Petition for Writ of Certiorari — Bishop v. United States, 131 Ct. Cl. 820 (1955) (No. 98-53)

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AN TIES De

No._ Bg 53 yn 2.1998

OFF

In The CE OF THE CLERK

Supreme Court of the United States

October Term, 1997

MICHAEL C. GOLD,

Petitioner,

VS.

CITY OF MIAMI, a Florida municipal corporation;

CALVIN ROSS, Individually; RAFAEL SUAREZ,

Individually; JORGE PEREZ, Individually;

and WILLIAM CAMPBELL, Individually,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

— 4

PETITION FOR WRIT OF CERTIORARI

— ¢

James K. Green, Esq.

One Clearlake Centre,

Suite 1602

250 S. Australian Avenue

West Palm Beach, Florida

33401

(561) 659-2029

ANDREW H. Kayton, Esa.

American Civil Liberties

Union Foundation of

Florida, Inc.

3000 Biscayne Blvd.,

Suite 215

Miami, Florida 33137

(305) 576-2337

Joe. S. Perwin, Esa.

Counsel of Record

PODHURST, ORSECK,

JOSEFSBERG, EATON,

MeaApow, OuN &

PERWIN, P.A.

25 West Flagler Street,

Suite 800

Miami, Florida 33130

(305) 358-2800/

Fax (305) 358-2382

CHarLes M. Baron, Esa.

633 N.E. 167th Street,

Suite 1201

North Miami Beach,

Florida 33162

(305) 770-1410

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

In holding that the individual defendant police offi-

cers had qualified immunity from personal liability under

42 U.S.C. § 1983, for their concededly illegal arrest of

Plaintiff Michael Gold for criticizing them without caus-

ing or threatening a disturbance, whether the Court of

Appeals:

1) applied the wrong legal standard, in conflict with

the decisions of this Court, in its application of the

“clearly established” test of Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); and

2) created conflict with the decisions of at least five

other Courts of Appeals on analogous facts.

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI............ 1

CJSC ESE WRUAAGS «oo x's CAN RR a ENO SNe A RAS MA 1

FR ORA PON 6 5 vias ci vee eRe ee beh caer eees 1

CONSTITUTIONAL AND STATUTORY PROVI-

SER PEGD APE VR MAY AU? 8 bo Sonn cen dose wes eas nee 2

STATEMEN: OF THE CASE. ci 545s eee eee es 2

i. The Proceedings Beiow 5... is asses accewens 2

he, BE PONS 6s evakbaks bieie seks tes eee 4

REASONS FOR GRANTING THE PETITION....... 5

1. The Framework for Analysis................. 6

2. The Arrest of Michael Gold Violated His First

and Fourteenth Amendment Rights........... 8

3. The Court of Appeals Applied the Wrong Legal

Standard for Analyzing Qualified Immunity, by

Requiring that the Very Action in Question

Have Been Previously Held To Be Unlawful by

a State Court; and Its Holding Conflicts With

the Decisions of Several Other Circuit Courts of

PB io rns EN da Kall Se oe ea oe 12

soar Sang

ill

TABLE OF AUTHORITIES

Page

Cases

Adams v. St. Lucie County Sheriff's Dept., 998 F. 2d

CUE Pe een csc Ad cakhs pas scvavesciers 12

Anderson v. Creighton, 483 U.S. 635 (1987) ....13, 14, 16

B.R. v. State, 657 So. 2d 1184 (Fla. lst DCA 1995).... 19

Bailey v. Andrews, 811 F. 2d 366 (7th Cir. 1987)...... 18

Bivens v. Six Unknown Federal Narcotics Agents, 403

ea ee cae Wee bk 4 hbo de 0 4 oa 16

Board of Regents v. Roth, 408 U.S. 564 (1972)......... 18

Buffkins v. City of Omaha, 922 F. 2d 465 (8th Cir.

SR DE Ee a ra aa 17

Chaplinsky v. State of New Hampshire, 315 U.S. 568

CRETE r Cer Kawa bWaulew wed eee wadeeiseeenres 8, 9

City of Houston v. Hill, 482 U.S. 451 (1987) .......... 10

Clanton v. State, 357 So. 2d 455 (Fla. 2d DCA 1978) .... 19

County of Sacramento v. Lewis, __ U.S. ___ (1998)

OP ana d by 5 sb cde e Vow soe pee sey 6

D.C.E. v. State, 381 So. 2d 1097 (Fla. lst DCA 1979) .... 19

Davis v. Scherer, 468 U.S. 183 (1984)................. 18

Duran v. City of Douglas, 904 F. 2d 1372 (9th Cir.

EET IES enn re ane ae 18

Enlow v. Tishomingo County, 962 F. 2d 501 (5th Cir.

RE OR ISTE ER a rae 17

Gainor v. Rogers, 973 F. 2d 1379 (8th Cir. 1992)...... 17

Gonzales v. City of Belle Glade, 287 So. 2d 669 (Fla.

I RE SRG A 5 65 65h 4.0 KA tava 0 «os 046s ae cy 18

TABLE OF AUTHORITIES - Continued

Gooding v. Wilson, 405 U.S. 518 (1972)............

Graham v. Connor, 490 U.S. 386 (1989)............

Guffey v. Wyatt, 18 F. 3d 869 (10th Cir. 1994).....

Hamilton v. Cannon, 80 F. 3d 1525 (11th Cir. 1996) ..

Harbin v. State, 358 So. 2d 856 (Fla. lst DCA 1978)...

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ..3, 4, 7,

Hunter v. Bryant, 592 U.S. 224 (1991). ........5.5.

Jenkins v. Talladega City Board of Education, 115 F.3d

821 (11th Cir. 1997), cert. denied, _ U.S. __, 118

Se GR SES, TO Ea Be ee at LA hocks veeees

Knox v. Southwest Airlines, 124 F. 3d 1103 (9th Cir.

eh oe a ee ee a ee ee ee ee ee Se ee ee oe a ae ee a fe

K.S. v. State, 697 So. 2d 1

K.Y.E. v. State, 557 So. 2d 956 (Fla. lst DCA 1990) ....

L.A.T. v. State, 650 So. 2d 214 (Fla. 3d DCA 1995) ....

L.J.M. v. State, 541 So. 2d 1321 (Fla. lst DCA 1989) .

Lewis v. City of New Orleans, 408 U.S. 913 (1972) .

Lewis v. City of New Orleans, 415 U.S. 130 (1974) .

MacKinney v. Nielsen, 69 F. 3d 1002 (9th Cir. 1995)...

Miller v. State, 667 So. 2d 325 (Fla. lst DCA 1995) ..

Mitchell v. Forsyth, 472 U.S. 511 (1985) ........ ‘f

Morris v. State, 335 So. 2d 1 (Fla. 1976) ..........

75 (Fla. 3d DCA 1997)...

TABLE OF AUTHORITIES - Continued

Norwell v. City of Cincinnati, 414 U.S. 14 (1973)....... 9

Phillips v. State, 314 So. 2d 619 (Fla. 4th DCA 1975) .... 19

Screws v. United States, 325 U.S. 91, 89 L. Ed. 1495,

65 S. Ct. 2031, 162 ALR 1330 (1945) ...........005;. 15

peegert ©. Gilley, S00 US. 226 (1991)... sos cSsna ne 6, 7

Spiller v. City of Texas City, Police Dept., 130 F. 3d

CN ie Sy 8 5 ak rao es a ca ce hain 17

State v. Saunders, 339 So. 2d 641 (Fla. 1976) ......... 18

Terminello v. City of Chicago, 331 U.S. 1 (1948)........ 8

United States v. Lanier, 520 U.S. __, 117 S. Ct. __,

BOO Rie A Ge As ba 65s ka eo ee Liat n ed 4, 14

Vela v. White, 703 F. 2d 147 (5th Cir. 1983).......... 18

White v. State, 330 So. 2d 3 (Fla. 1976) .............. 18

CONSTITUTIONAL PROVISIONS

First Amendment, United States See tee

Cee Se ee En eee Pe eee Ee ere ee” a. Sor dee Mee | Se

Fourth Amendment, United States Constitution.... ae a

Fourteenth Amendment, United States Constitu-

PG ci ss ous Sa a eG Rie te PP ON Se RT a 3 18

STATUTES

Re ee ads EE SEs eo hk ie PE EAE bk ed Ls 14, 15

ace NE co lec oon CRS w wh OR es a 1

Se Ss Te Es a oss ee A SSSR SES 2, 6, 14, 16

PETITION FOR WRIT OF CERTIORARI

The petitioner respectfully prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The order of the district court, denying both the

plaintiff's and the individual officers’ motions for sum-

mary judgment on the issue of qualified immunity, is not

reported, and is reprinted in the appendix at App. 11. The

panel opinion of the United States Court of Appeals for

the Eleventh Circuit is reported at 121 F. 3d 1442, and is

reprinted in the appendix at App. 1. The order of the

Court of Appeals denying rehearing en banc, with the

dissenting opinion of the Honorable Rosemary Barkett, is

reported at 138 F. 3d 886, and is reprinted in the appendix

at App. 14.

JURISDICTION

The Court of Appeals entered its judgment on Sep-

tember 17, 1997 (App. 1). The petitioner’s timely petition

for rehearing and suggestion for rehearing en banc was

denied April 7, 1998 (App. 14). The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment, United States Constitution,

provides in relevant part: “Congress shall make no law

. abridging the freedom of speech... . ”

The Fourth Amendment, United States Constitution,

provides in relevant part: “The right of the people to be

secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be

violated. ...

The Fourteenth Amendment, United States Constitu-

tion, provides in relevant part: “ .. . Nor shall any State

deprive any person of life, liberty, or property, without

“7

due process of law. .

Section 1983, Title 42, United States Code, provides in

relevant part: “Every person who, under color of any

statute, ordinance, regulation, custom, or usage, of any

State or territory or the District of Colombia, subjects, or

causes to be subjected, any citizen in the United States, or

other person within the jurisdiction thereof to the depri-

vation of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress.”

STATEMENT OF THE CASE

1. The Proceedings Below.

This case concerns the viability of a § 1983 action for

the illegal arrest of Petitioner Michael Gola, a Florida

attorney, for loudly and profanely criticizing some Miami

police officers for failing to ticket a woman who had

parked illegally in a handicapped spot. Acknowledging

that Gold had been falsely arrested for disorderly con-

duct (App. 8), but without discussing his rights under the

First, Fourth and Fourteenth Amendments of the U.S.

