The last few months have seen large protests in response to the presidential
election and other events. In response, several state legislatures are
now considering bills to prohibit obstructing traffic during protests.
One of those bills has been introduced in Florida by Senator George Gainer,
a lawmaker from Panama City.
Gainer’s bill would make it a crime to obstruct traffic during a
protest or demonstration unless the protestor has a permit. More importantly,
it would immunize people in motor vehicles from civil liability. The bill
states that a vehicle operator “who unintentionally causes injury
or death to a person who obstructs or interferes with the regular flow
of vehicular traffic” is not responsible for “such injury
Furthermore, the bill would put the burden of proof in court on the injured
person or the dead person’s estate. That is, all a vehicle operator
would have to do is claim a person was blocking traffic during a protest
or demonstration. Once they do that, the injured person’s representative
“has the burden of proving that he or she did not violate”
the provisions of the law, or that “the injury or death was not
The second prong of this burden of proof requires the person struck to
prove a negative; that is, that the driver
did not do something
unintentionally. To look at it another way, the person struck, or his or
her representative, would have to prove that a driver injured or killed
them on purpose. Common sense tells us this would be extraordinarily difficult.
In most cases, all an otherwise liable driver would have to say is, “I
just made a mistake.” That would allow them to get away scot free.
Whatever one’s views may be about protests, party politics, and such
things, this bill could have grave implications in injury or death cases
involving pedestrians. Resourceful defense lawyers will no doubt try to
apply this law to “regular” accident scenarios to allow negligent
drivers to escape liability.
This is not nearly as crazy as it sounds. The bill does not limit protest
or demonstration to mass gatherings. Thus, the bill could be construed
to mean a person protesting on their own could be accused of violating
it. It also doesn’t define the terms “protest or demonstration,”
leaving room for debate about when a person is engaged in those activities.
It’s easy to see how the lines could get blurry. For example, it’s
likely one would be considered a protester when they carry a picket sign
and speak through a bullhorn. But if one is just wearing a T-shirt which
states a protest message, are they also a protester as they cross the
street? Are bicycle riders who participate in a “Ride of Silence”
to honor a fellow cyclist killed by a motorist going to be considered
protesters or demonstrators, even when they ride the same route they follow
every weekend? The text of the proposed law provides no guidance on these
Serious unintended consequences could follow if this bill becomes law.
At the very least, definitions should be added to it so it doesn’t
end up taking away the rights of everyday collision victims.