Hannibal Buress v. Luis Verne

USCA11 Case: 23-12895 Document: 40-1 Date Filed: 08/06/2024 Page: 1 of 13

[DO NOT PUBLISH]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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____________________

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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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.

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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

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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

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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

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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

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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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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

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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

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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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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

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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.