Constitution, or any federal appellate decisions discuss-

ing them, the Court of Appeals held that the individual

arresting officers were entitled to qualified immunity

under the “clearly established” standard of Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1980), because, “[{a]t the time

[of the officers’ conduct], no cases clearly established that

[Gold’s] actions did not constitute legally proscribed dis-

orderly conduct” (App. 8). In support of that holding, the

Court of Appeals examined only Florida state-court deci-

sions defining disorderly conduct under Florida law

(App. 6-7). The court did not acknowledge or discuss any

decisions of this Court or of any other federal Court of

Appeal. Having exonerated the individual arresting offi-

cers, the Court of Appeals likewise immunized the

remaining individual defendant, Police Chief Calvin

Ross, on the same basis (App. 10).

The full court subsequently denied rehearing en

banc, over a lengthy dissent by Judge Barkett, a former

Chief Justice of the Florida Supreme Court (App. 14-31).

Judge Barkett argued that the First Amendment protec-

tion of Mr. Gold’s remarks is unequivocally established in

this Court’s decisions, and those of every other federal

appellate court to address the issue; that under those

decisions, “no reasonable officer could possibly have

believed that Gold’s words were criminal” (App. 16); that

this Court has held expressly that the “clearly estab-

lished” standard of Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982), does not require a history of prior holdings on

identical facts, but only “fair warning” by any measure,

see United States v. Lanier, 520 U.S. __, 117 S. Ct. __, 137

L. Ed. 2d 432 (1997); and that the Florida state-court

decisions on the subject, if relevant, also satisfy the

“clearly established” standard (App. 21-29).!

2. The Facts.

The relevant facts are stated in the panel opinion,

which we quote below (App. 2-3):

The incident giving rise to Gold’s action

occurred on October 18, 1991. On that day, Gold

pulled into a congested bank parking lot so that

his passenger could use the bank’s automated

teller machine (ATM). While waiting for a park-

ing space to open up, Gold noticed a uniformed

police officer keeping watch over the area. He

also noticed a woman who did not appear to be

handicapped walk to her car parked in a hand-

icapped space, get in, and start to drive away.

Disturbed by this, Gold yelled to the officer,

“aren't you supposed to give them a ticket for

parking in a handicapped spot?” (R.2-91 at 28.)

The officer did not respond. Gold then found a

parking space, parked his car, walked toward

the ATM, and loudly remarked to no one in

particular, “Miami police don’t do shit.” (R.2-91

at 34.)

| The case then proceeded to trial against the City of Miami,

resulting in a verdict for Gold which is currently on appeal (see

App. 8 n. 6).

Upon hearing Gold’s remark, a plainclothes

officer who had been standing in the ATM line

stated to the uniformed officer, “I think this

guys [sic] got a problem.” (R.2-91 at 36.) To this,

Gold replied, “I don’t have a problem. I’m just

saying that ‘Miami police don’t do shit.’ ”

(R.2-91 at 36.) A different plainclothes officer

then approached Gold and asked him for identi-

fication. After Gold produced his Florida

driver's license and Florida Bar membership

card, the officer headed toward the uniformed

officer’s patrol car to do a radio check on the

identification. The officer soon was joined by

the uniformed officer and the other plainclothes

officer.

Upon observing all of this, a couple in the

ATM line remarked, “I can’t believe they’re

doing this.” (R.2-91 at 40.) Gold talked to that

couple for a few minutes then approached the

three officers and asked them what was going

on. At that point, the officers arrested him for

“disorderly conduct” and asked him to put his

hands behind his back. Although Gold did so

without resistance, the officers later charged

him, along with the disorderly conduct charge,

with “resisting arrest without violence.”

REASONS FOR GRANTING THE PETITION

The Court of Appeals’ decision 1) violated the appro-

priate analytical framework by failing to address first the

constitutional underpinnings of the plaintiff’s claim; 2)

applied the wrong definition of “clearly established” by

insisting upon a controlling precedent on analogous facts

- a standard which this Court three times has found to be

inappropriate; and 3) erroneously declined to hold, under

the appropriate standard, thus creating conflict with five

other Courts of Appeals, that the officers’ arrest of

Michael Gold violated “clearly established” law. For all

three reasons, the conferral of immunity upon the indi-

vidual arresting officers was erroneous, as was the con-

ferral of immunity upon Defendant Police Chief Ross on

the same basis (see App. 10). Given the clear conflict v ith

the decisions of this Court and the other Courts of

Appeal, review by certiorari is appropriate.

1. The Framework for Analysis.

In its recent decision in County of Sacramento v. Lewis,

U.S. __ (1998) (1998 WL 259980, *4 n.5), this Court

‘reiterated the two-step analysis appropriate “in any

action under § 1983”: “[T]he first step is to identify the

exact contours of the underlying right said to have been

violated” — that is, “whether the plaintiff has alleged a

deprivation of a_constitutional right at all.” Accord,

Graham v. Connor, 490 U.S. 386, 394 (1989). That inquiry is

“la] necessary concomitant” to the second step - the

“determination of whether the constitutional right

asserted by the plaintiff is ‘clearly established’ at the time

the defendant acted. ... ” Siegert v. Gilley, 500 U.S. 226,

232 (1991), quoted in County of Sacramento v. Lewis, 1998

WL 259980, *4 n.5. The preliminary inquiry is necessary

because “even a finding of qualified immunity requires

some determination about the state of constitutional law

”?

at the time the officer acted”; and if the court eschews

that inquiry, “standards of official conduct would tend to

remain uncertain, to the detriment both of officials and

individuals.” Id. Therefore, “the better approach is to

determine the right before determining whether it was

previously established with clarity,” id. - that is, before

deciding whether the defendant is entitled to qualified

immunity because his conduct “does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982).2

In the instant case, as we have noted, the Court of

Appeals did not discuss the underlying constitutional

question, but merely found it “clear from the facts viewed

in the light most favorable to Gold that the officers did

not have actual probable cause to arrest Gold for disor-

derly conduct” (App. 8). “That said” (id.), the Court of

Appeals then held that the officers nevertheless were

entitled to a qualified immunity. In its analytical frame-

work, therefore, the Court of Appeals skipped a “neces-

sary concomitant to the determination” of the immunity

defense, Siegert v. Gilley, 500 U.S. 226, 232 (1991) - an

omission which alone should warrant reversal. In addi-

tion, as we note below, the Court of Appeals’ failure to

explore the underlying First Amendment doctrine was

the starting point of its erroneous application of the

“clearly established” standard for appraising the asserted

privilege, which application created conflict with at least

five other Courts of Appeal.

2 Both steps present questions of law for the court, Hunter v.

Bryant, 502 U.S. 224, 228 (1991); Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982), viewing the evidence in the light most favorable

to the plaintiff, Mitchell v. Forsyth, 472 U.S. 511, 528 (1985).

2. The Arrest of Michael Gold Violated His First

and Fourteenth Amendment Rights.

As Judge Barkett remarked in dissenting from the

Court of Appeals’ denial of en banc review, “Gold’s

speech is precisely the kind that lies at the core of the

First Amendment” (App. 16). As the panel opinion notes,

in the light most favorable to Gold, the evidence is that

he suggested to a police officer that a woman should be

ticketed for illegally parking in a handicapped spot; the

officer did not respond, and Mr. Gold said loudly that

“Miami police don’t do shit”; one officer remarked that

Gold appeared to have a problem; Gold answered: “I

don’t have a problem. I’m just saying that Miami police

don’t do shit”; another officer secured Gold’s driver's

license and Florida Bar membership card, and conducted

a radio check; Gold talked for a few minutes with a

nearby couple, and then approached the officers and

asked them what was happening; and the officers then

arrested him. The relevant decisions of this Court (before

the October, 1991 arrest in this case) leave no question

that Gold’s remarks were protected by the First and Four-

teenth Amendments, and that the arrest was unlawful.

After Chaplinsky v. State of New Hampshire, 315 U.S.

568, 572-74 (1941), allowing prohibition only of words

“which by their very utterance inflict injury or tend to

incite an immediate breach of the peace”; and Terminello

v. City of Chicago, 331 U.S. 1, 4-5 (1948), striking down a

statute which “permitted conviction” for speech which

“invited public dispute, or brought about a condition of

unrest,” on the ground that speech is “protected against

censorship or punishment, unless shown likely to pro-

duce a clear and present danger of a serious substantive

evil that rises far above public inconvenience, annoyance,

or unrest,” four more recent decisions unequivocally

establish the officers’ unlawful conduct. In Gooding v.

Wilson, 405 U.S. 518, 520, 522-23, 528 (1972), the Court

struck down a Georgia statute defining breach of the

peace to include “opprobrious words or abusive lan-

guage,” holding that mere “vulgar or offensive” language

does not satisfy the Chaplinsky standard of fighting

words, in the absence of any “likelihood that the person

addressed would make an immediate violent

response. ...” In Norwell v. City of Cincinnati, 414 U.S. 14,

16 (1973), in which “the petitioner was arrested and con-

victed merely because he verbally and negatively pro-

tested Officer Johnson’s treatment of him,” the judgment

was reversed for punishing “constitutionally protected

speech,” because, in the absence of “abusive language or

fighting words,” “one is not to be punished for non-

provocatively voicing his objection to what he obviously

felt was a highly questionable detention by a police offi-

””

cer.

In Lewis v. City of New Orleans, 415 U.S. 130, 132-34

(1974), the Court struck down a city ordinance making it

unlawful to “curse or revile or to use obscene or

opprobrious language toward or with reference to any

member of the city police,” as applied to the mother of an

arrest suspect who assertedly shouted profanities at the

officers, because “the proscription of the use of

opprobrious language, embraces words that do not by

their very utterance inflict injury or tend to incite an

immediate breach of the peace.” Id. at 133, quoting Good-

ing v. Wilson, 405 U.S. 518, 522 (1972).3 And in City of

Houston v. Hill, 482 U.S. 451, 461-65 & n.11 (1987), the

Court struck down as overbroad a municipal ordinance

making it unlawful to “interrupt a police officer in the

performance of his or her duties,” as applied to a pro-

tester who assertedly shouted obscenities at police offi-

cers to distract them from arresting his friend:

[T]he First Amendment protects a significant

amount of verbal criticism and challenge

directed at police officers.

