florida’s Adjutant General is responsible for the training and operations of the Florida National Guard (FLNG). The FLNG is composed of more than 12,000 Soldiers and Airmen who might be used to protect their communities during natural disasters or civil unrest.

The current Adjutant General in Florida is Major General James O. Eifert. Major Eifert serves as the Governor’s senior military advisor and director of the Florida Department of Military Affairs and is responsible for the overall management, readiness, and mobilization of both U.S. Army and U.S. Air Force elements of the Florida National Guard.

Pursuant to Florida Statute Section 250.35, the rules that govern a court-martial action by the Florida National Guard is the Uniform Code of Military Justice (UCMJ), 10 U.S.C. ss. 801 et seq., and the Manual for Courts-Martial (2012 Edition), except as otherwise provided.

Florida law recognizes three kinds of court-martial proceedings including general courts-martial, special courts-martial, or summary courts-martial.

Under Section 250.35(4), a general court-martial in the Florida National Guard may be convened by order of:

• the President of the United States
• the Governor of Florida
• the Adjutant General

When was the last time “martial law” was formally declared in the United States?

One of the last times martial law was declared by a Governor in the United States was in May of 1961, nearly 60 years ago. During that month, the Governor of Alabama, John Patterson, declared martial law to address what he called “outside agitators coming into [the state] to violate our laws and customs.”

Other examples include during the Battle of New Orleans in 1814, the Great Chicago Fire of 1871, the San Francisco earthquake of 1906, the Omaha race riot of 1919, the 1920 Lexington riots, and in Hawaii after the Japanese attack on Pearl Harbor in 1941.

Additional Resources

John Warner National Defense Authorization Act for Fiscal Year 2007 – In the United States, all 50 governors have already declared emergencies in their states which allows them to active their Air and Army National Guard to battle the global pandemic. Learn more about why the John Warner National Defense Authorization Act for Fiscal Year 2007 gives the President of the United States the authority to take command of National Guard units for one year without the approval of the state governor.

Executive Order 2020-02 from the City of Tampa Mayor Jane Castor – Read an executive order dated March 16, 2020 that remains in effect for seven (7) days unless suspended by subsequent executive order or extended as necessary in seven (7) day increments by additional orders issued by Mayor Jane Castor.

This article was last updated on Friday, May 22, 2020.