From Tuesday's decision in Buress v. City of Miami (Judges Adalberto Jordan, Barbara Lagoa, and Susan Black):
Miami Police Department Officer Luis Verne appeals the district court's denial of qualified immunity and state-law immunity in his arrest of Hannibal Buress. The district court concluded there were genuine issues of material fact remaining regarding whether Officer Verne had arguable probable cause to arrest Buress for the crimes of (1) bribery and unlawful compensation or reward for official behavior; (2) disorderly intoxication; (3) disorderly conduct; (4) trespass; and (5) resisting an officer without violence. The district court similarly determined Buress raised a genuine issue of material fact regarding whether Officer Verne violated Buress's First Amendment rights and that Officer Verne was not entitled to state-law immunity on Buress's state law claims…. [W]e affirm ….
On December 9, 2017, Buress, a well-known stand-up comedian and actor, was visiting Miami for the Art Basel festival. Buress spent "substantial time" having drinks at Gramps Bar in the Wynwood area. At some point that night, Buress's phone died, and Buress walked toward the corner of NW 2nd Avenue and NW 20th Terrace to find a ride back to his hotel. Officer Verne was posted at that corner, and Buress walked up to him and said "call me an Uber and I'll give you $20." Verne said "no" to Buress's request.
At this point, the two parties' accounts of the facts diverge. Officer Verne states Buress got closer to him and began going back and forth with him and yelling a bunch of profanities. Buress states that after Officer Verne refused his request, he walked away and did not say anything. Buress then looked back and observed Officer Verne kissing a woman who came out of a bar. At that point, Buress "yelled back" at Officer Verne about how he was kissing this woman but could not call him an Uber. Buress and Officer Verne agree they had words back and forth. Buress admits using profanity, but states it was joking and lighthearted.
Buress walked away and into a bar. Officer Verne followed Buress into the bar and told him to leave. Buress complied, but the parties dispute how quickly he did so. Officer Verne asserts Buress was "belligerent," "visibly drunk," and "could barely walk." Buress denies being belligerent or unable to walk. Buress does not deny that he was visibly drunk and agrees that Officer Verne thought he was drunk.
As Buress left the bar with Officer Verne following him, Officer Verne turned on his body-worn camera. For the first 30 seconds of video, there is no audio, but video shows Buress standing several feet away from Officer Verne, talking animatedly with him while smiling. The audio then begins and Buress states "put the camera on." Officer Verne responds, "it's been on, G." Buress then takes one small step toward Officer Verne and while still a few feet away says, "Hey, it's me, what's up, this cop, he's stupid. Hey, what's happening?" Buress then takes another step toward Officer Verne and says directly to the camera, "Hey, what's up? It's me Hannibal Buress, this cop is stupid as fuck. Hey, put this camera on." Officer Verne begins walking toward Buress and says, "Get out of here before you," before trailing off. Buress backs away and says "Hey, what's up YouTube?" while at the same time, Verne says "Get out of here," again. Less than a second later, Officer Verne says "Alright, put your hands behind your back."
As Buress continues backing away, he asks Verne, "for what?" and "what's the charge?" multiple times as Verne says, "I'll let you know as soon as you put your hands behind your back." Officer Verne then states, "Are you going to resist me?" and Buress immediately complies by allowing Officer Verne to grab his arm and begin handcuffing him. While Buress is being handcuffed, three people walk by calling Buress "Hans" and begin to record the arrest on their phones. Buress raises his free hand for a few seconds to say hello to the passerby, but then immediately puts it down for Officer Verne to handcuff him. Throughout, Buress continues to ask why he is being arrested, but allows Officer Verne to handcuff him and stands still without requiring any restraint. Buress is moved to a squad car while repeatedly asking about the reason for the arrest. Officer Verne states Buress is being detained for trespassing and disorderly intoxication. Buress then says Officer Verne is just "salty" that he "roasted his ass." Officer Verne responds "Yeah … I am." …
An officer need not have actual probable cause [to arrest], but only arguable probable cause, to receive qualified immunity. "Arguable probable cause exists where reasonable officers in the same circumstances and possessing the same knowledge as the [officer] could have believed that probable cause existed to arrest." …
To determine whether there was probable cause or arguable probable cause for Buress to be arrested for bribery or unlawful compensation or reward for official conduct, we ask whether a reasonable officer could have believed there was a substantial chance he had committed these crimes. The elements of bribery under Florida law are: "(1) knowledge on the part of the accused of the official capacity of the person to whom the bribe is offered, (2) the offering of a thing of value, and (3) the intent to influence the Official action of the person to whom the bribe is offered." …
The district court did not err in concluding that Officer Verne did not have arguable or actual probable cause to arrest Buress for bribery or unlawful compensation or reward for official behavior because Buress's offer did not implicate any official act. The parties agree that Buress approached Officer Verne and stated, "call me an Uber and I'll give you $20." Calling an Uber is not an official act, so the bribery and unlawful compensation statutes are not implicated.