* * *

The Houston ordinance . . . is not limited to

fighting words nor even to obscene or

opprobrious language, but prohibits speech that

“in any manner .. . interrupt[s]” an officer. The

Constitution does not allow such speech to be

made a crime.'!/ The freedom of individuals

verbally to oppose or challenge police action

without thereby risking arrest is one of the prin-

cipal characteristics by which we distinguish a

free nation from a police state.

* * *

3 In an earlier decision, Lewis v. City of New Orleans, 408 U.S.

913 (1972), the Court had vacated Mrs. Lewis’ original

conviction and remanded for reconsideration in light of

Gooding. Justice Powell’s concurrence opined that Mrs. Lewis’

language would have constituted fighting words if “addressed

by one citizen to another, face to face and in a hostile manner,”

“[bjut the situation may be different where such words are

addressed to a police officer trained to exercise a higher degree

of restraint than the average citizen.”

ay. . » LE some constitutionally unprotected

speech must go unpunished, that is a price

worth paying to preserve the vitality of the First

Amendment... .

... What a municipality may not do... and

what Houston has done in this case, is to

attempt to punish such conduct by broadly

criminalizing speech directed to an officer — in

this case, by authorizing the police to arrest a

person who in any manner verbally interrupts

an officer.

* * *

This Houston ordinance . . . is not narrowly

tailored to prohibit only disorderly conduct or

fighting words. . . . Although we appreciate the

difficulty of drafting precise laws, we have

repeatedly invalidated laws that provide the

police with unfettered discretion to arrest indi-

viduals for words or conduct that annoy or

offend them.

These decisions, none of them acknowledged or dis-

cussed by the Court of Appeals, clearly, unambiguously

and unequivocally declare the illegality of the defendant

officers’ arrest of Michael Gold, on the pretense that his

criticism of the officers constituted disorderly conduct.

3. The Court of Appeals Applied the Wrong Legal

Standard for Analyzing Quaiified Immunity, by

Requiring that the Very Action in Question

Have Been Previously Held To Be Unlawful by a

State Court; and Its Holding Conflicts With the

Decisions of Several Other Circuit Courts of

Appeal.

As we have noted, the Court of Appeals declared that

the plaintiff could satisfy the “clearly established” stan-

dard of Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), only

by demonstrating that “[a]t the time [of the arrest],” the

extant cases “clearly established that [Gold’s] actions did

not constitute legally proscribed disorderly conduct”

(App. 8). This insistence upon virtually identical facts in

prior cases is found in earlier Eleventh Circuit decisions.*

At least, however, those earlier decisions examined the

prior hoidings of this Court and other federal appellate

courts. In the instant case, after insisting upon a factually-

analogous precedent, the Court of Appeals then exam-

ined only state-court decisions, concluded that they were

fact-specific and therefore equivocal, and held that the

4 See, e.g., Jenkins v. Talladega City Board of Education, 115

F. 3d 821, 826 (11th Cir. 1997) (en banc) (“In short, as conceded

by the plaintiffs, neither the Supreme Court nor any court in this

circuit nor the Alabama courts, on or before May 1, 1992, had

ever actually applied the test established in [New Jersey v. T.L.O.,

469 U.S. 325 (1975)] to define a reasonable (or unreasonable)

search in the context of facts materially similar to those of this

school search”), cert. denied, __ U.S. __, 118 S. Ct. 412, 139

L. Ed. 2d 315 (1997); Adams v. St. Lucie County Sheriff's Dept., 998

F. 2d 923 (11th Cir. 1993) (en banc), adopting dissenting opinion of

Edmondson, ]., in 962 F. 2d 1563, 1575 (11th Cir. 1992) (“The facts

need not be the same as the facts of the immediate case. But they

do need to be materially similar”).

officers were entitled to a qualified immunity. As Judge

Barkett, a former Chief Justice of the Florida Supreme

Court, demonstrated in her dissent from the denial of en

banc review, the Court of Appeals applied the wrong

definition of “clearly established”; erred in failing to

examine the decisions of this Court; and misconstrued

the Florida state-court decisions in any event.

a. Defining “Clearly Established.” First, this Court has

held explicitly that the “clearly established” standard

does not require a specific precedent based upon identi-

cal or analogous facts. To be sure, in refining previous

incarnations of the qualified-immunity doctrine to elimi-

nate subjective criteria in preference for the objective

“clearly established” test in Harlow v. Fitzgerald, the Court

declined to define that phrase, noting that “[a]s in Pro-

cunier v. Navarette, 434 US [555, 565 (1978)], we need not

define here the circumstances under which ‘the state of

the law’ should be ‘evaluated by reference to the opinions

of this Court, of the Courts of Appeals, or of the local

District Court.’ ” Harlow v. Fitzgerald, 457 U.S. 800, 818,

819 n.32 (1982).

A few years later, however, in Mitchell v. Forsyth, 472

U.S. 511, 535 n.12 (1985), in the course of enforcing a

qualified immunity from liability for an illegal wiretap -

in light of the ambiguity of contemporaneous precedent

on the point — the Court emphasized that “[w]e do not

intend to suggest that an official is always immune from

liability or suit for a warrantless search merely because

the warrant requirement has never explicitly been held to

apply to a search conducted in identical circumstances.”

And two years later, in Anderson v. Creighton, 483 U.S.

635, 638, 640 (1987), after reiterating the rule that govern-

mental officials are immune “as long as their actions

could reasonably have been thought consistent with the

rights they are alleged to have violated,” the Court

added:

The contours of the right must be sufficiently

clear that a reasonable official would under-

stand that what he is doing violates that right.

This is not to say that an official action is pro-

tected by qualified immunity unless the very

action in question has previously been held

unlawful . . . but it is to say that in light of pre-

existing law the unlawfulness must be apparent.

Mitchell and Anderson leave no question that the

Court of Appeals erred in requiring an express precedent,

on analogous facts, as a condition of the “clearly estab-

lished” criterion. And if there were any doubt of that

point, as Judge Barkett noted in dissenting from en banc

denial (App. 16), it was resolved in United States v. Lanier,

520 US. __, Fi7 & Ct, tse a Se. 2a Se (1997), Sy

the Court’s application of the criminal analog of § 1983,

18 U.S.C. § 242, which the Court held to embrace the

identical standard of fair notice as § 1983. The Court of

Appeals in Lanier had held “that criminal liability may be

imposed under § 242 only if the constitutional right said

to have been violated is first identified in a decision of

[the Supreme] Court (not any other federal, or state

court), and only when the right has been held to apply in

‘a factual situation fundamentally similar to the one at

bar’” -— a standard which “[t]he Court of Appeals

regarded . . . ‘as substantially higher than the “clearly

established” standard used to judge qualified immunity’

in civil cases under [§ 1983].” 137 L. Ed. 2d at 440. In

reversing, this Court held that the civil standard is identi-

cal to the criminal standard, and that neither requires a

pre-existing precedent on analogous facts, id. at 443-46:

[T]he touchstone is whether the statute, either

standing alone or as construed, made it reason-

ably clear at the relevant time that the defen-

dant’s conduct was criminal.

We applied this standard in Screws v. United

States, 325 US 91, 89 L Ed 1495, 65 S Ct 1031, 162

ALR 1330 (1945), which recognized . . . that this

constitutional difficulty [of fair warning] does

not arise when the accused is charged with vio-

lating a right which has been made specific

either by the express terms of the Constitution

or laws of the United States or by decisions

interpreting them.”

7 . *

Nor have our decisions demanded prece-

dents that applied the right at issue to a factual

situation that is “fundamentally similar” at the

level of specificity meant by the Sixth Circuit in

using that phrase. To the contrary, we have

upheld convictions under § 241 or § 242 despite

notable factual distinctions between the prece-

dents relied on and the cases then before the

Court, so long as the prior decisions gave rea-

sonable warning that the conduct then at issue

violated constitutional rights.

* * *

In the civil sphere . . . the object of the

“clearly established” immunity standard is not

different from that of “fair warning” as it relates

to law “made specific” for the purpose of val-

idly applying § 242. The fact that one has a civil

and the other a criminal law role is of no signifi-

cance; both serve the same objective. .. . To

require something clearer than “clearly estab-

lished” would, then, call for something beyond

“fair warning.”

...[G]eneral statements of the law are not

inherently incapable of giving fair and clear

warning, and in other instances a general consti- = _

tutional rule already identified in the decisional

law may apply with obvious clarity to the speci-

fic conduct in question, even though “the very |

action in question has [not] previously been

held unlawful,” Anderson [v. Creighton, 483 U.S. |

635, 640 (1987)]. As Judge Daughtery noted in

her dissenting opinion in this case, “ ‘[t]he eas-

iest cases don’t even arise. There has never

been . . . a section 1983 case accusing welfare

officials of selling foster children into slavery; it

does not follow that if such a case arose, the

officials would be immune from damages [or

criminal] liability.”” .. . In sum, as with civil |

liability under § 1983 or Bivens [v. Six Unknown

Federal Narcotics Agents, 403 U.S. 388 (1971)], all

that can usefully be said about criminal liability

under § 242 is that it may be imposed for depri-

vation of a constitutional right if, but only if, “in

the light of pre-existing law the unlawfulness

[under the Constitution is] apparent,” Anderson,

supra, at 640, 97 L Ed 2d 523, 107 S Ct 3034.

Where it is, the constitutional requirement of

fair warning is satisfied.

