Hannibal Buress v. Elio Villegas

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12131

Non-Argument Calendar

____________________

HANNIBAL BURESS,

Plaintiff-Appellee,

versus

CITY OF MIAMI, et al.,

Defendants,

ELIO VILLEGAS,

Defendant-Appellant.

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2 Opinion of the Court 21-12131

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cv-23078-MGC

____________________

Before NEWSOM, BRASHER, and BLACK, Circuit Judges.

PER CURIAM:

This case arises from the arrest of Hannibal Buress for disor-

derly intoxication. Buress brought a lawsuit against the City of Mi-

ami, Miami Police Officer Luis Verne, and Miami Police Officer

Elio Villegas, alleging violations of 42 U.S.C. § 1983 for false arrest,

retaliatory arrest, failure to intervene, and unlawful policy and

practice, as well as state law claims for malicious prosecution and

false arrest. This appeal concerns Count III of Buress’s First

Amended Complaint, alleging Officer Villegas failed to intervene

in a false arrest. Villegas contends the district court erred in deny-

ing his motion to dismiss Count III based on qualified immunity.

After review, 1 we affirm the district court.

1 We review the denial of qualified immunity de novo. Wilkerson v. Sey-

mour, 736 F.3d 974, 977 (11th Cir. 2013).

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21-12131 Opinion of the Court 3

I. BACKGROUND

A. Factual Background

This appeal concerns whether Villegas is entitled to qualified

immunity on Buress’s claim that Villegas failed to intervene in a

false arrest. We recount the facts as stated in Buress’s first amended

complaint, including the facts leading up to Villegas’s participation

in Buress’s arrest, to put the relevant facts in context. We consider

only the alleged facts after Villegas arrived on the scene in deciding

this appeal.

On December 9, 2017, Buress, a stand-up comedian and ac-

tor, was visiting Miami. Buress was socializing and drinking with

friends at a venue when his phone battery died. Buress left the

venue around 9:00 p.m. and began walking toward his hotel.

While walking, Buress saw Officer Verne and requested that Verne

call Buress an Uber in exchange for $20, but Verne refused the re-

quest. After Verne declined Buress’s request, Buress observed

Verne, who was on duty and wearing his Miami Police Depart-

ment uniform, interacting with and kissing young women who

were leaving a club. Buress told Officer Verne “you’re over there

kissing [women] but can’t call me an Uber?” Buress asserts he in-

tended the statement as a joke.

Verne responded to Buress’s joke by ordering Buress to

leave the street. Buress asserts he was at no point “aggressive,

threatening, or behaving in a manner suggesting that he was a

threat,” but he nevertheless complied with Verne’s orders and

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entered a bar in search of a phone charger or another patron willing

to call an Uber for him. Verne followed Buress into the bar and

ordered Buress to leave the bar, asserting Buress was too drunk to

be on the premises. Buress was confused and asked Verne, “if I

can’t be on the street, where do you want me to be?” Verne re-

sponded by ordering Buress to leave the bar.

Buress complied and left the bar. Once Buress and Verne

were outside the bar, Verne turned on his body camera and or-

dered Buress to leave. Buress walked away from Verne, but then

stopped and turned around, saying into the body camera, “Hey it’s

me. What’s up? This cop is stupid as fuck.” Buress was backing

away from Verne while making the statement. Verne instructed

Buress to “get out of here,” but then changed his mind. Verne then

ordered Buress to put his hands behind his back, grabbed Buress by

the arms, and placed handcuffs on Buress.

While Buress was being detained, Buress asked Verne mul-

tiple times to explain what he was being charged with. Verne sug-

gested Buress was “resisting,” but Buress claims at no time did he

resist Verne’s attempt to arrest him. During this time, Buress en-

countered three fans and encouraged them to record the encoun-

ter. The fans began recording and Verne told them to “get out of

here.” Buress repeatedly asked Verne what his charges were, and

Verne refused to answer, stating “you’ll find out, I’m going to put

it in writing.” Buress requested Verne read him his rights, and

Verne responded, “I don’t have to read you anything.” Verne then

stated, “I told you about seven times to leave and you refused to

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leave. Learn how to leave.” Buress claims he was attempting to

leave when he was detained.

