Buress v. City of Miami

United States District Court

for the

Southern District of Florida

Hannibal Buress, Plaintiff, )

)

v. ) Civil Action No. 20-23078-Civ-Scola

)

City of Miami, and others, )

Defendants. )

Order Granting in Part and Denying in Part

Defendants’ Motions for Summary Judgment

This matter is before the Court on the motions for summary judgment

filed by Defendant Officers Luis Verne and Elio Villegas (Def. Officers’ Mot.

Summ. J., ECF No. 121) and by the Defendant City of Miami. (Def. City’s Mot.

Summ. J., ECF No. 124.) Plaintiff Hannibal Buress has responded in

opposition to both motions. (Resp. to Officers’ Mot., ECF No. 138; Resp. to

City’s Mot., ECF No. 141.) All Defendants have replied in support of their

motions. (Def. Officers’ Reply, ECF No. 147; Def. City’s Reply, ECF No. 145.)

After careful consideration of the briefing, the record, and the relevant legal

authorities, the Court denies the Defendant officers’ motion for summary

judgment with respect to Officer Verne (Counts 1, 2, 5, 6) and grants the

Defendant officers’ motion for summary judgment with respect to Officer

Villegas (Count 3). The Court denies the Defendant City of Miami’s motion for

summary judgment (Count 4). (ECF Nos. 121, 124.)

1. Background

Plaintiff Hannibal Buress, well-known stand-up comedian, brings this

case against Miami Police Department Officers Luis Verne and Elio Villegas,

and against the City of Miami itself, for violations of his civil rights under both

federal and Florida law. Based on his arrest on the night of December 9, 2017,

in Miami, Buress brings four claims against Officer Verne: two violations of 42

U.S.C. § 1983 (“Section 1983”) for false arrest (Count 1) and retaliatory arrest

(Count 2), and two state common-law claims for malicious prosecution (Count

5) and false arrest (Count 6). (Am. Compl. ¶¶ 62-73, 88-102, ECF No. 26.) He

also brings one claim for violation of Section 1983 for failure to intervene

against Officer Villegas (Count 3), and one claim against the City of Miami itself

(Count 4) for an unlawful policy or procedure that allowed the violations of his

civil rights under Section 1983. (Id. ¶¶ 74-87.)

On December 9, 2017, Officers Verne and Villegas were assigned to

patrol the Wynwood area of Miami. (Def. Officers’ Statement of Material Facts

(“Officers’ SOMF”) ¶ 5, ECF No. 120; Pl.’s Resp. to Officers’ SOMF ¶ 5, ECF No.

137.) Buress was visiting the area for the Art Basel festival, and he spent

“substantial time” at Gramps Bar in Wynwood, where he “had drinks.”

(Officers’ SOMF ¶ 8; Pl.’s Resp. to Officers’ SOMF ¶ 8.) While the parties

disagree about some of the specifics, it is undisputed that Buress arrived at the

bar sometime in the afternoon and consumed some amount of alcohol during

his “substantial time” there. (Officers’ SOMF ¶¶ 8-9; Pl.’s Resp. to Officers’

SOMF ¶¶ 8-9.) Buress eventually left the bar after his phone died, seeking a

ride back to his hotel. He walked toward Officer Verne’s post at the corner of

NW 2nd Avenue and NW 20th Terrace. (Officers’ SOMF ¶ 10; Pl.’s Resp. to

Officers’ SOMF ¶ 10.) While the parties again dispute some of the finer details

of the initial interaction, both agree that once Buress walked up to Officer

Verne, Buress asked Verne to “call me an Uber and I’ll give you $20.” (Officers’

SOMF ¶ 12; Pl.’s Resp. to Officers’ SOMF ¶ 12; Def. Officers’ Reply SOMF ¶ 12,

ECF No. 146.) Officer Verne refused, instead pointing Buress to a location on

North Miami Avenue where he could find a taxi. (Officers’ SOMF ¶ 14; Pl.’s

Resp. to Officers’ SOMF ¶ 14.)

The parties’ accounts now begin to diverge more significantly. The

Defendant officers state that Buress became belligerent and began screaming

profanities at Officer Verne. (Officers’ SOMF ¶¶ 15-17.) Buress states that he

“saw Verne kissing a woman who came out of a bar” and began using “joking

and lighthearted” profanity with Officer Verne about his kissing the woman

while refusing to call Buress an Uber. (Pl.’s Resp. to Officers’ SOMF ¶¶ 15-17.)

