City of Gainesville retains outside counsel to fight HB 1

BY JENNIFER CABRERA

The Gainesville City Commission decided in their May 20 meeting to retain two law firms on a pro bono basis to challenge the recently-passed HB 1, “Combating Public Disorder.”

Commissioner Gail Johnson requested that the item be placed on the agenda, saying the bill is “unjust, discriminatory.” She said the Community Justice Project and Public Rights Project were willing to represent the City pro bono to file a lawsuit challenging HB 1 “on behalf of the City as an anchor plaintiff.” Johnson said she believes Gainesville is “best positioned to do this because we’ve had conversations” about reducing the law enforcement budget. 

The Community Justice Project is a non-profit “movement law firm” based in Miami and funded through the Florida Bar Association. Their representative said, “As community lawyers, we work closely with community organizers in grassroots groups in communities of color in their struggle for a more democratic, just, and equal society.” Their representative said about HB 1: “This law is intended to silence the voice of community activists while simultaneously impeding local officials from addressing the concerns of their constituents… Cities need to push back and push back early against this continuous grasp for power at the state level.”

The Public Rights Project is “a nonpartisan, nonprofit organization dedicated to eliminating the gap between the values expressed in our laws and the lived reality of our most vulnerable communities.” Their representative said, “After the largest peaceful protest in our nation’s history, many state legislatures are trying to curtail efforts to answer the call of those protests to reimagine policing and push to racial equality. These states want to criminalize protest, pressure cities to crack down on protesters by imposing liability, and they want to punish for thinking creatively about how to approach police reform.”

Gainesville City Attorney Nicolle Shalley said her office has already been in contact with the Florida League of Cities and has reviewed HB 1, and she has been trying to determine if there is a cause of action the City can bring at this point. “The answer to that is no, from our perspective.” She said attorneys from her office had also met with attorneys from the two nonprofits, and they did not determine from that meeting that there is a cause of action at this point. 

Shalley said that if the State Attorney challenged a budget decision of the City Commission, they would then have “what’s called an applied challenge to the law, meaning that now that real facts and circumstances presented themselves, we have a basis to challenge… At this point in time, your City Attorney’s office does not recommend you proceed with litigation.” She also said that if they did find a cause of action, they would decide whether to handle it in-house or retain outside counsel and then bring that to the City Commission. 

Mayor Lauren Poe said that this, for him, “goes beyond moral opposition. I do think we have a moral obligation to oppose this law… The idea… that a governor has the power to deputize local law enforcement… That’s the kind of power that gets used in governments around the world that are not known for good things.”

Commissioner Harvey Ward asked if other cities are ready to move on this. The outside attorneys said they are anticipating there will be a group of cities, but “Gainesville is well-poised to lead here.” Ward said he was not in favor of moving forward “without more clear support from our own attorney staff.”

In response to a question from Commissioner Reina Saco about “trigger language” in the bill, Shalley said that when members of the public have “moral outrage… those are the kind of things that you engage in lobbying to stop it. You try to convince legislators to repeal it in the next legislative session. Again, to bring a lawsuit, we would either have to find something facially in this bill… that we believe violates the law… We just haven’t found that yet. We will continue to monitor.” Saco said she was “leery” of proceeding with Johnson’s resolution: “My personal philosophy is to not start a lawsuit unless you know they have a fairly good chance of winning. I don’t know if we have that right now.”

Commissioner Adrian Hayes-Santos proposed that they “make our own cause of action”—make a budget cut, for example. 

Poe said he wanted to take “some deliberate action today… for me, this is a threat. It’s not allowing me to make decisions I would normally make as an elected official serving our citizens. It’s not. I feel threatened and intimidated.”

Johnson moved to direct staff to engage with the Community Justice Project and Public Rights Project to “initiate litigation on behalf of the City of Gainesville against the State and DeSantis in response to HB 1” and add the resolution to the next City Commission agenda. Commissioner Desmon Duncan-Walker seconded the motion.

Shalley said she didn’t think the resolution was necessary because her office is already working with the two groups and other cities to determine if there is a cause of action that would allow them to initiate litigation: “You don’t usually direct us to do things via a resolution.”

Johnson said that “respectfully,” that wasn’t what the motion said; she said that staff “will” be working and engaging with the two outside organizations. Shalley said that was exactly what they’ve been doing. 

Hayes-Santos asked for clarification whether Johnson intended for the City to file a lawsuit, and Johnson said, “Yes, the outcome will be the litigation piece of this, which is clearly stated in the motion.” Hayes-Santos said he wasn’t ready yet to move forward with litigation. After more questions, Johnson said, “How about to prepare a complaint” with the two organizations. Saco said she was also more comfortable with preparing a draft complaint.

After public comment, which mainly supported the motion but was often more about the protest provisions of the bill instead of the budget provisions, Johnson amended the motion to state that the City will retain the Community Justice Project and Public Rights Project to represent the City to prepare a draft complaint in response to HB 1 and that the City Attorney and City Manager will work with the organizations to present the draft complaint to the Commission within 30 days. The motion passed unanimously.