The alleged facts relevant to this appeal begin here. Officer

Villegas arrived at the scene and joined Verne’s interaction with

Buress. Buress asserts that when Villegas arrived, it was apparent

Buress was not trespassing, threatening, or causing a disturbance.

Villegas witnessed Buress’s confusion and distress over the basis for

his detention and Buress told Villegas, “I haven’t done anything.”

Villegas looked in Verne’s direction, but did not inquire as to the

legitimacy of Buress’s detention.

Villegas began to actively participate in Buress’s detention.

Buress asked Verne and Villegas if he was under arrest, and Verne

replied, “Did I tell you you were under arrest?” Villegas then put

his hand on Buress’s shoulder and said, “Let’s go.” While Villegas

began escorting Buress to the police car, Villegas appeared to turn

on his body camera. 2 Villegas and Verne escorted Buress to a

nearby police car, each holding one of Buress’s arms. When they

arrived at the police car, Villegas told Buress to lean up against the

car.

Buress continued to ask the officers if he was being arrested

and the basis for his arrest. Villegas eventually replied, “You’re be-

ing detained right now.” Verne asserted Buress was being detained

2 The footage from the body camera was not before the district court when

the motion to dismiss was decided, and we do not consider the footage in our

disposition of this appeal.

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for trespassing and disorderly intoxication, and Villegas repeated

that Buress was being detained for disorderly intoxication. During

the exchange, Verne pushed Buress against the police car and

ripped his shirt.

As Villegas attempted to force Buress into the police car by

pushing his chest, Buress stated in reference to Verne, “He’s just

salty that I roasted his ass.” Villegas paused, then looked at Verne,

who replied, “Yeah, I am.” Buress asserts that with these words,

Verne confirmed that his detention and arrest of Buress “was un-

lawful and retaliatory.” Buress expressed to Villegas multiple times

that the officers lacked probable cause. At no point did Villegas ask

for further information from Verne about the legitimacy of the de-

tention or arrest. Instead, Villegas continued to force Buress into

the police car.

B. Procedural Background

Buress filed his original complaint against the City of Miami,

Verne, and Villegas on July 24, 2020. Villegas moved to dismiss the

failure to intervene count against him, and the district court

granted the motion to dismiss without prejudice.

Buress then filed his first amended complaint against the

City of Miami, Verne, and Villegas. As to Villegas, he alleged fail-

ure to intervene, and Villegas moved to dismiss based on qualified

immunity. The district court held a hearing, and orally denied Vil-

legas’s motion to dismiss for the following reasons:

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[The complaint] sufficiently pleads that Officer Ville-

gas, who I have identified as officer number two, par-

ticipated in and had knowledge of the alleged uncon-

stitutional nature of the plaintiff’s arrest. That’s in

paragraphs 28 through 37. He alleges that Officer Vil-

legas arrived on the scene as Officer Verne was arrest-

ing the plaintiff and participated in that arrest.

He also alleges that he told Officer Villegas that the

arrest was unjustified and that Officer Villegas wit-

nesses Officer Verne acknowledge that he was only

arresting Mr. Buress because Mr. Buress had roasted

him.

Now, of course, at this juncture I have to construe the

facts as favorable to the plaintiff, and I find the plain-

tiff has sufficiently pled that Officer Villegas had

knowledge of the alleged unconstitutional nature of

the arrest and participated in that arrest. Therefore, I

deny the motion to dismiss Count 3, and an order will

enter.

Villegas filed a timely interlocutory appeal.

II. DISCUSSION

We review the denial of a motion to dismiss de novo. Keat-

ing v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). Under such

review, to determine whether the complaint sufficiently alleges a

violation of a clearly established constitutional right, we are limited

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to reviewing “the four corners of the complaint,” must accept the

alleged facts as true, and draw all reasonable inferences in favor of

the plaintiff. Id.