Regardless, all parties agree that Buress and Officer Verne had a “back-and-

forth” before Buress walked away and into a bar. Officer Verne followed Buress

into the bar and told him to leave; Buress complied, although the parties

dispute how quickly he did so. (Officers’ SOMF ¶¶ 18-20; Pl.’s Resp. to Officers’

SOMF ¶¶ 18-20; Def. Officers’ Reply SOMF ¶¶ 18-20.) At this point, Officer

Verne states that Buress was “belligerent” and “visibly drunk,” and that he

“could barely walk.” (Officers’ SOMF ¶¶ 17, 19.) Buress, in turn, asserts that he

was neither belligerent nor unable to walk. (Pl.’s Resp. to Officers’ SOMF ¶¶ 17,

19.) Buress does not challenge Officer Verne’s perception that he was “visibly

drunk,” and, in fact, Buress agrees that Officer Verne “thought [the] Plaintiff

was drunk.” (Id. ¶ 19.)

At this point, as Buress left the bar with Officer Verne following him,

Verne decided to turn on his body-worn camera. (Officers’ SOMF ¶ 21; Pl.’s

Resp. to Officers’ SOMF ¶ 21.)1 At the point where the body-worn camera picks

up, Officer Verne and Buress stand outside while Buress animatedly speaks to

Verne from several feet away. Buress looks into the camera and says “Hey,

what’s up, I’m Hannibal Buress, this cop is stupid as fuck” (Verne BWC at

00:46). Officer Verne then says, “get out of here” and then immediately tells the

Plaintiff to put his hands behind his back. (Verne BWC at 00:53-00:58.) The

Plaintiff immediately begins asking why he is under arrest and Officer Verne

does not provide a justification. (Verne BWC at 00:58-01:15.) Three people walk

by, calling the Plaintiff “Hans” and beginning to record the scene on their

phones. (Verne BWC at 01:15-01:50.) The Plaintiff continues to ask Officer

Verne why he was under arrest, but also allows himself to be handcuffed and

stands still without requiring restraint. (Pl.’s Resp. to Officers’ SOMF ¶¶ 27, 56,

57.) Officer Villegas arrives about one minute later and assists Officer Verne

with moving the Plaintiff to the squad car while the Plaintiff continues to

inquire about the reason for his arrest. (Id. ¶¶ 52, 56-59.)

2. Legal Standards

Under Federal Rule of Civil Procedure 56, “summary judgment is

appropriate where there ‘is no genuine issue as to any material fact’ and the

moving party is ‘entitled to a judgment as a matter of law.’” Alabama v. North

Carolina, 130 S. Ct. 2295, 2308 (2010) (quoting Fed. R. Civ. P. 56(a)). “The

moving party bears the initial burden to show the district court, by reference to

materials on file, that there are no genuine issues of material fact that should

be decided at trial . . . [o]nly when that burden has been met does the burden

shift to the non-moving party to demonstrate that there is indeed a material

issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc.,

929 F.2d 604, 608 (11th Cir. 1991). Rule 56(c) “requires the nonmoving party

to go beyond the pleadings and by her own affidavits, or by the depositions,

answers to interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1986) (internal quotation marks omitted). Thus, the nonmoving

party “may not rest upon the mere allegations or denials of his pleadings, but

. . . must set forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation

marks omitted); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1984) (stating “[w]hen the moving party has carried its

1 The Court has reviewed the recording from Officer Verne’s body-worn camera (“Verne BWC”)

in full, which was filed conventionally with the Court, as identified at ECF No. 118. No party

disputes the validity of the body-worn camera footage.

burden under Rule 56(c), its opponent must do more than simply show that

there is some metaphysical doubt as to the material facts”).

The Court must view the evidence in the light most favorable to the

nonmoving party, and summary judgment is inappropriate where a genuine

issue material fact remains. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59

(1970). “An issue of fact is ‘material’ if, under the applicable substantive law, it

might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357

F.3d 1256, 1259-60 (11th Cir.2004). “An issue of fact is ‘genuine’ if the record

taken as a whole could lead a rational trier of fact to find for the nonmoving

party.” Id. at 1260. A court may not weigh conflicting evidence to resolve

disputed factual issues; if a genuine dispute is found, summary judgment

must be denied. Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir.

2007). Where video evidence is in the record, a court can only use the recording

to “disregard the non-moving party’s version of events” if it “so utterly

discredits” the party’s story “that no reasonable jury could have believed” that

party. Brooks v. Miller, No. 21-10590, 2023 WL 5355022, *6 (11th Cir. Aug. 22,

2023) (quoting Scott, 550 U.S. at 380).

3. Analysis

The Court addresses each Defendant’s arguments in turn. The Defendant

Officers Verne and Villegas argue in their motion for summary judgment that

Claims 1-3, 5, and 6 should be dismissed for the following reasons: Claims

and 2, which allege First and Fourth Amendment violations under Section

1983 against Officer Verne, are barred by qualified immunity (Def. Officers’

Mot. Summ. J. at 6-15, 17-20); Claims 5 and 6 which allege state-law

malicious prosecution and false arrest claims against Officer Verne, are barred

by Florida’s sovereign immunity statute (id. at 21); and even if not barred by

sovereign immunity, Claim 5’s malicious prosecution allegation is not

supported by the evidence (id. at 20-21); and Claim 3, which alleges a Fourth

Amendment violation under Section 1983 for failure to intervene with a false

arrest against Officer Villegas, is barred by qualified immunity. (Id. at 15-17.)

