Start with Tuesday’s decision Brees v. City of Miami (Judges Adalberto Jordan, Barbara Lagoa and Susan Black):
Miami Police Department Officer Louis Verne appeals the district court’s denial of qualified immunity and state-law immunity in the arrest of Hannibal Buress. The district court concluded that genuine issues of material fact existed as to whether Officer Verne had probable cause to arrest Burroughs: (1) bribery and unlawful compensation or reward for official conduct; (2) disorderly intoxication; (3) Disorderly conduct; (4) Trespassing; (5) Resisting an officer without violence. The district court also ruled that Burroughs raised a genuine issue of material fact as to whether Officer Verne violated Burroughs’s First Amendment rights and that Officer Verne did not have standing to assert Burroughs’ state law claims Enjoy state law immunity…. [W]eConfirm…
On December 9, 2017, the famous stand-up comedian and actor Brace went to Miami to participate in the Basel Art Festival. Brace spent “a lot of time” at Gramps Bar in the Wynwood area. At some point that night, Burres’ cell phone died and Burres walked to the corner of Northwest Second Avenue and Northwest 20th Terrace to get a ride back to the hotel. Officer Verne was stationed on the corner, and Brace walked up to him and said, “Call me an Uber and I’ll give you $20.” Verne said “no” to Brace’s request.
At this point, both sides differ in their accounts of the facts. Officer Verne said Brees approached him and began pacing with him and yelling a bunch of profanities. Burroughs said after Officer Verne denied his request, he walked away without saying anything. Burroughs then looked back and saw Officer Verne kissing a woman coming out of the bar. At that point, Burroughs “yelled” to Officer Verne about how he was kissing the woman but couldn’t call him an Uber. Officers Burroughs and Verne agreed that they had spoken repeatedly. Brees admitted to using profanity but said it was done in a joking and light-hearted manner.
Blaise walked away and walked into a bar. Officer Verne followed Brace into the bar and asked him to leave. Brees agreed, but there was dispute over the speed with which he did so. Officer Verne asserted that Brace was “combative,” “obviously drunk” and “barely able to walk.” Brees denied being combative or being unable to walk. Brace did not deny that he was obviously intoxicated and agreed with Officer Verne that he believed he was intoxicated.
As Brace left the bar and Officer Verne followed him, Officer Verne turned on his body-worn camera. There is no audio for the first 30 seconds of the video, but it shows Brees standing a few feet away from Officer Verne, smiling and talking warmly to him. The audio then begins with Burress saying “turn on the camera.” Officer Verne responded, “It’s on, G.” Brace then took a small step toward Officer Verne and, a few feet away from him, said, “Hey, it’s me, what’s up, this officer?” , he’s stupid. Hey, what’s going on?” Burroughs then took another step toward Officer Verne and said directly to the camera: “Hey, what’s up? It’s me, Hannibal Burroughs. Hey, this cop is fucking stupid. Hey, turn this camera on. Officer Verne started walking toward Brace and said, “Get out of here,” then trailed off. Buress takes a step back and says, “Hey, how’s YouTube doing?” At the same time, Verne says “Get out of here” again. Less than a second later, Officer Verne said, “Okay, put your hands behind your back.”
As Brace continued to back away, he asked Verne, “Why?” and “What’s the charge?” As Verne said, “As soon as you put your hands behind your back, I’m going to let you know.” Officer Verne Then he said, “Are you going to resist me?” Burroughs immediately agreed, allowing Officer Verne to grab his arm and begin handcuffing him. As Brace was being handcuffed, three men passed by, called Brace “Hans,” and began recording the arrest on their cellphones. Brace raised his free hand for a few seconds to greet passers-by, but then immediately lowered it to allow Officer Verne to handcuff him. Throughout, Brace continued to question why he was being arrested but allowed Officer Verne to handcuff him and stand still without the need for any restraints. Brace was transferred to a police car while being repeatedly questioned about the reason for the arrest. Officer Verne said Brees was taken into custody for trespassing and alcohol abuse. Burroughs went on to say that Officer Verne was just “salty” and that he “roasted his ass.” Officer Verne replied: “Yes…I am.” …
Officer does not need to have actual probable cause [to arrest]but qualified immunity will only be available if there is disputed probable cause. “If a reasonable officer would have acted in the same circumstances and with the same knowledge as the officer, there is probable cause at issue. [officer] It is believed that probable cause for arrest exists.