These decisions leave no question of the Court of

Appeals’ fundamental error — in this and its earlier deci-

sions, see supra note 4 —- in defining “clearly established”

in terms which this Court three times has expressly

———S_ aE

rejected. The impropriety of the test now employed in the

Eleventh Circuit alone warrants this Court’s review.

b. Michael Gold’s Constitutional Right Was Clearly

Established. Given that the Court of Appeals applied the

wrong standard, failing to examine any of the extant

decisions of this Court, it is not surprising that it erred in

failing to recognize that Mr. Gold’s First Amendment

rights were clearly established at the time of his unlawful

arrest. We refer the Court to the discussion of those

decisions at pp. 8-11, supra. Nor is it surprising that the

Court of Appeals’ decision expressly and directly con-

flicts with the decision of every other Court of Appeals-to

apply the “clearly established” test to a police officer’s

arrest. See, e.g., Spiller v. City of Texas City, Police Dept., 130

F. 3d 162 (Sth Cir. 1997) (no qualified immunity for arrest-

ing a motorist who told an off-duty policeman at a gas

station to “move his damn truck”); Knox v- Southwest

Airlines, 124 F. 3d 1103 (9th Cir. 1997) (verbal exchange at

airport; demand for officer’s name and badge number;

refusal to exit immediately after being ordered to do so);

MacKinney v. Nielsen, 69 F. 3d 1002 (9th Cir. 1995) (writing

with washable chalk on public sidewalk; failure to imme-

diately stop); Guffey v. Wyatt, 18 F. 3d 869 (10th Cir. 1994)

(arrest of referee at hotly-contested high school basketball

game); Gainor v. Rogers, 973 F. 2d 1379 (8th Cir. 1992)

(arrest of person walking through downtown carrying a

large cross and distributing leaflets); Enlow v. Tishomingo

County, 962 F. 2d 501, 509-10 (5th Cir. 1992) (on plaintiff's

version, inquiry whether the sheriff had a search warrant

or an arrest warrant; taking photographs of the officers);

Buffkins v. City of Omaha, 922 F. 2d 465 (8th Cir. 1990)

iii i 9

(calling police officer an “asshole”); Duran v. City of Doug-

las, 904 F. 2d 1372 (9th Cir. 1990) (obscene gestures and

yelling profanities); Bailey v. Andrews, 811 F. 2d 366 (7th

Cir. 1987) (telling officer “I want my damn dog” and “did

you shoot my dog?”); Vela v. White, 703 F. 2d 147 (5th Cir.

1983) (walking down the street; agitated questioning

about arrest). Every one of these decisions, on analogous

facts, conflicts with the Court of Appeals’ holding in the

instant case.

c. The Florida State-Law Decisions. This conclusion is

not forestalled by the Court of Appeals’ reference to the

extant Florida state-law decisions defining the behavior

which the Florida courts believe may permissibly be pun-

ished as disorderly conduct. At the outset, we are not

certain that state-court decisions should play any role in

advising police officers of the permissibility of their con-

duct under federal law. This Court has said only that

“[s]tate law may bear upon a claim under the Due Pro-

cess Clause when the property interests protected by the

Fourteenth Amendment are created by state law.” Davis v.

Scherer, 468 U.S. 183, 193 n.12 (1984), citing Board of

Regents v. Roth, 408 U.S. 564, 577 (1972). On a federal

question, “in the face of Supreme Court precedent articu-

lating substantive constitutional rights, the defendant's

claim that [state-court] cases somehow obscured other-

wise clearly established law is simply not persuasive.”

Guffey v. Wyatt, 18 F. 3d 869, 872 (10th Cir. 1994). And

even if Florida law could somehow obscure the unequiv-

ocal message of the federal decisions, as Judge Barkett

pointed out (App. 21-24), all of the Florida Supreme

Court decisions unambiguously parallel the First

Amendment protections accorded under federal law;5

any intermediate Florida appellate decisions are unavail-

able to disturb a state of the law otherwise “clearly estab-

lished”; in any event, all but one of the intermediate

appellate decisions in Florida unequivocally endorse the

federal and Florida Supreme Court rulings;”? and the sin-

gle intermediate decision cited by the Court of Appeals

was based on the finding that the defendant had deliber-

ately attempted “to incite the police officer and perhaps

others to violence.”® No such finding is available on the

record in this case. Therefore, to the extent that Florida

state-court decisions are relevant, no less than the federal

decisions, they “clearly establish” the officers’ constitu-

tional violation.

> See Morris v. State, 335 So. 2d 1 (Fla. 1976); State v.

Saunders, 339 So. 2d 641 (Fla. 1976); Gonzales v. City of Belle Glade,

287 So. 2d 669 (Fla. 1973). See also White v. State, 330 So. 2d 3, 5-7

(Fla. 1976).

821, 826 n.4 (11th Cir.) (en banc), cert. denied, __ U.S. __, 118

S. Ct. 412, 139 L. Ed. 2d 315 (1997); Hamilton v. Cannon, 80 F. 3d

1525, 1532 n.7 (11th Cir. 1996).

7 See K.Y.E. v. State, 557 So. 2d 956 (Fla. Ist DCA 1990);

D.C.E. v. State, 381 So. 2d 1097 (Fla. lst DCA 1979); Harbin v.

State, 358 So. 2d 856 (Fla. 1st DCA 1978); Clanton v. State, 357 So.

2d 455 (Fla. 2d DCA 1978); Phillips v. State, 314 So. 2d 619 (Fla.

4th DCA 1975). These decisions all were on the books at the time

of the October, 1991 arrest in this case. As Judge Barkett pointed

out in dissent (App. 27 n.2), at least four subsequent

intermediate appellate decisions are consistent. See K.S. v. State,

697 So. 2d 1275 (Fla. 3d DCA 1997); Miller v. State, 667 So. 2d 325

(Fla. lst DCA 1995); B.R. v. State, 657 So. 2d 1184 (Fla. lst DCA

1995); L.A.T. v. State, 650 So. 2d 214 (Fla. 3d DCA 1995).

8 L.J.M. v. State, 541 So. 2d 1321, 1323 (Fla. lst DCA 1989).

Oe ee ee ee ee ee

CONCLUSION

It is respectfully submitted that the petition for writ

of certiorari should be granted.

JamMes K. Green, Esa.

One Clearlake Centre,

Suite 1602

250 S. Australian Avenue

West Palm Beach, Florida

33401

(561) 659-2029

ANpbreEwW H. Kayrton, Esa.

American Civil Liberties

Union Foundation of

Florida, Inc.

3000 Biscayne Blvd.,

Suite 215

Miami, Florida 33137

(305) 576-2337

Respectfully submitted,

Joe. S. Perwin, Esa.

Counsel of Record

PopHuRST, ORSECK,

JOSEFSBERG, EATON,

Meapow, OLIN &

Perwin, P.A.

25 West Flagler Street,

Suite 800

Miami, Florida 33130

(305) 358-2800/

Fax (305) 358-2382

CuHarwes M. Baron, Esa.

633 N.E. 167th Street,

Suite 1201

North Miami Beach,

Florida 33162

(305) 770-1410

Attorneys for Petitioner

Index to Appendix

ee NEN Sek was 0k 40 Ooo V ad bwk ia awecdod App.

District Court’s Order Denying Motions for Sum-

mary Judgment on Immunity Defense........ App.

AIRE A UE gee A NCD Re CTS ee igen a a eR App.

App. i

APPENDIX

Michael C. GOLD, Plaintiff-Appellee,

CITY OF MIAMI, a Florida Municipal

Corporation, Defendant,

Calvin Ross, individually, Rafael Suarez,

individually, Jorge Perez, individually,

William Campbell, Individually, Defend-

ants-Appellants.

No. 95-4996.

United States Court of Appeals,

Eleventh Circuit.

Sept. 17, 1997.

Kathryn C. Pecko, Asst. City Attorney, A. Quinn

Jones, III, Leon M. Firtel, Theresa L. Girten, Miami, FL

for Defendants-Appellants.

Charles M. Baron, North Miami Beach, FL, for Plain-

tiff-Appellee.

Appeal from the United States District Court for the

Southern District of Florida.

Before HATCHETT, Chief Judge, COX, Circuit Judge,

and MESKILL"*, Senior Circuit Judge.

PER CURIAM:

* Honorable Thomas J. Meskill, Senior U.S. Circuit Judge of

the Second Circuit, sitting by designation.

App. 2

Rafael Suarez, Jorge Perez, William Campbell, and

Calvin Ross appeal the district court’s denial of their

motion for summary judgment predicated on qualified

immunity in this civil rights action filed by Michael Gold.

For the reasons that follow, we reverse.

I. Facts!

The incident giving rise to Gold’s action occurred on

October 18, 1991. On that day, Gold pulled into a con-

gested banx parking lot so that his passenger could use

the bank’s automated teller machine (ATM). While wait-

ing for a parking space to open up, Gold noticed a

uniformed police officer keeping watch over the area. He

also noticed a woman who did not appear to be hand-

icapped walk to her car parked in a handicapped space,

get in, and start to drive away. Disturbed by this, Gold

yelled to the officer, “[aJren’t you supposed to give them

a ticket for parking in a handicapped spot?” (R.2-91 at

28.) The officer did not respond. Gold then found a

parking space, parked his car, walked toward the ATM,

and loudly remarked to no one in particular, “Miami

police don’t do shit.” (R.2-91 at 34.)

Upon hearing Gold’s remark, a plainclothes officer

who had been standing in the ATM line stated to the

! The district court’s order denying summary judgment did

not contain findings of fact. We therefore have no choice but to

glean the facts from the record.

The facts we state for the present purposes are construed in

the light most favorable to Gold. See Lancaster v. Monroe County,

Ala., 116 F.3d 1419, 1420 n. 1 (11th Cir. 1997); McKinney v. DeKalb

County, Ga., 997 F.2d 1440, 1442 (11th Cir. 1993).

App. 3

uniformed officer, “I think this guys [sic] got a problem.”

(R.2-91 at 36.) To this, Gold replied, “I don’t have a

problem. I’m just saying that ‘Miami [p]olice don’t do

shit.’ ” (R.2-91 at 36.) A different plainclothes officer who

had been standing next to the uniformed officer then

approached Gold and asked him for identification. After

Gold produced his Florida driver’s license and Florida

Bar membership card, the officer headed toward the uni-

formed officer’s patrol car to do a radio-check on the

identification. The officer soon was joined by the uni-

formed officer and the other plainclothes officer.

Upon observing all of this, a couple in the ATM line

remarked, “I can’t believe they’re doing this.” (R.2-91 at

40.) Gold talked to the. couple for a few minutes then

approached the three officers and asked them what was

going on. At that point, the officers arrested him for

“disorderly conduct” and asked him to put his hands

behind his back. Although Gold did so without resis-

tance, the officers later charged him, along with the disor-

derly conduct charge, with “resisting arrest without

violence.”