The Court agrees regarding Officer Villegas and therefore grants the Officers’

motion with respect to Claim 3 but disagrees and therefore denies the motion

on Claims 1, 2, 5, and 6.

Separately, the Defendant City of Miami argues in its motion for

summary judgment that Claim 4, which alleges that the City is responsible for

the above-mentioned constitutional violations, fails because no underlying

violations took place and that even if they did, the evidence is insufficient to

show that the City had a custom or policy constituting deliberate indifference

that caused the violation. The Court disagrees and therefore denies the City of

Miami’s motion.

A. Officer Verne is not entitled to summary judgment on the Plaintiff’s

Section 1983 and state law claims against him.

The Plaintiff’s Section 1983 claims for false arrest and retaliatory arrest

and state law claims for malicious prosecution and false arrest against Officer

Verne may proceed because Officer Verne is not entitled to qualified immunity

or immunity under Florida’s sovereign immunity statute for his actions, and

the Plaintiff has presented sufficient evidence for a reasonable jury to conclude

that the Section 1983 and state law claims are valid.

(1) Officer Verne is not entitled to qualified immunity on the Plaintiff’s

claims for violations of 42 U.S.C. § 1983.

“In order to assert a qualified immunity defense, a government official

must first establish that he was acting within his discretionary authority at the

time of the challenged conduct.” Khoury v. Miami-Dade Cnty. Sch. Bd., 4 F.4th

1118, 1125-26 (11th Cir. 2021). Because Buress does not challenge whether

Officer Verne acted in a discretionary capacity, “the burden shifts” to Buress

“to show (1) that [Officer Verne] ‘violated a constitutional right’; and (2) that the

‘right was clearly established at the time of the incident.’” Id.

(a) A reasonable juror could conclude that Officer Verne violated

Buress’s clearly established Fourth Amendment rights by arresting

him without arguable probable cause.

Officer Verne argues in his motion for summary judgment that he is

entitled to qualified immunity against Buress’s Section 1983 claims because

Verne had probable cause to arrest Buress on the night of December 9, 2017.

(Officers’ Mot. Summ. J. at 6-21.) Officer Verne asserts that he had both actual

and arguable probable cause to arrest Buress for several state-law crimes and

therefore enjoys qualified immunity. (Id. at 9-15.) Officer Verne further argues

that even if he violated Buress’s constitutional rights, qualified immunity still

applies because he did not violate a “clearly established” right. (Id. at 18-20.)

Buress’s false arrest claim will be sufficient to defeat qualified immunity

so long as Officer Verne lacked arguable probable cause to make an arrest and

therefore violated Mr. Buress’s clearly established rights under the Fourth

Amendment. See Kingsland v. City of Miami, 382 F.3d 1220, 1226, 1232 (11th

Cir. 2004) (“A warrantless arrest without probable cause violates the

Constitution and provides a basis for a section 1983 claim.”) (citations

omitted), abrogated on other grounds by Williams v. Aguirre, 965 F.3d 1147

(11th Cir. 2020); Poulakis, 341 Fed. Appx. at 527. “The existence of probable

cause at the time of arrest, however, constitutes an absolute bar to a section

1983 action for false arrest, . . . or a section 1983 malicious prosecution

claim.” Tarpley v. Miami-Dade Cnty., 212 F. Supp. 3d 1273, 1281 (S.D. Fla.

2016) (Scola, J.) (citations omitted).

To meet his burden, Buress must show that sufficient facts are in

dispute as to whether Office Verne even had arguable probable cause for the

arrest. See Poulakis v. Roger, 341 Fed. Appx. 523, 526 (11th Cir. 2009) (“In

wrongful arrest cases, we have frequently framed the “clearly established”

prong as an “arguable probable cause” inquiry.”). “Probable cause to arrest a

person exists when reasonably trustworthy facts and circumstances lead a

prudent person to believe that an individual has violated the law, is violating

the law, or will violate the law.” Tarpley, 212 F. Supp. 3d at 1281 (citing

Kingsland, 382 F.3d at 1226). Additionally, “officers who make an arrest

without probable cause are entitled to qualified immunity if there was arguable

probable cause for the arrest.” Kingsland v. City of Miami, 382 F.3d 1220, 1232

(11th Cir. 2004). Finally, when an arrest is warrantless, “the only question

relevant to the objective reasonableness of a seizure is whether probable cause

for some crime exists.” Williams v. Aguirre, 965 F.3d 1147, 1162 (11th Cir.

