U.S. Court of Appeals for the Eleventh Circuit, 2024

Hannibal Buress v. Luis Verne

U.S. Court of Appeals for the Eleventh Circuit · Decided August 6, 2024

Opinion

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-12895 Non-Argument Calendar ____________________ HANNIBAL BURESS, Plaintiﬀ-Appellee, versus CITY OF MIAMI, Miami, et al.,

Defendants,

LUIS VERNE,

Defendant-Appellant.

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2 Opinion of the Court 23-12895 ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:20-cv-23078-RNS ____________________ Before JORDAN, LAGOA, and BLACK, Circuit Judges.

PER CURIAM: Miami Police Department Oﬃcer Luis Verne appeals the district court’s denial of qualiﬁed immunity and state-law immun- ity 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, Fla. Stat. §§ 838.015-.016; (2) disorderly intoxi- cation, Fla. Stat. § 856.011; (3) disorderly conduct, Fla. Stat. § 877.03; (4) trespass, Fla. Stat. § 810.09; 1 and (5) resisting an oﬃcer without violence, Fla. Stat. § 843.02. 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

1 Officer Verne does not appeal the district court’s conclusion there was “suf- ficient debate regarding the underlying facts to deny summary judgment” on Verne’s assertion he had arguable probable cause to arrest Buress for trespass.

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23-12895 Opinion of the Court 3 Buress’s state law claims. After review, 2 we aﬃrm the district court. 3 I. BACKGROUND On December 9, 2017, Buress, a well-known stand-up come- dian 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

2 We review the denial of qualified immunity de novo. Wilkerson v. Seymour, 736 F.3d 974, 977 (11th Cir. 2013).

3 Buress asserts we should dismiss Officer Verne’s appeal for lack of jurisdic- tion because his appeal asks this Court to credit his version of the facts to find he had arguable probable cause to arrest Buress, and a solely factual challenge cannot be brought on interlocutory appeal. See English v. City of Gainesville, 75 F.4th 1151, 1156 (11th Cir. 2023). In English, we explained this Court lacks interlocutory jurisdiction when the only issues appealed are evidentiary suffi- ciency issues. English, 75 F.4th at 1155. However, when both evidentiary suf- ficiency and whether the law was clearly established are at issue, this Court has jurisdiction for de novo review. Id. at 1155-56. While much of Officer Verne’s appeal is appealing evidentiary sufficiency, some of his arguments also regard whether clearly established law regarding arguable probable cause for some of the offenses exists, so we have jurisdiction over the appeal. See id. USCA11 Case: 23-12895 Document: 40-1 Date Filed: 08/06/2024 Page: 4 of 13 4 Opinion of the Court 23-12895 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, Bu- ress “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 profan- ity, 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, Of- ﬁcer Verne turned on his body-worn camera. For the ﬁrst 30 sec- onds 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 USCA11 Case: 23-12895 Document: 40-1 Date Filed: 08/06/2024 Page: 5 of 13

23-12895 Opinion of the Court 5 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 tres- passing and disorderly intoxication. Buress then says Oﬃcer Verne is just “salty” that he “roasted his ass.” Oﬃcer Verne responds “Yeah . . . I am.”

II. DISCUSSION To receive qualiﬁed immunity, an “oﬃcer bears the initial burden to prove that he acted within his discretionary author- ity.” Dukes v. Deaton, 852 F.3d 1035, 1041 (11th Cir. 2017). The plain- tiﬀ then bears the burden of showing “the defendant violated a USCA11 Case: 23-12895 Document: 40-1 Date Filed: 08/06/2024 Page: 6 of 13

6 Opinion of the Court 23-12895 constitutional right” and “the right was clearly established at the time of the violation.” Barnes v. Zaccari, 669 F.3d 1295, 1303 (11th Cir. 2012). Because Buress does not dispute Oﬃcer Verne was en- gaged in a discretionary function, he bears the burden of proving Oﬃcer Verne was not entitled to qualiﬁed immunity.

