What are you, a comedian?

Fromm Buress v. City of Miamidecided on Wednesday by the Eleventh Round (Judges Kevin Newsom, Andrew Brasher and Susan Black):

This case stems from the arrest of Hannibal Bures for disorderly intoxication. Buress sued the city of Miami, Miami police officer Luis Verne and Miami police officer Elio Vilegas, alleging violations of 42 USC § 1983 for false arrest, retaliation, non-interference and illegal policy and practice, as well as claims under state law for malicious criminal persecution and false arrest …

This complaint concerns whether Villegas is entitled to qualified immunity against Buress’s assertion that Villegas did not intervene in the false arrest. We set out the facts set out in Buress’s first amended complaint, including the facts that led to Villegas’ involvement in Buress’s arrest, in order to put the relevant facts into context …

On December 9, 2017, Buress, a stand-up comedian and actor, visited Miami. Burez was socializing and drinking with friends on the spot when his phone’s battery ran out. Bures left the place around 21:00 and went to his hotel. While walking, Burez saw Officer Verne and asked Verne to call Burez with Uber in exchange for $ 20, but Verne refused. After Verne rejected Burez’s request, Burez noticed Verne, who was on duty and wearing his Miami police uniform, socializing and kissing young women leaving the club. Burez told Officer Verne, “You’re there kissing [women] but can’t call me Uber? “Bures claims he had a statement as a joke.

Vern responded to Bares’s joke by ordering Bares to leave the street. Barres claims he has never been “aggressive, threatening or behaving in a way that suggests he is a threat”, but he nevertheless obeyed Verne’s orders and entered the bar in search of a phone charger or another patron who wants to call Uber for him. Vern followed Bares to the bar and ordered Bares to leave the bar, claiming that Bares was too drunk to be in the room. Bures was confused and asked Verne, “If I can’t be on the street, where do you want me to be?” Vern responded by ordering Bures to leave the bar.

Burez obeyed and left the bar. After Bures and Vern were out of the bar, Vern turned on his camera and ordered Bures to leave. Burez walked away from Verne, but then stopped and turned, saying to the body chamber, “Hey, it’s me. What’s wrong? This cop is stupid as hell. ” Burez backed away from Verne as he made the statement. Verne instructed Burez to “get out of here,” but then changed his mind. Verne then ordered Bares to put his hands behind his back, took Bares by the arms, and handcuffed Bares.

While Burez was detained, Burez repeatedly asked Verne to explain what he was accused of. Verne suggests that Bares is “resisting,” but Burez says he has never resisted Verne’s attempt to arrest him. During this time, Burez met three fans and encouraged them to record the match. Fans began recording, and Verne told them to “get out of here.” Burez repeatedly asked Verne what his accusations were, and Verne refused to answer, saying “you will understand, I will state it in writing.” Burez asked Verne to read him his rights, and Verne replied, “I don’t have to read you anything.” Verne then states: “I told you to leave about seven times and you refused to leave. Learn how to leave. Burres claims he tried to leave when he was detained.

The alleged facts related to this complaint begin here. Officer Villegas arrived on the scene and joined Verne’s interaction with Burez. Bures claims that when Vilegas arrived, it was obvious that Bures had not violated, threatened or disturbed. Vilegas witnessed Bures’ confusion and concern about the reason for his detention, and Bures told Vilegas, “I did nothing.” Vilegas looked at Verne, but did not ask about the legitimacy of Bures’ detention.

Vilegas began to take an active part in the detention of Burez. Burez asked Verne and Vilegas if he had been arrested, and Vern replied, “Did I tell you you were under arrest?” Then Vilegas put his hand on Bares’s shoulder and said, “Let’s go.” As Vilegas began escorting Burez to the police car, Vilegas appeared to turn on his body camera. Vilegas and Verne accompanied Bares to a nearby police car, each holding one of Bares’s hands. When they arrived in the police car, Vilegas told Bures to lean against the car.

Bures continued to ask police if he had been arrested and the reason for his arrest. Vilegas finally replied, “You are currently in custody.” Verne claims that Bures was detained for border violation and intoxication, and Vilegas reiterated that Bures was detained for intoxication. During the exchange, Verne pushed Burez toward the police car and tore his shirt.

As Villegas tried to get Bures into the police car by pushing his chest, Bures said of Verne, “He’s just salty that I burned his ass.” Villegas stopped, then looked at Verne, who replied, “Yes, it’s me.” Burez claims that with these words, Vern confirmed that the arrest and arrest of Burez “was illegal and vindictive.” Burez has repeatedly told Vilegas that the staff has no probable cause. At no point did Vilegas request additional information from Verne about the legitimacy of the detention or arrest. Instead, Villegas continued to force Bures into the police car.

Without qualified immunity, the court said:

IN Jones vs. Cannon (11th Cir. 1999), we accepted that when an employee was present at the time of arrest and knew that the arrested employee did not have a reasonable basis to argue the probable cause, the employee who was not arrested may be held liable under § 1983, if he had participated sufficiently in the arrest. We later clarified that “a participant in the arrest, even if he is not the arresting officer, can be held liable if he knew that the arrest had no constitutional basis and nevertheless participated in some way.” Thus, if an employee knows that the arrest is unconstitutional but still participates in the arrest, that employee may be held liable.

Applying that case-law to the facts, as alleged in the first amended appeal, the district court did not err in denying Villegas qualified immunity. Drawing all reasonable conclusions in favor of Buress, Buress sufficiently claims that Villegas knew that there was no constitutional basis for the arrest, and that he participated in it anyway.

In particular, when Burez stated with regard to Verne that “[h]It’s just salty that I burned his ass, “and Vern replied,”[y]yes, I am, “this statement can be read in the light that is most favorable to Burez, that Villegas knew that Vern had arrested Burez in revenge. See Nieves v. Bartlett (2019) (noting that, in general, the First Amendment prohibits civil servants from retaliating against persons for participating in a protected speech). This statement, combined with Burez’s allegations that he told Vilegas that he had done nothing and that there was no probable reason for the arrest, and that Vilegas had not been present to witness the initial stages of his arrest, was sufficient to bring an action for non-interference.

Note that this case is different from Wilkerson v. Seymour (11th Cir. 2013), where we granted qualified immunity to an employee, Parker, who “lacked the necessary information to inform him that” there has been or has been an illegal arrest “. Parker arrived at the scene about three minutes after the arrested police officer Seymour completed his arrest and Wilkerson was already in the back of the patrol car. At the time, Seymour gave Parker a detailed explanation for why he had arrested Wilkerson.

In contrast, the complaint here alleges that Vilegas was actively involved in the arrest after arriving at the scene after the initial arrest of Burez by Verne. Note. We note that there is a factual dispute as to when Burez was considered “arrested” against “detained”, but at this stage of the proceedings we accept the plaintiff’s allegations. of public order conduct, he has not cited other facts in support of the arrest. Then Verne agreed that he was “just salty”, that Bures had “burned” him. At this stage of the proceedings, these allegations are sufficient to allege that Vilegas knew that there were no constitutional grounds for his arrest, but nevertheless participated.

Although we agree with Villegas that the statement can also be read as an acknowledgment that Verne was upset that he was “baked” by Bures, while he had a legitimate reason to arrest him for improper intoxication, we must do all reasonable conclusions in favor of Burez in a proposal to terminate the stage.

We note that there is evidence from a body camera that can clarify the actions of Vilegas. Although Buress may or may not have established during an abridged judgment or trial that Villegas knew there was no constitutional basis for the arrest but nevertheless participated in it, we conclude that Buress relies on a minimum of sufficient facts, to survive a request for rejection as to Vilegas.

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