2020) (emphasis in original). The test to determine whether arguable probable

cause to affect a warrantless arrest for some crime existed is a “totality of the

circumstances” test. Khoury v. Miami-Dade Cnty. School Bd., 4 F.4th 1118,

1126 (11th Cir. 2021). Therefore, the Court’s focus here is on whether the

facts, when viewed in the light most favorable to Buress, demonstrate the

existence of a factual dispute regarding the existence of arguable probable

cause for Buress’s warrantless arrest by Officer Verne.

Officer Verne argues that he had both arguable and actual probable

cause to arrest Buress for five offenses: (1) bribery and unlawful compensation

or reward for official behavior, FLA. STAT. §§ 838.015-.016; (2) disorderly

intoxication, FLA. STAT. § 856.011; (3) disorderly conduct, FLA. STAT. § 877.03;

(4) trespass, FLA. STAT. § 810.09; and (5) resisting an officer without violence,

FLA. STAT. § 843.02. (Officers’ Mot. Summ. J. at 9-15.) Taking each in turn, the

Court concludes that Officer Verne did not have arguable or actual probable

cause to arrest Buress for any of the crimes listed.

First, Officer Verne argues that probable cause to arrest Buress for

bribery and unlawful compensation or reward for official behavior existed

because Buress offered Verne money in exchange for Verne calling him an

Uber. 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.” Nell v. State, 277 So.

2d 1, 5 (Fla. 1973) (collecting cases). The offense for unlawful compensation or

reward for official behavior is also premised on intent to influence official acts

or acts taken pursuant to a public duty. See FLA. STAT. § 838.016 (“. . . within

the official discretion of the public servant, in violation of a public duty, or in

performance of a public duty.”).

Officer Verne had no arguable or actual probable cause to arrest Buress

for bribery, unlawful compensation, or reward for official behavior because

Buress’s offer did not implicate any official act. The parties do not disagree

about the relevant facts: Buress approached Officer Verne initially and said

“call me an Uber and I’ll give you $20.” (Officers’ SOMF ¶ 12; Pl.’s SOMF ¶ 12.)

Despite mentioning Buress’s line in Miami Nights that police officers are

“supposed to protect and serve,” Officer Verne does not make a serious attempt

to argue that calling an Uber is within the scope of a police officer’s official

duties, instead attempting to establish that the bribery and unlawful

compensation or reward statutes apply to offers to a public official for any act.

(Def. Officers’ Mot. Summ. J. at 10-11.) However, it is well-established that

these statutes do not apply to every act of a public official as a matter of law.

See, e.g., Raines v. State, 65 So. 2d 558, 560 (Fla. 1953) (noting that “[t]he rule

seems to be well settled”). Therefore, no reasonable police officer would have

concluded that probable cause existed to arrest Buress based upon his offer of

$20.

Officer Verne further argues that probable cause existed to arrest Buress

for disorderly intoxication and disorderly conduct because Buress “yelled

profanities,” causing onlookers to “notic[e] the exchange” and “disregard[ed]

Verne’[s] commands to leave[.]” (Officers’ Mot. Summ. J. at 12.) The Court

addresses probable cause for both offenses together due to the similarities

between the relevant facts for each and the applicable law.

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. Therefore, to establish arguable probable

cause, a reasonable police officer in Officer Verne’s position, given the totality

of the circumstances, would have needed to believe that Buress endangered the

safety of another person or property or caused a public disturbance. State v.

Holden, 299 So. 2d 8, 9 (Fla. 1974). Similarly, under Florida law, disorderly

conduct includes “acts . . . 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 . . . brawling or fighting, or . . . such conduct as to constitute

a breach of the peace or disorderly conduct.” FLA. STAT. § 877.03.

When viewing the evidence with respect to probable cause for disorderly

intoxication and disorderly conduct in the light most favorable to Buress, there

is a genuine factual dispute over whether Officer Verne had actual or arguable

probable cause to arrest Buress. Both sides agree that Buress was intoxicated

and insulted Officer Verne, including with profanities, but Buress maintains

that he used a joking, light-hearted tone and did not threaten Verne or

physically interfere with Verne. (Pl.’s Resp. to Officers’ SOMF ¶ 15.) Buress also

disputes Verne’s version of events with respect to the “crowd” of people who

gathered as a result of Buress’s alleged disorderly conduct and/or intoxication.

Buress says that three people gathered to record Verne’s activities and that his

behavior drew virtually no other attention. (Id. ¶¶ 21-22.) The body-worn

camera footage also supports this interpretation of the evidence, showing

multiple groups of pedestrians walking past Buress with barely a glance and

three people stopping to record Verne on their phones. (Id. ¶ 22.)