Buress asserts Oﬃcer Verne violated the Fourth Amend- ment by falsely arresting him. “To succeed on a false arrest claim, a plaintiﬀ must establish (1) a lack of probable cause and (2) an ar- rest.” Richmond v. Badia, 47 F.4th 1172, 1180 (11th Cir. 2022). “Ac- cordingly, when the government has probable cause to arrest some- one, a false arrest claim necessarily fails.” Id. In the context of an arrest, probable cause exists “when the facts, considering the totality of the circumstances and viewed from the perspective of a reasonable oﬃcer, establish ‘a probability or substantial chance of criminal activity.’” Washington v. Howard, 25 F.4th 891, 898-99 (11th Cir. 2022) (quoting District of Columbia v. Wesby, 583 U.S. 48, 57 (2018)). In assessing whether there was prob- able cause for an arrest, we “ask whether a reasonable oﬃcer could conclude that there was a substantial chance of criminal activ- ity.” Id. at 902 (quotation marks and alteration omitted). “Probable cause does not require conclusive evidence and is not a high bar.” Id. at 899 (quotation marks omitted).

An oﬃcer need not have actual probable cause, but only ar- guable probable cause, to receive qualiﬁed immunity. Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). “Arguable probable cause exists where reasonable oﬃcers in the same circumstances USCA11 Case: 23-12895 Document: 40-1 Date Filed: 08/06/2024 Page: 7 of 13

23-12895 Opinion of the Court 7 and possessing the same knowledge as the [oﬃcer] could have be- lieved that probable cause existed to arrest.” Id. (quotation marks omitted). “Showing arguable probable cause does not . . . require proving every element of a crime.” Id. Thus, we now turn to whether there was arguable probable cause to arrest Buress. To determine whether there was arguable probable cause for Buress's arrest, we ask whether a reasonable of- ﬁcer could have believed there was a substantial chance he had committed the crimes of (1) bribery and unlawful compensation or reward for oﬃcial behavior under Fla. Stat. §§ 838.015-.016; (2) disorderly intoxication and disorderly conduct under Fla. Stat. §§ 856.011 and 877.03; and (3) resisting an oﬃcer without violence under § 843.02. We will address each crime in turn.

A. Bribery and Unlawful Compensation or Reward for Oﬃcial Behavior 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 rea- sonable 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 Of- ﬁcial action of the person to whom the bribe is oﬀered.” Nell v. State, 277 So. 2d 1, 5 (Fla. 1973). The elements of unlawful com- pensation or reward for oﬃcial behavior also include the act being compensated or rewarded is in the oﬃcial discretion of the public USCA11 Case: 23-12895 Document: 40-1 Date Filed: 08/06/2024 Page: 8 of 13

8 Opinion of the Court 23-12895 servant, in violation of a public duty of the public servant, or in performance of the public servant’s public duty. Fla. Stat. § 838.016; State v. Castillo, 877 So. 2d 690, 694 n.6 (2004).

The district court did not err in concluding that Oﬃcer Verne did not have arguable or actual probable cause to arrest Bu- ress for bribery or unlawful compensation or reward for oﬃcial be- havior 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 im- plicated.

Buress asserts the law was clearly established in Florida that bribery and unlawful compensation applied only to oﬃcial acts.

See Castillo, 877 So. 2d at 691 (Florida’s unlawful compensation stat- ute “prohibits public oﬃcials from seeking or accepting unauthor- ized beneﬁts in return for performance or nonperformance of oﬃ- cial duties” (emphasis added)). 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 of- ﬁcial act. While we acknowledge that every element of a crime does not have to be present for arguable probable cause, a reasona- ble 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. We aﬃrm on this issue.

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23-12895 Opinion of the Court 9 B. Disorderly Intoxication and Disorderly Conduct 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.” Fla. Stat. § 856.011. The Florida Supreme Court has clariﬁed this statute is “not an attempt to regulate the morality of any individual,” but rather requires an oﬃcer to believe that an individual’s behavior is endangering public safety or causing a public disturbance. State v. Holden, 299 So. 2d 8, 9 (Fla. 1974).