After handcuffing Gold, the uniformed officer

assisted Gold into the back of his patrol car. Some

moments later, Gold complained to him that the hand-

cuffs were applied so tightly that he was in pain. How-

ever, the uniformed officer did not loosen the handcuffs

until roughly twenty minutes after Gold complained.

II. Procedural History

Gold sued the three officers, Campbell, Perez, and

Suarez, under 42 U.S.C. § 1983, alleging that they (1)

App. 4

violated his First, Fourth, and Fourteenth Amendment

rights by falsely arresting him for disorderly conduct;

and (2) violated his Fourth Amendment rights by apply-

ing the handcuffs too tightly and leaving them that way

for an unreasonable amount of time. He also sued the

now-former Miami Police Chief, Calvin Ross, under

§ 1983, alleging that Ross violated his First, Fourth, and

Fourteenth Amendment rights by failing to train and

supervise subordinate officers regarding the constitu-

tional limitations of Florida’s disorderly conduct statute

and regarding the proper response to an arrestee’s hand-

cuff complaints.?

The officers eventually moved for summary judg-

ment on the basis of qualified immunity, and Gold moved

for partial summary judgment on the basis of liability.

The district court concluded that factual issues remained,

and, without explicitly conducting a qualified immunity

analysis, denied both motions. The officers appeal that

denial, raising one issue: whether the district court erred

in implicitly concluding that they violated clearly estab-

lished law.

2 Gold also asserted various state law claims against the

officers and against the City of Miami. Those claims are noi

involved in this appeal.

3 We review this legal issue de novo. See Post v. City of Fort

Lauderdale, 7 F.3d 1552, 1556 (11th Cir. 1993).

We reject Gold’s argument that we do not have jurisdiction

to decide this issue since the district court did not explicitly

conduct a qualified immunity analysis. Implicit in the district

court’s denial of summary judgment was a conclusion that the

defendants violated clearly established law. See Behrens v.

Peletier, . U.S. , 1 136 S.Ct. G34, 642, 133 L.Ed.2d 773

(1996); Foy v. Holston, 94 F.3d 1528, 1531 n. 3 (11th Cir. 1996).

App. 5

Ill. Discussion

Qualified immunity shields government officials per-

forming discretionary functions from civil litigation and

damage liability where “their conduct does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73

L.Ed.2d 396 (1982).4 Under this standard, a plaintiff must

show that “when the defendant acted, the law established

the contours of a right so clearly that a reasonable official

would have understood his acts were unlawful.” See Post

v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993).

A. False Arrest

We first determine whether the officers are entitled to

qualified immunity on Gold’s claim that the officers vio-

lated his First, Fourth, and Fourteenth Amendment rights

by falsely arresting him for disorderly conduct. In mak-

ing this determination, the central issue is whether, on

the date of Gold’s arrest, the officers had arguable proba-

ble cause to believe that Gold had committed the offense

of disorderly conduct. See Von Stein v. Brescher, 904 F.2d

572, 579 (11th Cir. 1990). The standard for arguable proba-

ble cause is “whether a reasonable officer in the same

circumstances and possessing the same knowledge as the

officer in question could have reasonably believed that

probable cause existed in the light of well-established

law.” See Eubanks v. Gerwen, 40 F.3d 1157, 1160 (11th Cir.

4 The parties do not dispute that the officers were acting

within their discretionary authority at all relevant times.

App. 6

1994). As we have emphasized before, arguable probable

cause is distinct from actual probable cause. See Post, 7

F.3d at 1559.

Florida statutory law defines disorderly conduct as

“acts [that] . . . 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... brawling or fighting, or . . . conduct [that] consti-

tute[s] a breach of the peace or disorderly conduct... . ”

See Fra. Stat. § 877.03 (1994). To avoid First Amendment

concerns in cases involving speech, the Florida Supreme

Court strictly limited the law to apply in such cases only

where the speech, by its very utterance, “ ‘inflict[s] injury

or tend[s] to incite an immediate breach of the peace...’ ”

See State v. Saunders, 339 So.2d 641, 644 (Fla.1976) (quot-

ing White v. State, 330 So.2d 3, 7 (Fla.1976)).°

Based on this limitation, the Florida Supreme Court

has reversed convictions for disorderly conduct where a

defendant merely directed profane language at police

officers in the presence of others, see Morris v. State, 335

So.2d 1, 2 (Fla.1976), and where defendants made threat-

ening comments to and voiced “intemperate expletives”

near police officers, see Gonzales v. City of Belle Glade, 287

So.2d 669, 670-71 (Fla.1973). In both cases, the court made

it clear that a person does not violate the disorderly

> The Florida Supreme Court held that the disorderly

conduct statute also could apply, without violating the First

Amendment, in speech cases where the speech is known to be

false and “creates a clear and present danger of bodily harm to

others,” such as shouts of fire in a crowded theater. See State v.

Saunders, 339 So.2d 641, 644 (Fla.1976).

App. 7

conduct law merely by annoying those around them or by

employing profane language to express outrage. How-

ever, the court also made it clear that violation of the

disorderly conduct law largely depends on the facts and

circumstances of each case, noting that “ ‘[i]t is the degree

of loudness, and the circumstances [under] which [the

speech is] uttered, [that] takes [it] out of the constitu-

tionally protected area.’ ” See Morris, 335 So.2d at 2 (quot-

ing White, 330 So.2d at 6).

The fact-intensive nature of the constitutional inquiry

accounts for the varying views in the Florida appellate

courts of what constitutes legally proscribed disorderly

conduct. In one case, a Florida appellate court affirmed

the disorderly conduct conviction of a juvenile who

directed profanities at a police officer in a loud voice and

in the presence of others. See L.J.M. v. State, 541 So.2d

1321, 1322-23 (Fla. lst DCA 1989). According to the court,

“li]f this country is to preserve in its citizens any sense of

discipline and respect for others in our society, the [First

[A]mendment simply cannot be construed to condone

this type of conduct.” See id. at 1323. In another case, the

same appellate court reversed a delinquency adjudication

based on disorderly conduct of a juvenile who leaned

from a car window and yelled unprovoked profanities at

nearby police officers. See D.C.E. v. State, 381 So.2d 1097,

1098-99 (Fla. lst DCA 1979).

Given that what constitutes legally proscribed disor-

derly conduct is subject to great subjective interpretation

of specific facts - for example, the words used, the tone

used, the decibels used, and the reaction of onlookers -

we are constrained to conclude that a reasonable officer

in the same circumstances and possessing the same

App. 8

knowledge as the officers in this case could have reason-

ably believed that probable cause existed to arrest Gold

for disorderly conduct. The evidence, viewed in the light

most favorable to Gold, reflects that Gold twice used

profanities in a loud voice, in a public place, and in the

presence of others. At the time, no cases clearly estab-

lished that those actions did not constitute legally pro-

scribed disorderly conduct.

We pause at this point to reemphasize that the argu-

able probable cause inquiry is distinct from the actual

probable cause inquiry. It is clear from the facts viewed in

the light most favorable to Gold that the officers did not

have actual probable cause to arrest Gold for disorderly

conduct.® That said, the officers nonetheless are entitled

to qualified immunity.” As the Supreme Court has stated,

“(t]he qualified immunity standard ‘gives ample room for

mistaken judgments’... .” See Hunter v. Bryant, 502 U.S.

224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (quot-

ing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1097,

89 L.Ed.2d 271 (1986)). “This accommodation for reason-

able error exists because ‘officials should not err always

on the side of caution’ because they fear being sued.” Id.;

502 U.S. at 229, 112 S.Ct. at 537 (quoting Davis v. Scherer,

6 In Gold’s case against the City of Miami, a jury in fact

found that the officers did not have probable cause to arrest

Gold for disorderly conduct. It rendered a verdict of $26,500.00

in favor of Gold.

7 Gold did not argue to the district court, and does not

argue on appeal, that the officers violated clearly established

law by falsely arresting him for resisting arrest without

violence. We therefore do not address that issue here.

Se Al ee SP TIE SNS oe a LAY W

App. 9

468 U.S. 183, 196, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139

(1984)).

B. Excessive Force

We next determine whether the officers are entitled

to qualified immunity on Gold’s claim that the officers

violated his Fourth Amer «. ont right to be free from

excessive force by applying the handcuffs too tightly and

by leaving them that way for an unreasonable amount of

time. Whether an officer used excessive force turns on a

number of factors, such as “the severity of the crime,

whether the suspect pose[d] an immediate threat, and

whether the suspect [was] resisting or fleeing. Use of

force must be judged on a case-by-case basis... . ” Post, 7

F.3d at 1559 (citation omitted). Because of this lack of a

bright-line standard, “qualified immunity applies unless

application of the standard would inevitably lead” a rea-

sonable officer in the defendant's position to conclude

that the force was unlawful. See id.

Here, the facts viewed in the light most favorable to

Gold show that Gold experienced pain from the hand-

cuffs for roughly twenty minutes and that Gold suffered

only skin abrasions for which he did not seek medical

treatment. The minor nature of this injury reflects that

minimal force was used to apply the handcuffs. Certainly,

these circumstances would not “inevitably lead” a rea-

sonable officer in the officers’ positions to conclude that

the force used to apply the handcuffs was unlawful.

Accordingly, the officers are entitled to qualified immu-

nity on Gold’s excessive force claim.

App. 10

C. Deliberate Indifference

Last, we determine whether now-former Police Chief

Ross is entitled to qualified immunity on Gold’s § 1983

claim that Ross violated his First, Fourth, and Fourteenth

Amendment rights by failing to train subordinate officers

regarding the constitutional limitations of Florida's disor-

derly conduct statute and regarding the proper response

to an arrestee’s handcuff complaints.

A supervisor will be denied qualified immunity from

a § 1983 claim where “a reasonable person in the super-

visor’s position would have known that his conduct

infringed the constitutional rights of the plaintiff and his

conduct was causally related to the constitutional viola-

tion committed by his subordinate.” McKinney, 997 F.2d

at 1443. Here, the facts viewed in the light most favorable

to Gold reflect that Ross gave no training to the officers

on the constitutional limitations of the disorderly conduct

statute or on the proper response to an arrestee’s hand-

cuff complaints. We are not convinced that a reasonable

person in Ross’s position would have known that such a

failure infringed on constitutional rights. Therefore, Ross

is entitled to qualified immunity on this claim.