Even if it was undisputed that Buress aggressively verbally abused Office

Verne and drew a crowd due to his behavior, such conduct cannot form the

basis for an arrest. An individual’s speech without more—even if the speech is

offensive—cannot provide probable cause for either of these offenses under

Supreme Court, Eleventh Circuit, and Florida Supreme Court precedent. “The

freedom of individuals to oppose or challenge police action without thereby

risking arrest is one of the principal characteristics by which we distinguish a

free nation from a police state.” City of Houston v. Hill, 482 U.S. 451, 462-63

(1987)). Courts have interpreted this principle as applied to the Florida

disorderly conduct statute to require that a defendant (1) inflict injury or tend

to incite an immediate breach of the peace, or (2) falsely report some physical

hazard so as to create a clear and present danger of bodily harm to others.

L.A.T. v. State, 650 So. 2d 214, 218 (Fla. Dist. Ct. App. 1995) (Hubbart, J.,

concurring); see W.L. v. State, 769 So. 2d 1132, 1133 (Fla. Dist. Ct. App. 2000)

(“Respondent never physically interfered with the police, never physically

threatened them in any manner, and never impeded the execution of their legal

duty. The conduct for which respondent was punished was pure speech, and is

thus protected by the First Amendment.”). Verne lacked probable cause to

arrest the Plaintiff for disorderly intoxication or disorderly conduct for purposes

of summary judgment.

The Defendants also argue that Office Verne had probable cause to

believe Buress committed the crime of Trespass on Property Other Than

Structure or Conveyance, FLA. STAT. § 810.09,2 when he “ignored commands to

not enter the venue and then refused to leave the venue after multiple

commands once he was inside.” (Def. Officers’ Mot. Summ. J. at 14.) The

statute states that a trespass is committed “[i]f the offender defies an order to

leave, personally communicated to the offender by the owner of the premises or

by an authorized person.” FLA. STAT. § 810.09.

The Court again finds sufficient debate regarding the underlying facts to

deny summary judgment. Buress claims that he “complied immediately” with

Officer Verne’s orders (even if they were not in fact authorized) and therefore

never defied any order as required by the trespass statute. (Pl.’s Resp. to

Officers’ SOMF ¶ 20.) Furthermore, even if Officer Verne subjectively believed

himself to have authorization, the relevant inquiry is objective. See Williams v.

Aguirre, 965 F.3d 1147, 1162 (11th Cir. 2020). A reasonable officer would not

have believed himself to have authorization to order a bar patron to leave the

premises without checking for the required affidavit or speaking to

management. Even if such action would be reasonable under certain

circumstances, the facts according to Buress do not reflect any such

circumstances. Buress maintains that he entered the area without exhibiting

any unusual behavior that would provide grounds for his removal. (Pl.’s Resp.

to Officers’ SOMF ¶ 19.)

Finally, Officer Verne argues that Buress’s resistance to his arrest

supported probable cause. (Def. Officers’ Mot. Summ. J. at 15.) This argument

fails because Buress’s resistance cannot justify probable cause for the arrest

itself. See Exford v. City of Montgomery, 887 F. Supp. 2d 1210, 1224 n.7 (M.D.

Ala. 2012) (“Resisting arrest quite obviously could not serve as probable cause

for initiating . . . arrest—that would put the cart before the horse.”).

Nor were the elements for resisting arrest without violence met in this

case. The statute reads: “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 a misdemeanor....” FLA. STAT. §

843.02. Because Officer Verne lacked probable cause to arrest in the first

place, Buress did not resist him “in the lawful execution” of a legal duty.

Resisting arrest without violence could not provide arguable probable cause

that would entitle Officer Verne to qualified immunity for Buress’s arrest.

2 The Plaintiff argues in his motion that “Section 810.09 is inapplicable because the bar that

Plaintiff entered is a ‘structure’ as defined in Section 810.011(1).” (Pl.’s Resp. to Def. Officers’

Mot. Summ. J. at 11, n.5; Def. Officers’ Reply at 3-4.) The Court’s conclusion would be the

same under either statute because Buress neither refused nor defied orders under his version

of events, nor would a reasonable police officer have believed himself to have authorization to

order Buress’s departure under the undisputed facts with all inferences drawn in favor of the

Plaintiff.

(b) The Plaintiff has raised a genuine dispute of material fact regarding

whether Officer Verne violated clearly established First Amendment

rights by arresting the Plaintiff for his protected speech.

Absent probable cause, the law is “clearly established” that police officers

may not retaliate against citizens for exercising their Free Speech rights.

Bennett v. Hendrix, 423 F.3d 1247, 1255-56 (11th Cir. 2005) (“[The Eleventh

Circuit] 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.”).

To state a First Amendment retaliation claim, a plaintiff must establish

“first, that his speech or act was constitutionally protected; second, that the

defendant's retaliatory conduct adversely affected the protected speech; and

third, that there is a causal connection between the retaliatory actions and the

adverse effect on speech.” Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir.