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. Fla. Stat. § 877.03.

The district court did not err in ﬁnding, when viewing the evidence in the light most favorable to Buress, that there is a genu- ine factual dispute over whether Oﬃcer Verne had actual or argua- ble 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, how- ever, maintains he used a joking, light-hearted tone. And the First Amendment protects “[t]he freedom of individuals verbally to USCA11 Case: 23-12895 Document: 40-1 Date Filed: 08/06/2024 Page: 10 of 13

10 Opinion of the Court 23-12895 oppose or challenge police action without thereby risking arrest.”

City of Houston v. Hill, 482 U.S. 451, 462-63 (1987). [T]he First Amendment protects a signiﬁcant amount of verbal criticism and challenge directed at police of- ﬁcers. Speech is often provocative and challenging.

But it is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. Id. at 461 (quotation marks and alterations omitted). 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 sup- ports 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. Bu- ress’s version of events presents a jury question on whether Oﬃcer Verne had arguable probable cause to arrest him for disorderly in- toxication or disorderly conduct. We aﬃrm the district court on this claim.

C. Resisting an Oﬃcer without Violence “Whoever shall resist, obstruct, or oppose any oﬃcer . . . in the lawful execution of any legal duty, without oﬀering or doing USCA11 Case: 23-12895 Document: 40-1 Date Filed: 08/06/2024 Page: 11 of 13

23-12895 Opinion of the Court 11 violence to the person of the oﬃcer, shall be guilty of ” resisting an oﬃcer without violence. Fla. Stat. § 843.02. “To support a convic- tion under § 843.02, the state must show: (1) the oﬃcer was en- gaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of that lawful duty.” Storck v. City of Coral Springs, 354 F.3d 1307, 1315 (11th Cir. 2003). Oﬃcer Verne could not be carrying out “the lawful execu- tion 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.

As to this claim, Oﬃcer Verne asserts that some of the facts and inferences the district court found in the light most favorable to Buress were controverted by video evidence. Oﬃcer Verne as- serts the video shows that Buress took ten steps away from Oﬃcer Verne after being instructed to position his hands for handcuﬃng and Buress used his free hand to engage with the three individuals who witnessed and videoed the arrest. The district court did not ignore this video evidence, however. The district court denied qualiﬁed immunity on the resisting arrest without violence claim because there is a jury question regarding whether Oﬃcer Verne lacked probable cause to arrest in the ﬁrst place, and thus even if there is a jury question regarding whether Buress resisted without violence, Buress did not resist “in the lawful execution” of a legal duty. These facts from the video evidence did not aﬀect the district court’s analysis of this claim. We aﬃrm the district court on this claim.

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12 Opinion of the Court 23-12895 D. First Amendment Retaliation 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 be- cause of the exercise of their First Amendment rights.” Bennett v. Hendrix, 423 F.3d 1247, 1255 (11th Cir. 2005). Buress alleged suﬃ- cient facts that Oﬃcer Verne retaliated against him by falsely ar- resting him for exercising his First Amendment rights. Oﬃcer Verne is not entitled to qualiﬁed immunity on this claim.

E. Florida law claims Similarly, Oﬃcer Verne is not entitled to immunity from Bu- ress’s state law claims alleging malicious prosecution and false ar- rest. “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.” Baxter v. Roberts, 54 F.4th 1241, 1272 (11th Cir. 2022). 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 proba- ble 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.

III. CONCLUSION Genuine issues of material fact remain regarding whether Oﬃcer Verne falsely arrested Buress in retaliation for Buress exer- cising his First Amendment rights, and under Buress’s version of USCA11 Case: 23-12895 Document: 40-1 Date Filed: 08/06/2024 Page: 13 of 13

23-12895 Opinion of the Court 13 the facts, a reasonable oﬃcer in Oﬃcer Verne’s position would not believe arguable probable cause existed to arrest Buress under clearly established law. We aﬃrm the district court.

AFFIRMED.

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