Buress asserts the law was clearly established in Florida that bribery and unlawful compensation applied only to official acts. Officer Verne asserts that a member of the public offering a police officer money for any act, whether an official act or not, is arguable probable cause for a bribery or unlawful compensation charge. We disagree. Florida law is clear that the bribe or unlawful compensation must be offered for an official act. While we acknowledge that every element of a crime does not have to be present for arguable probable cause, a reasonable officer in Officer Verne's position would not believe that $20 offered to call an Uber was a bribe or unlawful compensation based on an official act….
Under Florida's disorderly intoxication statute, "[n]o person in the state shall be intoxicated and endanger the safety of another person or property, and no person in the state shall be intoxicated or drink any alcoholic beverage in a public place or in or upon any public conveyance and cause a public disturbance." … Florida law also provides "[w]hoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct," is guilty of disorderly conduct.
The district court did not err in finding, when viewing the evidence in the light most favorable to Buress, that there is a genuine factual dispute over whether Officer Verne had actual or arguable probable cause to arrest Buress for disorderly intoxication or disorderly conduct. Both parties agree that Buress was intoxicated and insulted Officer Verne, including using profanity. Buress, however, maintains he used a joking, light-hearted tone. And the First Amendment protects "[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest." … Thus, while Buress admittedly insulted Officer Verne, that alone is not enough for a disorderly intoxication or disorderly conduct charge.
As to causing a public disturbance, the video evidence supports Buress's version of events that his actions were not drawing a crowd, and that three bystanders stopped to record him only after Officer Verne began arresting him. Before that point, the video shows that people were walking by Buress and Officer Verne. Nor is there any evidence Buress was endangering public safety. Buress's version of events presents a jury question on whether Officer Verne had arguable probable cause to arrest him for disorderly intoxication or disorderly conduct. We affirm the district court on this claim….
"Whoever shall resist, obstruct, or oppose any officer … in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of" resisting an officer without violence…. Officer Verne could not be carrying out "the lawful execution of any legal duty" without arguable probable cause to arrest Buress. Thus, Officer Verne could not have arguable probable cause to arrest Buress for resisting arrest without arguable probable cause to arrest Buress for another offense….
The district court also did not err in finding Officer Verne is not entitled to qualified immunity from Buress's first amendment retaliation claims. "This Court and the Supreme Court have long held that state officials may not retaliate against private citizens because of the exercise of their First Amendment rights." Buress alleged sufficient facts that Officer Verne retaliated against him by falsely arresting him for exercising his First Amendment rights….
Similarly, Officer Verne is not entitled to immunity from Buress's state law claims alleging malicious prosecution and false arrest. "Florida's immunity scheme shields an officer from individual liability for on-the-job torts as long as the officer did not commit the tort in bad faith, maliciously, or wantonly." Buress has alleged sufficient facts to allow a reasonable jury to conclude Officer Verne acted in bad faith, maliciously, or wantonly by arresting Buress without probable cause. In particular, Officer Verne's agreement with Buress's statement that Officer Verne arrested him because he was "salty" that he "roasted" him could support Buress's claim….
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