2005). “A plaintiff suffers adverse action if the defendant's allegedly retaliatory

conduct would likely deter a person of ordinary firmness from the exercise of

First Amendment rights.” Id. at 1254. To establish causation, a plaintiff must

generally show lack of probable cause and that the retaliation was a

substantial or motivating factor behind the arrest. See DeMartini v. Town of

Gulf Stream, 942 F.3d 1277, 1296 (11th Cir. 2019) (quoting Nieves v. Bartlett,

139 S. Ct. 1715, 1725 (2019)).

The Plaintiff’s First Amendment claim survives summary judgment.

Using the Plaintiff’s version of events, and as discussed above with respect to

disorderly conduct, none of his speech fell outside the scope of First

Amendment protections. Second, an arrest would certainly deter the vast

majority of people from exercising their First Amendment rights, especially with

respect to criticisms of police conduct. Finally, as discussed in detail above,

Officer Verne lacked probable cause to arrest the Plaintiff and there is a lively

debate between the parties over the material facts with respect to Officer

Verne’s motivations for arresting the Plaintiff. Summary judgment is denied for

Claim 2.

(2) The Plaintiff’s state law claims against Officer Verne may proceed.

Officer Verne is not entitled to immunity from the state law malicious

prosecution and false arrest claims because a genuine issue of material fact

exists as to whether Officer Verne acted in bad faith, maliciously, or wantonly.

Furthermore, the Plaintiff has provided sufficient evidence for the state-law

malicious prosecution claim to survive summary judgment.

a. Officer Verne is not entitled to immunity from the state law claims.

A police officer is immune from individual liability for on-the-job torts as

long as he did not act in bad faith, maliciously, or wantonly. See FLA. STAT. §

768.28(9)(a). If a reasonable jury could conclude based on the evidence that the

officer acted with “the subjective intent to do wrong,” the officer is not entitled

to immunity. Baxter v. Roberts, 54 F.4th 1241, 1272 (11th Cir. 2022) (quoting

Peterson v. Pollack, 290 So. 3d 102, 109 (Fla. Dist. Ct. App. 2020).

The Court concludes that Officer Verne is not entitled to immunity under

Florida’s sovereign immunity statute because the Plaintiff has provided

sufficient facts to allow a reasonable jury to conclude that Officer Verne acted

in bad faith, maliciously, or wantonly by arresting Buress without probable

cause. In particular, Buress points to Officer Verne’s reporting in his arrest

affidavit, which could reflect a willfully fabricated version of events depending

on the weight given to the conflicting evidence, (Pl.’s Resp. to Officers’ SOMF ¶

63), and further potential misstatements made to the prosecutor who

ultimately decided not to prosecute the case. (See id. ¶¶ 40, 64.) In

combination with Officer Verne’s comments at the scene, a reasonable jury

could conclude that he acted wantonly if not maliciously and he therefore does

not enjoy sovereign immunity.

b. The state-law malicious prosecution claim is supported by sufficient

evidence to survive summary judgment.

The elements of state-law malicious prosecution are: (1) an original

judicial proceeding against the plaintiff was commenced; (2) the defendant was

the legal cause of the proceeding; (3) the termination of the original proceeding

was in the plaintiff’s favor; (4) there was an absence of probable cause for the

original proceeding; (5) there was malice on the part of the defendant; and (6)

the plaintiff suffered damages. Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla.

Dist. Ct. App. 2002).

The Defendants argue that the Plaintiff’s malicious prosecution claim

cannot succeed because Officer Verne had probable cause and the Plaintiff has

not presented evidence on potential malice on the part of Officer Verne. (Def.

Officers’ Mot. Summ. J. at 20-21.) Regarding probable cause, the Court rejects

Officer Verne’s argument for the reasons set out above with respect to qualified

immunity. On evidence of malice, the Court observes that “legal malice is

sufficient and may be inferred from, among other things, a lack of probable

cause.” Durkin, 814 So. 2d at 1248. The Court also finds that a reasonable jury

could find malice using the same evidence relevant to state sovereign

immunity, including the potentially willful fabrication of evidence. (Pl.’s Resp.

to Officers’ SOMF ¶ 63.)

B. Officer Villegas is entitled to qualified immunity on the Plaintiff’s

claim under 42 U.S.C. § 1983 for failure to intervene.

Officer Villegas argues that he is also entitled to qualified immunity for

two reasons—first, because Officer Verne had arguable probable cause to

arrest Buress, and second, because Officer Villegas did not sufficiently

participate in Buress’s arrest or have the necessary knowledge to give him

notice that Officer Verne lacked probable cause for the arrest. (Officers’ Mot.

Summ. J. at 16-17.) Because the Court has already addressed whether Officer

Verne’s warrantless arrest lacked arguable probable cause, the Court need only

address Officer Villegas’ role in the arrest and knowledge of the circumstances.

