Anti-Protest Bill May Spell Trouble for Pedestrian Cases

Anti-Protest Bill May Spell Trouble for Pedestrian Cases

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 or death.”

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 unintentional.”

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 questions.

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.

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