IV. Conclusion

For the reasons stated above, we conclude that Sua-

rez, Perez, Campbeil, and Ross are entitled to qualified

immunity on each of Gold’s federal claims. Accordingly,

we reverse the district court’s denial of their motion for

summary judgment on those claims and remand to the

district court for further proceedings.

REVERSED and REMANDED.

App. 11

United States District Court

Southern District of Florida

MICHAEL C, GOLD, Case No. 92-1673-CIV-KEHOE

Plaintiff,

vs. ORDER ON

P MOTIONS FOR

CITY OF MIAMI, a Florida

Municipal corporation; eo

CALVIN ROSS, J

individually; RAFAEL (Filed Jul. 17, 1995)

SUAREZ, individually;

JORGE PEREZ,

individually; and

WILLIAM CAMBELL,

individually,

Defendants.

THIS CAUSE came before the Court upon the Defen-

dants’ motion [Docket No. 77] for a summary judgment

and upon the Plaintiffs’ motion [Docket No. 87] and

amended motion [Docket No. 96] for a partial summary

judgment on the issue of the liability of each Defendant.

After a review of the motions, responses replies and

the supplemental filings, it is

ORDERED AND ADJUGED that (1) the Defendants’

motion [Docket No. 77] for a summary judgment is

DENIED’ and (2) the Plaintiff’s motion [Docket No. 87]

and amended motion [Docket No. 96] for a partial sum-

mary judgment on the issue of the liability of each Defen-

dant are DENIED.2

' The Defendants’ motion [Docket No. 89] for oral

argument on their motion for summary judgment is DENIED.

° Except for a corrected minor typographical error and the

numbering of paragraphs, the plaintiffs’ motion [Docket No. 87]

App. 12

As the United States Supreme Court has established

in Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986), the initial burden in a motion

for summary judgment falls on the moving party to

establish “ ... the basis for [the] motion, . . . identifying

those portions of the pleadings, depositions, answers to

interrogatories and admissions on file, together with affi-

davits, if any, which it believes demonstrate the absence

of a genuine issue of material fact.” U.S. v. Four Parcels of

Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991), quoting

from Celotex, supra. In determining whether the movant

has satisfied this burden, the Court is also required to

view the evidence and all factual inferences arising there-

from in the light most favorable to the non-moving party,

and “[i]f reasonable minds might differ on the inferences

arising from undisputed facts, then the court should deny

summary judgment.” Augusta Iron and Steel Work, Inc. v.

Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir.

1982).

The Court acknowledges that in the present motions

for summary judgment, each side has presented argu-

ments on various aspects of the case, in which they apply

sound legal reasoning to essentially undisputed tacts and

display a high level of pretrial advocacy. But, it is also

apparent to the Court that even where the facts are not in

dispute, there still remains a lingering array of disputed

“factual inferences arising therefrom” that cannot be

resolved by motions of summary judgment.$

and amended motion [Docket No. 96] for a partial summary

judgment are identical.

3 Disputed “factual inferences” arise, inter alia, in

connection with the facts surrounding the detention of the

OOO

* App. 13

Consequently, the Court FINDS, and so CON-

CLUDES, that the present motions are deficient in this

respect and, accordingly, the motion of the Defendants

for a summary judgment and the motion and amended

motion of the Plaintiff for a partial summary judgment on

the issue of the liability of the Defendants cannot be

sustained.

DONE AND ORDERED in Chambers at Miami, Flor-

ida, this 17th day of July, 1995.

/s/ James W. Kehoe

JAMES W. KEHOE

SENIOR UNITED STATES

DISTRICT JUDGE

Copies furnished to:

Charles M. Baron, Esq.

Leon M. Firtel, Esq.

Plaintiff by Defendants Suarez and Perez, the transfer of the

Plaintiff to Defendant Campbell, the arrest and handcuffing of

the Plaintiff, the delay by Defendant Campbell in loosening the

Plaintiff's handcuffs after being informed that they were too

tight. Disputed “factual inferences” also arise, inter alia, in

connection with the facts surrounding the question of the

individual Defendants’ qualified immunity, the Defendant

City’s departmental policy concerning “disturbing the peace”

and “fighting words” as reflected in the Department's officer

training and post-training programs, etc.

App. 14

Michael C. GOLD, Plaintiff-Appellee,

CITY OF MIAMI, a Florida Municipal

Corporation, Defendant,

Calvin Ross, individually, Rafael Suarez, indi-

vidually, Jorge Perez, individually, William

Campbell, individually, Defendants-Appel-

lants.

No. 95-4996.

United States Court of Appeals,

Eleventh Circuit.

April 7, 1998.

Kathryn C. Pecko, Leon M. Firtel, Assts. City Attys.,

Miami, FL, for Defendants-Appellants.

Charles M. Baron, North Miami Beach, FL, for Plain-

tiff-Appellee.

Appeal from the United States District Court for the

Southern District of Florida (No. 92-1673-CIV-JWK),

James W. Kehoe, Judge.

ON PETITION FOR REHEARING

(Opinion Sept. 17, 1997, 11th Cir, 121 F.3d 1442).

Before HATCHETT, Chief Judge, and TJOFLAT,

ANDERSON, EDMONDSON, COX, BIRCH, DUBINA,

BLACK, CARNES, BARKETT, HULL and MARCUS, Cir-

cuit Judges.

PER CURIAM:

The Court having been polled at the request of one of

the members of the Court and a majority of the Circuit

App. 15

Judges who are in regular active service not having voted

in favor of it (Rule 35, Federal Rules of Appellate Pro-

cedure; Eleventh Circuit Rule 35-5), rehearing en banc is

DENIED.

BARKETT, Circuit Judge, dissenting: —

[ respectfully dissent from the court’s denial of

rehearing en banc. In this case, the panel held that the

police officers who arrested Gold for disorderly conduct

based solely on his comments to them were entitled to

qualified immunity on Gold’s false arrest claim. Despite

the Supreme Court’s holding in City of Houston v. Hill, 482

U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), that the

First Amendment fully protects speech critical of police

officers and a wealth of Florida Supreme Court precedent

declining to apply the Florida disorderly conduct statute

in factually similar circumstances to avoid conflict with

the First Amendment, the panel held that Gold’s First

Amendment rights were not clearly established, and that

the officers had arguable probable cause to believe that

Gold’s speech, standing alone, violated Florida’s disor-

derly conduct statute. The panel’s conclusion that the

officers had arguable probable cause to make an arrest in

this case contravenes this overwhelming body of caselaw.

Accordingly, we should rehear this case en banc.

The disorderly conduct for which Gold was arrested

consisted of Gold yelling from his car to a police officer,

“aren't you supposed to give them a ticket for parking in

a handicapped spot,” upon seeing a woman who did not

appear to be disabled walk to her car in a handicapped

space and drive away. When the police did nothing, Gold

App. 16

loudly remarked to no one in particular, “Miami

police don’t do shit.”

Upon hearing Gold’s remarks, a plainclothes

officer who had been standing in the ATM line

stated to the uniformed officer, “I think this

guys [sic] got a problem.” To this Gold replied,

“I don’t have a problem. I’m just saying that

Miami police don’t do shit.”

Gold v. City of Miami, 121 F.3d 1442, 1444 (11th Cir.1997).

Under binding United States Supreme Court and Florida

Supreme Court precedent existing at the time of Gold’s

arrest, no reasonable officer could possibly have believed

that Gold’s words were criminal. Gold’s speech is pre-

cisely the kind that lies at the core of the First Amend-

ment. There is nothing in the facts of this case even

remotely to suggest that Gold’s speech could be con-

strued as falling within the very narrow category of fight-

ing words or any other category of constitutionally

proscribable speech. Accordingly, the officers in this case

were not entitled to qualified immunity.

Disregarding these applicable precedents, the court’s

opinion found that Gold had not shown a violation of

clearly established law, effectively holding that the law in

a particular area is not clearly established for qualified

immunity purposes, unless the plaintiff can point to a

prior case involving identical facts. The panel’s opinion

emphasizes that, at the time of Gold’s arrest, “no cases

clearly established that [Gold’s] actions did not constitute

legally proscribed disorderly conduct.” Gold, 121 F.3d at

1446. As the Supreme Court made explicitly clear in

United States v. Lanier, __ U.S. __, 117 S.Ct. 1219, 137

‘elect Naive “geasin ale ell

Bites

App. 17

L.Ed.2d 432 (1997), such “fundamental similar[ity]” of

underlying facts is not required to establish a violation of

_ Clearly established law. The purpose of qualified immu-

nity, the Lanier Court explained, is simply ts give govern-

ment officials “fair warning” that their conduct violates

federal constitutional or statutory rights. Comparing the

“clearly established” concept in qualified immunity to the

“fair warning” standard for a conviction under 18 U.S.C.

§§ 241 and 242, the Court observed:

In the civil sphere, we have explained that qual-

ified immunity seeks to ensure that defendants

“reasonably can anticipate when their conduct

may give rise to liability,” by attaching liability

only if “[t]he contours of the right [violated are]

sufficiently clear that a reasonable official would

understand that what he is doing violates that

right”. . . . [Both [the “clearly established” test

and the “fair warning” standard] serve the same

objective, and in effect the qualified immunity

test is simply the adaptation of the fair warning

standard to give officials (and, ultimately, gov-

ernments) the same protection from civil lia-

bility and its consequences that individuals have

traditionally possessed in the face of vague

criminal statutes. To require something clearer

than “clearly established” would, then, call for

something beyond “fair warning.”

Id. at __, 117 S.Ct. at 1227 (citations omitted).

The Court held that even under the standards neces-

sary to support a criminal conviction, precedents involv-

ing “fundamentally similar” facts are not necessary to

give state officials fair warning that their conduct contra-

venes constitutional rights:

App. 18

Nor have our decisions demanded precedents

that applied the right at issue to a factual situa-

tion that is “fundamentally similar”. . . . To the

contrary, we have upheld convictions under

§ 241 or § 242 despite notable factual distinc-

tions between the precedents relied on and the

cases then before the Court, so long as the prior

decisions gave reasonable warning that the con-

duct then at issue violated constitutional rights.