“It is clear that if a police officer, whether supervisory or not, fails or

refuses to intervene when a constitutional violation such as an unprovoked

beating takes place in his presence, the officer is directly liable under Section

1983.” Tarpley, 212 F. Supp. 3d at 1285. “But the Eleventh Circuit has taken a

decidedly more circumscribed view with respect to an officer’s duty to intervene

in a false arrest.” Rebalko v. City of Coral Springs, 552 F. Supp. 3d 1285, 1318

(S.D. Fla. 2020) (Altman, J.) (emphasis in original). Instead, when a failure to

intervene claim is based on an accusation of false arrest, “unless the non-

intervening officer ‘was part of the chain of command authorizing the arrest

action,’ the Eleventh Circuit has held that ‘[m]erely being present with the

arresting officers at the scene is not enough.’” Id. (quoting Brown v. City of

Huntsville, 608 F.3d 724, 737 (11th Cir. 2010)). Nor must non-arresting officers

investigate the basis of another officer’s arrest. Wilkerson v. Seymour, 736 F.3d

974, 980 (11th Cir. 2013).

Based on Officer Verne’s body-worn camera footage and Buress’s version

of events, Officer Villegas did not have sufficient notice that Officer Verne

lacked probable cause to justify depriving him of qualified immunity for failure

to intervene. Neither the pre-arrest events nor the arrest itself took place in the

presence of Office Villegas. (See Pl.’s Resp. to Officers’ SOMF ¶ 30.) The first

time Officer Villegas appeared on the scene was after Buress was already in

handcuffs and Officer Villegas has testified that at the time had no reason to

doubt that Officer Verne had a basis to arrest Buress. (Officers’ SOMF ¶ 36;

Pl.’s Resp. to Officers’ SOMF ¶ 36.) He had no knowledge of the reason for the

arrest but had merely respondedto Officer Verne’s request for backup,

(Officers’ SOMF ¶¶ 29-30; Pl.’s Resp. to Officers’ SOMF ¶ 30). Officer Villegas

was entitled to assume that Officer Verne had acted “in a constitutional

manner and in good faith.” See Wilkerson, 736 F.3d at 980. Officer Villegas had

no duty to investigate the basis of the arrest at that stage and merely assisted

with moving Buress to the patrol car. (Pl.’s Resp. to Officers’ SOMF ¶¶ 32, 33,

35.) The Plaintiff does not argue that Officer Villegas participated further in the

arrest or detention after having received additional information about the basis

for the arrest (or lack thereof). See Jones v. Cannon, 174 F.3d 1271, 1283-84

(11th Cir. 1999).

Buress’s proclamations to Officer Villegas that “I haven’t done anything”

and that Officer Verne was “just salty that [the Plaintiff] roasted his ass” were

insufficient to overcome the presumption that the arrest was valid. (See Pl.’s

Resp. to Officers’ SOMF ¶¶ 33, 54, 59.) The Plaintiff was visibly intoxicated,

and Officer Verne provided trespass and disorderly intoxication as the

underlying charges. (Id. ¶¶ 32, 62.) Even reading the facts in the light most

favorable to the Plaintiff, Officer Villegas did not violate the Plaintiff’s

constitutional rights. Officer Villegas is entitled to qualified immunity and the

Officers’ Motion for Summary Judgment is therefore granted with respect to

Count 3.

C. The City is not entitled to summary judgment on the Plaintiff’s

Monell claim under 42 U.S.C. § 1983.

Finally, the City argues that the Plaintiff has failed to establish a genuine

dispute as to material facts regarding the existence of a policy, custom, or

procedure that would support Section 1983 liability under the Supreme Court’s

decision in Monell v. Department of Social Services of New York, 436 U.S. 658

(1978), against the City for Officer Verne’s conduct.

To demonstrate municipal liability, Buress must show (1) that his

constitutional rights were violated; (2) that the City of Miami had a practice or

custom that constituted deliberate indifference to that constitutional right; and

(3) that the custom caused the violation. See Favors v. City of Atlanta, 849 Fed.

Appx. 813, 821 (11th Cir. 2021) (quoting McDowell v. Brown, 392 F.3d 1283,

1289 (11th Cir. 2004)). “[A] plaintiff may establish a policy or custom exists by

showing a ‘persistent and wide-spread practice’ and the government’s actual or

constructive knowledge of that practice.” Depew v. City of St. Marys, 787 F.2d

1496, 1499 (11th Cir. 1986). “[R]andom acts or isolated incidents are

insufficient to establish a custom or policy.” Id. “For example, even where a

municipality provides rules and regulations for the operation of its police

department, if those rules are repeatedly violated and the municipality has

knowledge of the conduct but fails to rectify the situation then it may be liable.

Id. at 1499 (“The continued failure of the [municipality] to prevent known

constitutional violations by its police force is precisely the type of informal

policy or custom that is actionable under section 1983.”). “A municipality’s

failure to correct the constitutionally offensive actions of its police department

may rise to the level of ‘custom or policy’ if the municipality tacitly authorizes

these actions or displays deliberate indifference towards the police

misconduct.” Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987) (internal

citations omitted). “The causation prong asks whether the injury would have

been avoided ‘had the employee been trained under a program that was not

deficient in the identified respect.’” Favors, 849 Fed. Appx. at 821 (quoting City

of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989)). We address the second

and third elements of the Monell claim because, as discussed above, the

Plaintiff has established constitutional violations on the part of Verne for

purposes of summary judgment.