“Under the doctrine of qualified immunity, government of-

ficials acting within their discretionary authority are immune from

suit unless the official’s conduct violates clearly established federal

statutory or constitutional rights of which a reasonable person

would have known.” Id. (quotation marks and alterations omit-

ted).

In Jones v. Cannon, we held that where an officer was pre-

sent during an arrest and knew the arresting officer lacked reason-

able basis for arguing probable cause, the non-arresting officer

could be liable under § 1983 if he was sufficiently involved in the

arrest. 174 F.3d 1271, 1283-84 (11th Cir. 1999). We later clarified

that “a participant in an arrest, even if not the arresting officer, may

be liable if he knew the arrest lacked any constitutional basis and

yet participated in some way.” Wilkerson v. Seymour, 736 F.3d

974, 980 (11th Cir. 2013). Thus, if an officer knows that an arrest is

unconstitutional, but yet participates in the arrest, that officer may

be liable. See id.

Applying this case law to the facts as alleged in the first

amended complaint, the district court did not err in denying quali-

fied immunity to Villegas. Drawing all reasonable inferences in

Buress’s favor, Buress has sufficiently alleged that Villegas knew

there was no constitutional basis for the arrest and participated in

it anyway. See Keating, 598 F.3d at 762. Specifically, when Buress

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stated in reference to Verne that “[h]e’s just salty that I roasted his

ass,” and Verne replied, “[y]eah, I am,” that allegation could be

read, in the light most favorable to Buress, that Villegas knew

Verne was arresting Buress for a retaliatory purpose. See Nieves v.

Bartlett, 139 S. Ct. 1715, 1722 (2019) (noting that, generally, the

First Amendment prohibits government officials from retaliating

against individuals for engaging in protected speech). This state-

ment, combined with Buress’s allegations that he told Villegas that

he had not done anything and that the arrest lacked probable cause,

as well as the fact that Villegas was not present to witness the be-

ginning stages of the arrest, is sufficient to state a claim for failure

to intervene. See Wilkerson, 736 F.3d at 980; Jones, 174 F.3d at

1283-84.

We note this case is different than Wilkerson, where we

granted qualified immunity to an officer, Parker, who “lacked the

requisite information to put him on notice that an unlawful arrest

was occurring or had occurred.” Wilkerson, 736 F.3d at 980. Par-

ker arrived on the scene approximately three minutes after the ar-

resting officer, Seymour, had completed the arrest and Wilkerson

was already in the back of the patrol car. Id. at 977. At that time,

Seymour gave Parker a detailed explanation for why he arrested

Wilkerson. Id. In contrast, the complaint here alleges Villegas ac-

tively participated in the arrest once he arrived on the scene

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following Buress’s initial detainment by Verne. 3 While Verne

stated to Buress that he was being detained for trespassing and dis-

orderly conduct, he gave no other facts to support the arrest.

Verne then agreed that he was “just salty” that Buress “roasted”

him. At this stage of the proceedings, these allegations are enough

to allege Villegas was aware there was no constitutional basis for

the arrest but still participated.

While we agree with Villegas that the statement could also

be read as an admission that Verne was upset at being “roasted” by

Buress while simultaneously having a lawful reason to arrest him

for disorderly intoxication, we must make all reasonable inferences

in Buress’s favor at the motion to dismiss stage. We note there is

body camera evidence that may clarify Villegas’s actions. Although

Buress may or may not be able to establish at summary judgment

or trial that Villegas was aware there was no constitutional basis

for the arrest but still participated in it, we conclude that Buress has

pleaded the minimum sufficient facts to survive a motion to dis-

miss as to Villegas.

AFFIRMED.

3 We note there is a factual dispute regarding when Buress was considered

“arrested” versus being “detained,” but at this stage of the proceedings we ac-

cept the plaintiff’s allegations.