Id. Moreover, the Court recognized that some legal con-

cepts are sufficiently clear that any reasonable person

would know when his or her actions would violate those

concepts:

[G]leneral statements of the law are not inher-

ently incapable of giving fair and clear warning,

and ...a general constitutional rule already

identified in the decisional law may apply with

obvious clarity to the specific conduct in ques-

tion, even though “the very action in question

has [not] previously been held unlawful.” As

Judge Daughtrey noted in her dissenting opin-

ion in this case, “ ‘[t]he easiest cases don’t even

arise. There has never been . . . a section 1983

case accusing welfare officials of selling foster

children into slavery; it does not follow that if

such a case arose, the officials would be immune

from damages [or criminal] liability.’ ”

Id. at __- — __, 117 S.Ct. at 1227-28 (citations omitted).

Under Lanier’s fair warning standard, the police offi-

cers are not entitled to qualified immunity in this case.

First, at the time of Gold’s arrest, the Supreme Court had

specifically held that speech critical of police officers is

constitutionally protected. Second, as the panel opinion

recognizes, the Florida Supreme Court had specifically

dy lt a aed LY Sills ac

ves a Ahab lS nepali C5 Sasa

App. 19

reversed, as violative of the First Amendment, disorderly

conduct convictions of defendants who had not only used

expletives, but also made threatening comments to police

officers —- conduct far more egregious than Gold’s. Finally,

every other circuit that has addressed the issue of quali-

fied immunity in a situation similar to that present here

has had no trouble concluding that a police officer is not

entitled to qualified immunity in these circumstances.

Supreme Court Precedent.

The court’s opinion in this case wholly ignores the

First Amendment's protection of speech critical of the

police, failing even to mention the United States Supreme

Court’s governing precedent in this area. In City of

Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d

398 (1987), the Supreme Court held that “the First

Amendment protects a significant amount of verbal criti-

cism and challenge directed at police officers.” Id. at 461,

107 S.Ct. at 2509. Applying this principle, the Court

invalidated a Houston ordinance making it illegal to

interrupt an officer in any manner, reasoning that “[t]he

Constitution does not allow such speech to be made a

crime. The freedom of individuals verbally to oppose or

challenge police action without thereby risking arrest is

one of the principal characteristics by which we distin-

guish a free nation from a police state.” Id. at 462-63, 107

S.Ct. at 2510 (footnote omitted). The Court made clear

that the First Amendment does not permit states to “pro-

vide the police with unfettered discretion to arrest indi-

viduals for words or conduct that annoy or offend them.”

Id. at 465, 107 S.Ct. at 2511-12; see also Norwell v. City of

Cincinnati, 414 U.S. 14, 16, 94 S.Ct. 187, 188, 38 L.Ed.2d

App. 20

170 (1973) (overturning conviction under disorderly con-

duct statute where “petitioner was arrested and con-

victed merely because he verbally and negatively

protested Officer Johnson’s treatment of him”).

To be sure, the Court in Hill noted that “the freedom

verbally to challenge police action is not without limits,”

Hill, 482 U.S. at 463 n. 12, 107 S.Ct. at 2510 n. 12, recogniz-

ing that “ ‘fighting words’ which ‘by their very utterance

inflict injury or tend to incite an immediate breach of the

peace’ are not constitutionally protected.” Id. (quoting

Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct.

766, 769, 86 L.Ed. 1031 (1942)). However, the fighting

words doctrine has a narrower application where, as

here, an individual’s speech offends a police officer. See

Hill, 482 U.S. at 462, 107 S.Ct. at 2510. As we have

previously recognized, a police officer, “by virtue of his

profession or training|[, is] expected to absorb a certain

amount of abuse without retaliating. ...” Lamar v. Banks,

684 F.2d 714, 718 n. 13 (11th Cir.1982); see also Lewis v. City

of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 973, 39

L.Ed.2d 214 (1974) (Powell, J., concurring) (“[A] properly

trained officer may reasonably be expected to ‘exercise a

higher degree of restraint’ than the average citizen, and

thus be less likely to respond belligerently to ‘fighting

words.’ ”) (quoting Lewis v. City of New Orleans,

408 U.S. 913, 913, 92 S.Ct. 2499, 2499, 33 L.Ed.2d 321

(1972) (Powell, J., concurring)). As the Supreme Court

observed in Hill, “ ‘[s]peech is often provocative and

challenging. . . . [But it] is nevertheless protected against

censorship or punishment, unless shown likely to pro-

duce a clear and present danger of a serious substantive evil

that rises far above public inconvenience, annoyance, or

App. 21

unrest.’ ” Hill, 482 U.S. at 461, 107 S.Ct. at 2509 (quoting

Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894,

895-96, 93 L.Ed. 1131 (1949) (emphasis added)); accord

Monroe v. State Court of Fulton County, 739 F.2d 568, 575

(11th Cir.1984) (“A function of free speech is to invite

dispute.”); Sweatt v. Bailey, 876 F.Supp. 1571, 1580

(M.D.Ala.1995) (“[C]Jalling a law enforcement officer ‘an

ass’ within his earshot in the 1990’s should not provoke a

violent reaction and therefore does not fall within the

‘fighting words’ doctrine.”).

Florida Law

Consistent with these established First Amendment

principles, Florida law protects the right of individuals to

criticize the conduct of police officers, even using

unpleasant and offensive words. Indeed, as the panel

explicitly recognized, the Florida Supreme Court, in a

series of cases involving speech critical of the police, has

“made it clear that a person does not violate the disor-

derly conduct law merely by annoying those around

[him] or by employing profane language to express out-

rage.” Gold, 121 F.3d at 1445. Gold’s actions fit squarely

within this principle.

In State v. Saunders, 339 So.2d 641 (Fla.1976), the

Florida Supreme Court held that Florida’s disorderly con-

duct statute must be construed in light of the First

Amendment and narrowed the reach of the statute to

render it constitutional. The Saunders court construed the

disorderly conduct statute

so that it shall hereafter only apply either to

words which “by their very utterance . . . inflict

App. 22

injury or tend to incite an immediate breach of

the peace,” or to words, known to be false,

reporting some physical hazard in circum-

stances where such a report creates a clear and

present danger of bodily harm to others. We

construe the statute so that no words except

“fighting words” or words like shouts of “fire”

in a crowded theatre fall within its proscription,

in order to avoid the constitutional problem of

overbreadth, and “the danger that a citizen will

be punished as a criminal for exercising his

right of free speech.” With these two exceptions,

Section 877.03 should not be read to proscribe

the use of language in any fashion whatsoever.

Id. at 644 (citations omitted).

The Florida Supreme Court’s cases construing the

disorderly conduct statute in circumstances similar to

those presented in this case, decided both before and

after Saunders, clearly establish that the officers in this

case could not have reasonably believed that they had

probable cause to arrest Gold for criticizing the police. As

the panel’s opinion again recognizes, in Morris v. State,

335 So.2d 1 (Fla.1976), the Florida Supreme Court

reversed a conviction for “disorderly conduct where a

defendant merely directed profane language at police

officers in the presence of others,” Gold, 121 F.3d at 1445 -

precisely what Gold did here. Likewise, in Gonzales v. City

of Belle Glade, 287 So.2d 669 (Fla.1973), the Florida

Supreme Court overturned two disorderly conduct con-

victions, finding that the defendants’ threatening com-

ments to police officers and use of an “intemperate

expletive or two” were insufficient to sustain the convic-

tions. “In neither case was there any evidence that the

App. 23

actions of any of the appellants were more than annoying

to those around them, and a violation . . . requires more

than the creation of a mere annoyance.” Id. at 670; see also

White v. State, 330 So.2d 3, 5 (Fla.1976) (“The statute must

not be construed to limit the use of a socially impermissi-

ble word merely as a tool of communication.”).

Indeed, in White, the Florida Supreme Court

expressly recognized that “protected speech may provoke

violent dissent,” but found that such disagreement was

not a basis for criminally punishing speech. Id. at 6. To

permit the imposition of criminal sanctions merely

because an individual’s words “may have offended the

sensibilities of [a police officer] and others who heard

them” would be inconsistent with the core principle of

the First Amendment: “the right vigorously to advance a

minority opinion even though that opinion may anger

| others and arouse forceful disagreement.” Id. (discussing

Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303

: (1973)). The White court drew a distinction between

“mere words, used as a tool of communication,” which

are protected “even though they may not be acceptable in

certain strata of society,” and the use of words to “invade

the rights of others to pursue their lawful activities.” Id.

; at 7. Finding the latter to be unprotected, the court found

that the defendant could be convicted for screaming at

the top of his lungs for several minutes at a police station,

disturbing the other people at the station and impeding

: their work. Thus, White’s words were not punished

because they were offensive, but because “by their very

| decibel count, [those words] did invade the right of

others to pursue their lawful activities.” Id. at 6. Indeed,

White’s “conduct would have been equally disorderly

App. 24

had he merely recited ‘Mary Had a Little Lamb’ in the

same tone and under similar circumstances.” Id. at 7.

Ignoring its context in White, the panel pointed to the

language in White that “ ‘[i]t is the degree of loudness,

and the circumstances [under] which [the speech is]

uttered, [that] takes [it] out of the constitutionally pro-

tected area,’ ” Gold, 121 F.3d at 1445 (citations omitted), to

suggest that because of the “fact-intensive nature of the

[First Amendment] inquiry,” id. at 1446, the officers did

not have fair warning that their arrest of Gold was uncon-

stitutional. This completely misses the mark. It is true

that the First Amendment inquiry in this case is a fact-

specific one, requiring us to determine whether the police

officers could reasonably have believed that Gold’s words

““‘inflictled] injury or tend[ed] to incite an immediate

breach of the peace’... . ” Saunders, 339 So.2d at 644

(quoting White, 330 So.2d at 7). While there will undoubt-

edly be some situations in which the facts will legit-

imately give the police arguable probable cause to believe

that an individual’s speech meets this standard, we are

not faced with such a situation here. The panel does not

even attempt to demonstrate that a police officer could

reasonably have believed that Gold’s speech constituted —

fighting words or any other category of proscribable

speech. Nor could it. Here there was no crowd to incite;

there were no persons disturbed by Gold’s speech. There

were only police officers who heard unpleasant criticism

and two bystanders concerned about the police’s treat-

ment of Gold.! At best, the evidence showed that Gold’s

1 As described in the panel opinion, the only evidence that

Gold’s comment had any effect whatsoever on anyone other

App. 25

statements attracted the attention of the two bystanders,

but this does not suffice to give the officers arguable

probable cause. At worst, and clearly the most likely

scenario, the evidence suggests that the officers arrested

Gold to retaliate against him for his criticism of their

performance - a blatant violation of the First Amendment

principles set forth in Hill. We may not shirk our obliga-

tion to consider whether any facts exist to support argu-

able probable cause simply because the governing

standard is a fact-specific one. Cf. Smith v. Mattox, 127

F.3d 1416, 1419 (11th Cir.1997) (analyzing “multifactored

case-by-case balancing test” in concluding that officer's

use of force “was so far beyond the hazy border between

excessive and acceptable force that Mattox had to know

that he was violating the Constitution”).