To determine whether Burroughs had probable cause or disputed probable cause for bribery or illegal compensation or official action awards, we asked whether a reasonable officer would believe that there was a substantial probability that he committed these crimes. The elements of bribery under Florida law are: “(1) the defendant’s knowledge of the bribe recipient’s official identity, (2) the offer of something of value, and (3) the intent to influence the bribe recipient’s official conduct.” …
The district court concluded that Officer Verne had no arguable or actual probable cause to arrest Burroughs for bribery or unlawful compensation or reward for official acts because Burroughs’ offer did not implicate any official Behavior. Both parties agree that Burroughs approached Officer Verne and said, “Call me an Uber and I’ll give you $20.” Calling an Uber was not an official act and therefore did not involve bribery or illegal compensation statutes.
Burroughs claimed that Florida clearly states that bribery and illegal compensation only apply to official acts. Sergeant Verne claims a member of the public offered an officer money any Conduct, whether official or not, may be grounds for charges of bribery or illegal compensation. We disagree. Florida law clearly states that bribes or illegal compensation must be provided for official actions. While we acknowledge that every element of the crime does not necessarily have arguable probable cause, a reasonable officer in Officer Verne’s position would not believe that the $20 Uber ride was a bribe or illegal compensation based on official conduct….
Under Florida’s intoxication laws, “[n]o No person in the State shall be intoxicated or consume any alcoholic beverage and cause a public disturbance in a public place or in or on any public conveyance. The law also stipulates that “[w]Anyone who commits acts that corrupt public morals, insults public decency, affects the peace of witnesses, or participates in quarrels or fights, or engages in the following acts: constituting acts that breach public peace or disturb public order” shall be guilty of the crime of disorderly conduct.
When viewing the evidence in the light most favorable to Burroughs, the district court held that there was a genuine dispute of fact as to whether Officer Verne had actual or demonstrable probable cause to arrest Burroughs for intoxication or disorderly conduct, There is nothing wrong with this. Both parties agreed that Brace was intoxicated and insulted Officer Verne, including using profanity. However, Brees insisted he struck a joking, light-hearted tone. First Amendment protection”[t]Individuals have the freedom to verbally object or challenge police actions without risking arrest. or allegations of disorderly conduct.
As for causing a public disturbance, film evidence supports Brace’s version of events that his actions did not draw a crowd and that only after Officer Verne began arresting him did three bystanders stop to film him. Before that, the video shows people walking past Officers Brace and Verne. There was also no evidence that Brees endangered public safety. Burroughs’s version of events raised the question for the jury whether Officer Verne had probable cause to arrest him for drunkenness or disorderly conduct. We affirm this assertion of the district court….
“Any person who resists, obstructs or opposes any officer in the lawful discharge of any legal duty, without offering or committing violence to the officer himself, shall be guilty of ‘resisting an officer without violence’…” If there is no arguable reason Without probable cause to arrest Brace, Officer Verne would not have been able to “lawfully discharge any legal obligation.” Therefore, Officer Verne could not have had arguable probable cause to arrest Brace for resisting arrest and no arguable probable cause to arrest Brace for another crime….
The district court also did not err in finding that Officer Verne was not entitled to qualified immunity from Burroughs’ First Amendment retaliation claim. “This court and the Supreme Court have long held that state officials may not retaliate against private citizens for exercising their First Amendment rights.” Burroughs claimed there were sufficient facts to prove that Officer Verne was guilty of exercising his First Amendment rights. And to retaliate against him by falsely arresting him….
Likewise, Officer Verne was not entitled to immunity from charges of malicious prosecution and wrongful arrest under Brace State law. “Florida’s immunity program protects an officer from personal liability for torts committed on the job as long as the officer did not commit the tort with malice, malice, or wanton intent.” Burroughs claimed there were sufficient facts for a reasonable jury to conclude, Officer Verne arrested Burroughs without probable cause and acted maliciously, maliciously or wantonly. In particular, Officer Verne’s agreement with Burroughs’ statement that Officer Verne arrested him because he “roasted” him “salty” can support Burroughs’s assertion….