The evidence on the record regarding the City of Miami’s alleged

deliberate indifference to constitutional violations creates a triable issue of

fact.3 The Plaintiff has provided evidence that, if believed, could establish that

the City knew of and ignored constitutional violations similar to those alleged

in this case. The Plaintiff provides evidence including a Department of Justice

report from 2003 finding that the Miami Police Department had a pattern of

unlawful detentions, twenty examples of complaints regarding relevant police

conduct from 2015 to 2018, and evidence of the City settling similar claims in

civil litigation. (Pl.’s Resp. to Def. City’s Mot. Summ. J. at 4-7; Pl.’s Resp. to

Def. City’s SOMF ¶¶ 74-93; 97-98.) The City disputes the significance of each of

these pieces of evidence, but the Court may not assign weight to various

evidence at the summary judgment stage. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986); Def. City’s SOMF ¶¶ 41-49. Summary judgment

must be denied because a reasonable factfinder could conclude that the City

had at least constructive notice of police officers making arrests of the kind

alleged here based on the evidence provided by the Plaintiff.

With respect to deliberate indifference, there is again significant genuine

dispute over material facts. The Plaintiff points to the City’s designee on the

police department’s disciplinary process testifying that the City as a rule does

not investigate false arrests unless accompanied by some other misconduct

3 The Court finds that sufficient dispute regarding material facts exists even without the

additional support of the Plaintiff’s expert report, but notes that the Defendant City’s argument

that the Court should not consider the report because it is inadmissible is unpersuasive. The

City principally relies on Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003), decided before Rule

56 was amended to include “other materials” in the list of documents reviewable by courts on

summary judgment. The Court agrees with other district courts that the report may be

considered at summary judgment because there is no indication that the report is not “capable

of being reduced to admissible form at trial.” Jones v. Coty Inc., 362 F. Supp. 3d 1182, 1194

n.5 (S.D. Ala. 2018); see Guantanamera Cigars Co. v. SMCI Holding, Inc., No. 21-cv-21714,

2022 WL 1288742, at *3 (S.D. Fla. Apr. 29, 2022); Colonial Pipeline Co., Inc. v. Ceco Pipeline

Services Co., Inc., No. 2:19-cv-1334, 2022 WL 4283098, at *7-10 (N.D. Ala. 2022).

allegation. (Pl.’s Resp. to Def. City’s SOMF 9 4 94-96.) Further, the Plaintiff

argues that an incident at a bar about one year before the Plaintiffs arrest took

place shows the City’s failure to act on Officer Verne’s misconduct. (Pl.’s Resp.

to Def. City’s Mot. Summ. J. at 15; Pl.’s Resp. to Def. City’s SOMF 4 § 54-55;

Def. City’s SOMF 4§ 54-55.) The Plaintiff asserts that Officer Verne attacking a

civilian for calling him a “pig” went unpunished. (Jd.) When viewing these facts

in the light most favorable to the Plaintiff, they may not clear the evidentiary

hurdle by a lot, but by enough to defeat summary judgment.

Third and finally, there is sufficient dispute over whether the City’s

behavior caused the violations against the Plaintiff. The parties disagree about

whether Officer Verne received training and whether a lack of training caused

any constitutional violation. Accepting the facts as Plaintiff tells them on

summary judgment, Officer Verne himself testified that he never received

training that “an individual who is yelling and cursing can’t be arrested for

merely yelling and cursing,” and he possessed a 60-70% proficiency score on

probable cause determinations in the months leading up to the Plaintiffs

arrest. (Pl.’s Resp. to Def. City’s SOMF ¥ 101.) The City denies that Verne did

not receive relevant training and argues that regardless of training, Officer

Verne understood probable cause and therefore the City’s training program

could not have caused the violation (Def. City’s Reply SOMF 4 100.) Given this

dispute, a trier of fact, not the Court, must determine whether the City’s

actions (or failure to act) was the “moving force” behind Office Verne’s arrest of

the Plaintiff. See Vineyard, 990 F.2d at 1212; The Court therefore denies the

City of Miami’s motion for summary judgment.

4. Conclusion

For the reasons stated above, the Court denies the Defendant officers’

motion for summary judgment with respect to Officer Verne (Counts 1, 2, 5,

and 6) and grants the Defendant officers’ motion for summary judgment with

respect to Officer Villegas (Count 3). The Court denies the Defendant City of

Miami’s motion for summary judgment (Count 4). (ECF Nos. 121, 124.)

Done and ordered at Miami, Florida on August 30, 2023.

Robert N. Scola, Jr.

United States District Judge