The court also claims that there are “varying views in

the Florida appellate courts of what constitutes legally

proscribed disorderly conduct.” Gold, 121 F.3d at 1446.

But there are no “varying views” in the Florida Supreme

Court - the only state court relevant for qualified immu-

nity purposes. See Jenkins v. Talladega City Bd. of Educ., 115

F.3d 821, 826 n. 4 (11th Cir.) (en banc) (qualified immu-

nity analysis looks to “decisions of the U.S. Supreme

Court, Eleventh Circuit Court of Appeals, [and] the high-

est court of the state where the case arose”), cert. denied,

__ US. __, 118 S.Ct. 412, 139 L.Ed.2d 315 (1997); Ham-

ilton v. Cannon, 80 F.3d 1525, 1532 n. 7 (11th Cir.1996)

than the arresting officers was that a couple waiting in line,

observing the police’s treatment of Gold, stated, “I can’t believe

they’re doing this.” There was also evidence that the couple

spoke with Gold for several minutes.

App. 26

(same). Assuming, arguendo, that the opinions of the

intermediate state appellate courts are relevant here, they,

likewise, cannot fairly be characterized as expressing

“varying views.” The principles set forth by the Florida

Supreme Court in Saunders, Gonzales, White, and Morris

have regularly been applied by Florida appellate courts

to overturn convictions based on facts similar to those

here. The panel ignores this long line of cases in which

the courts have refused to apply the Florida disorderly

conduct statute to speech critical of the police, citing

instead only a single case to support its position, the

decision in L.J.M. v. State, 541 So.2d 1321 (Fla. lst DCA

1989). As explained below, however, L.J.M. is wholly

inapposite here. ;

At the time of Gold’s arrest, there were no fewer than

five precedents from the state district appellate courts

that made clear that Gold’s arrest violated clearly estab-

lished law. For example, in Harbin v. State, 358 So.2d 856

(Fla. lst DCA 1978), a woman was arrested for directly

cursing a Deputy Sheriff who had been sent to accom-

pany her husband to the couple’s trailer while he picked

up his clothes after a domestic dispute. She contended

that her “mere words” were not sufficient to justify a

disorderly conduct arrest under the latest Florida

Supreme Court decisions. Quoting from Saunders, White

and Morris, the district court of appeals agreed, finding

that Harbin’s speech did not constitute fighting words

under the Florida precedents:

The focus of our inquiry here, then, must

revolve around whether appellant’s admittedly

profane words tended to “incite an immediate

breach of the peace.” . . . [T]he most that can be

App. 27

said about appellant's epithets is that they were

offensive to the deputy who made the arrest and

perhaps an object of curiosity to the neighbor

who opened her window.

Id. at 857. Likewise, in K.Y.E. v. State, 557 So.2d 956 (Fla.

Ist DCA 1990), a Florida appellate court overturned

defendant's disorderly conduct conviction for continually

singing “fuck the police” in public. The court found “no

evidence” that the singing “evoked a response tending to

inflict injury or incite an immediate breach of the peace.”

Id. at 957. Defendant’s singing, “while annoying and

offensive to the arresting officer, at best contributed to

attracting a group of curious onlookers, but . . . did not

breach the peace.” Id. See also D.C.E. v. State, 381 So.2d

1097, 1099 (Fla. lst DCA 1979) (holding a minor who

shouted “f ___ pigs” three times at police officers from

the window of his car at a busy intersection did not

violate disorderly conduct ordinance); Clanton v. State,

357 So.2d 455, 456-57 (Fla. 2d DCA 1978) (holding that

man who loudly yelled at a police officer who opened his

passenger door that he “had no damn right to open the

door” did not violate disorderly conduct statute); Phillips

v. State, 314 So.2d 619, 621-22 (Fla. 4th DCA 1975) (hold-

ing that an officer lacked probable cause to arrest a man

who said “F__ you” to a police officer).2 These cases

2 Florida cases decided after the date of Gold’s arrest

confirm that Gold’s arrest was contrary to clearly established

Florida law. See K.S. v. State, 697 So.2d 1275, 1276 (Fla. 3d DCA

1997) (reversing disorderly conduct conviction where

defendant's loud protests of police conduct “were not directed

at the crowd but were instead a coarse expression of frustration

at what K.S. perceived was an unjust accusation”); Miller ¢

App. 28

make clear that the officers could not have reasonably

believed that they had probable cause to arrest Gold

since, as discussed above, his words, though offensive to

the police, did not incite an immediate breach of the

peace, but simply attracted the attention of two curious

bystanders.

L.J.M. does not counsel a different conclusion. In

L.].M., two officers were standing at the side of the street

talking to a group of people when the defendant directly

approached them and addressed certain remarks to them

concerning his arrest the night before on theft charges.

Defendant’s statements were loud and rude, and “every-

body was watching him as he yelled at [one of the police

officers].” The officer tried to ignore the remarks, saying

“[w]e’ll see you in court.” Instead of desisting in front of

the crowd, defendant shouted to the officer, “Man, you

pussy-assed mother fucker.” At that point, he was

arrested~by the officer, who characterized his words as

“disruptive.” In affirming the conviction, the court found

that, in the totality of these circumstances, “it was well

within the discretion of the judge below, sitting as the

trier of fact, to find that appellant uttered the above-

State, 667 So.2d 325, 328 (Fla. lst DCA 1995) (“Pursuant to

Saunders and its progeny, . . . there must be evidence of

something more than loud or profane language or a belligerent

attitude.”); B.R. v. State, 657 So.2d 1184, 1185 (Fla. lst DCA 1995)

(“Although B.R.’s language was frustrating and annoying to the

officer, there was no evidence that her screaming was of such a

nature as to incite anyone in the area to an immediate breach of

the peace.”); L.A.T. v. State, 650 So.2d 214, 217-18 (Fla. 3d DCA

1995) (holding a “ ‘fighting words’ finding . . . constitutionally

unjustified as a matter of law” where “words neither themselves

urged the crowd to respond nor actually had that effect”).

————eeE—__e

App. 29

quoted words with an intent to incite the police officer

and perhaps others to violence.” L.J.M., 541 So.2d at 1323.

L.J.M. has no applicability in this case; there is no evi-

dence in this record that would permit an officer to

reasonably conclude that Gold’s statements were

intended to incite the police officers or anyone else to

violence. Unlike in L.J.M., Gold did not directly approach

the police and had not been arrested the night before by

these officers; the police officers could not possibly have

believed that Gold would lash out at them in violence or

that he was attempting to incite them or any other

bystanders to violence. To the extent that the panel con-

strued L.J.M. to permit criminal liability where an indi-

vidual is simply critical of police conduct, even when the

expression includes a profane word uttered in a loud

voice in the presence of others, that conclusion is in error,

and, as shown above, in conflict, not only with federal

constitutional principles of free speech, but with the clear

law of Florida.

Not surprisingly, the panel’s decision in this case also

conflicts with the decisions of every other Circuit to

address a police officer’s entitlement to qualified immu-

nity for arresting an individual for using abusive lan-

guage. For example, in Duran v. City of Douglas, 904 F.2d

1372 (9th Cir.1990), the Ninth Circuit held that a police

officer was not entitled to qualified immunity for stop-

ping an individual after he insulted the officer. In words

that apply equally here, Judge Kozinski explained that

plaintiff’s insult “represented an expression of disap-

proval towards a police officer with whom he just had a

- run-in. As such, it fell squarely within the protective

A i hd a

App. 30

umbrella of the First Amendment and any action to pun-

ish or deter such speech . . . is categorically prohibited by

x the Constitution.” Id. at 1378. Nor could the officers com-

plain that these First Amendment principles were not

clearly established.

[Gjoverment officials in general, and police offi-

cers in particular, may not exercise their author-

ity for personal motives, particularly in

response to real or perceived slights to their

dignity. .. . Whether or not officer Aguilar was

aware of the fine points of First Amendment

law, to the extent he is found to have detained

Duran as punishment for the latter’s insults, we

hold that he ought to have known that he was

exercising his authority in violation of well-

established constitutional rights.

Id.; see also Knox v. Southwest Airlines, 124 F.3d 1103, 1109

(9th Cir.1997); Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th

Cir.1995). See also Spiller v. City of Texas City, Police Dep't,

130 F.3d 162, 166 (5th Cir.1997) (holding that police officer

was not entitled to a dismissal based on qualified immu-

nity for arresting motorist who told the officer to “move

his damn truck”); Guffey v. Wyatt, 18 F.3d 869, 871 (10th

Cir.1994) (denying qualified immunity to an officer who

arrested a referee at a hotly contested high school basket-

ball game after the referee refused the officer’s order to

call more fouls); Enlow v. Tishomingo County, 962 F.2d 501,

509-10 (5th Cir.1992) (upholding denial of qualified

immunity to a police officer based on Hill but remanding

for resolution of factual disputes); Buffkins v. City of

Omaha, 922 F.2d 465, 472 & n. 16 (8th Cir.1990) (denying

qualified immunity where woman called police officer an

“asshole”); Bailey v. Andrews, 811 F.2d 366, 371 (7th

——

App. 31

Cir.1987) (denying qualified immunity to officer who

arrested plaintiff for stating “I want my damn dog” and

“did you shoot my dog?”).

For all the foregoing reasons, I believe that this case

should be reheard en banc.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.