Unlawful Assembly Crimes

In 20 years of practice, I can’t remember ever representing a client charged with “unlawful assembly,” although I’ve occasionally seen charges under Chapter 870 for crimes related to affrays and riots.

Some expect these types of prosecutions to become more common after the COVID-19 (coronavirus) lockdowns as acts of civil disobedience began to increase.

On Monday, March 30, 2020, Sheriff Chad Chronister and State Attorney Andrew Warren announced that an arrest warrant had been issued for Pastor Rodney Howard-Browne for two charges:

  1. unlawful assembly; and
  2. violation of public health emergency order.

By way of background, Pastor Rodney Howard-Browne is the pastor of a megachurch in Tampa, FL, known as The River at Tampa Bay Church. The arrest warrant accuses the pastor of refusing to close its doors despite a “safer at home” order in effect in Hillsborough County, FL.

According to Sheriff Chronister, one of the two services held on Sunday, March 29, 2020, had up to 500 people in attendance. At the press conference, Sheriff Chronister said that the church even offered bus transportation for those services. A livestream of the service on YouTube showed the packed crowd of worshipers.

That same day, Pastor Howard-Browne surrendered at the jail in Hernando County and was released 40 minutes later after posting a $500 bond. Although he was allowed to immediately bond out, because of a recently created administrative order, most people will be held overnight with “no bond” (at least until a judge considers setting bond at the first appearance hearing).

Prior to getting the arrest warrant, Sheriff Chronister said that his deputies had tried to speak to the pastor on several occupations about the “dangerous environment” the church created by continuing to hold services in violation of the Safer-at-Home order in Hillsborough County, FL.

Traditionally, prosecutions for unlawful assembly raise constitutional issues related to the First Amendment as an attack on religious freedom, the right to free speech, and the right to assemble.

So what is “unlawful assembly”?

How Florida Law Prohibits “Unlawful Assembly”

Florida Statute § 870.02 is found in Title XLVI. Crimes. (Chs. 775 — 896) and in Chapter 870 related to affrays, riots, routs, and unlawful assemblies. For example, Florida Statute § 870.02 for “unlawful assemblies” provides:

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.

The crime of engaging in an unlawful assembly is charged as a misdemeanor in the second degree is punishable by up to 60 days in jail and a $500 fine.

In State v. Simpson, 347 So. 2d 414 (Fla. 1977), the Florida Supreme Court found that an information or charging document against defendants for unlawful assembly failed to properly state an offense under Fla. Stat. § 870.02 because the document did not articulate sufficient facts to establish each of the following elements:

  • an assembly of three or more persons;
  • when those persons who assembly have a common unlawful purpose to assemble in such a manner as to give rational, firm, and courageous persons in the neighborhood of the assembly a well-grounded fear of a breach of the peace.

In Smith v. State, 194 So. 3d 483 (Fla. 3rd DCA 2016), the Third District Court of Appeals found that the State of Florida failed to establish that defendant violated his probation by committing the new law violation of unlawful assembly, as the evidence established that although a group of 13 young men were assembled, an officer did not observe any illegal activities, guns, or menacing conduct.

“No Bond” Provisions on Public Health Violations in Florida

Why is there a “no bond” provision on a second degree misdemeanor? The “no bond” hold was created through an administrative order. For example, under Administrative Order S-2020-021 enacted in Hillsborough County on March 26, 2020:

3. Public Health Violations – Any person who violates any rule adopted under section 381.00315, Florida Statutes, any isolation or quarantine, or any requirement adopted by the Department of Health in accordance with a declared public health emergency, commits a misdemeanor of the second degree.

Due to the danger to the public health for such a violation, the bond amount shall be set at “no bond.” See Varholy v. Sweat, 15 So. 2d 267 (Fla. 1943) (“To grant release on bail to persons isolated and detained on a quarantine order because they have a contagious disease which makes them dangerous to others, or to the public in general, would render quarantine laws and regulations nugatory and of no avail.”).

This provision does not preclude the judge presiding at first appearance hearings from modifying the “no bond” status if appropriate.

Attorney on Unlawful Assembly Crimes in Florida

As cases of COVID-19 are expected to increase in the coming weeks, those who ignore the warnings might get arrested for either unlawful assembly or violating a public health emergency order.

If businesses refuse to comply, entire buildings might be ordered to close temporarily. At Sammis Law Firm, we can help you or your business understand how to comply with the orders.

We can also represent you if you are under investigation for or charged with a crime related to public health violations or unlawful assembly in Florida.

Call 813-250-0500.

This article was last updated on Monday, March 30, 2020.