Should Law Enforcement Impersonators Be Dealt With Strongly to Promote Governmental Interest ?
In Rodriguez v. State, 906 So. 2d 1082, (Fla. 3d DCA Jan. 21, 2004), the Third District held that section 843.085 was unconstitutionally overbroad.
In that case, police observed the appellant, Rodriguez, driving recklessly and erratically on a motorcycle in traffic.
The officer in pursuit of Rodriguez attempted to stop him and noticed that Rodriguez was wearing a black shirt with the word "POLICE" written on the front and the back.
Once the officer activated his siren and lights, Rodriguez looked back at the officer, pointed at his shirt, mouthed the word "police," and kept driving.
When the officer attempted to pass Rodriguez, Rodriguez again mouthed the word "police" and pointed to his shirt.
Rodriguez later admitted that he thought the officer would not pull him over if he convinced the officer that he was a member of the police department.
After an extended chase, Rodriguez was ultimately apprehended and charged with, among other things, violating section 843.085.
The jury convicted Rodriguez of violating the statute.
On appeal, Rodriguez argued that section 843.085 was unconstitutional because the statute was impermissibly content-based and overbroad and proscribed conduct protected by the Florida and Federal Constitutions.
The Third District held that section 843.085 was overbroad, first noting that the First Amendment afforded protection to symbolic conduct or expressive conduct as well as to actual speech.
The court found that section 843.085(1) was content-based "in that it focuses only on the content of the speech or expression and the direct impact that it has on a viewer."
Because the statute was content-based, the Third District stated that it was subject to strict judicial scrutiny and must be narrowly tailored to promote a compelling governmental interest.
The Third District concluded that section 843.085(1) was unconstitutionally overbroad because it banned the wearing of any indicia of law enforcement authority regardless of the intent of the wearer and because it may be applied to conduct that is protected by the First Amendment.
The Court reasoned that without a specific intent requirement, the statute did not distinguish between the innocent wearing or displaying of law enforcement indicia from that designed to deceive the public into believing that such display was official.
Thus, there was the potential of penalizing purely innocent conduct.
"While there is certainly a legitimate interest in ensuring that the public not be deceived by law enforcement impersonators, we conclude that this statute must be narrowly tailored with an intent requirement so as not to run afoul of the rights guaranteed by the First Amendment.